Ethics and Professional Responsibility in Practice
* Following answers were prepared for the final exam. It is written based on the textbook, the lecture note and recommended sources provided by Griffith University. I received 44/55 (80%). Please use this for only reference and guideline purpose.
- Lawyers' professional responsibility - , 2016
- Australian Solicitors Conduct Rules (ASCR), 2012_Queensland Law Society
- Inside Lawyers' Ethics_Christine Parker & Adrian hellier Evans 2014
- Some thoughts on access to justice - 2004
Access to Justice
Q. Discuss the way in access to justice responses have changed over the last few decades in Australia
Ronald says that the principle of ‘access to justice’ imply that there is a realistic prospect of ameliorating the unfair legal consequence of inequality in society.
1960s - 1970s
During this periods, it focused on removing barriers for disadvantaged groups to access to the law and concentrated on the development and expansion of legal aid scheme. Until early 1970s, civil legal aid had been the responsibility of the private profession and some states provided legal aid in criminal matters. In the mid-1970s, there was wave of access to justice reform (e.g Family Law Act 1975), which focused on rights of administrative and judicial review and included the establishment of the Commonwealth Ombudsman.
1980s - 1990s
During this period, public resources available for legal aid increased and it was well found until mid 1990s. The ADR and diversionary programs were formalised and created for the disadvantaged. Also, not only the Legal Aid policies and Anti-discrimination legislation was developed, also people promoted the need for Bill of Rights.
2000 and beyond
Since 2000, the Australian government, legal profession bodies and individual lawyers have adopted up-to-date technology to provide better and quality legal service to the public. In particular, they encourage disadvantaged people to participate identifying barriers and provide the disadvantaged with legal education programs for self represented litigants so that disadvantaged people can access to equal justice.
What do you think are some of the challenges and barriers in responding to people legal needs?
In 2012, the Australia Institute released a report 'Justice for All' which states that around 1.7 million Australians can expect to encounter a legal problem each year. However, there are many challenges and barriers which block disadvantaged people to access to the justice.
Types of barrier to access to justice
Schetzer discusses barriers to access to justice of disadvantaged groups in his article, ‘Access to Jutice and Legal Needs’. Disadvantaged groups are classified by several types such as economic factors, geographic, race/cultural differences, class, gender, indigenous Australia, nature of court proceedings, structure of the legal system, language and the lack of knowledge of legal system.
My opinion of some barriers
In my opinion, the most significant barriers of access to justice are:
- high cost of legal service
- restricted alibility legal aid guideline
Lawyers to charge legal fee below the current market price will get attention by the Senate Standing Committee, the Australian Law Reform Commission and Productivity Commission. Therefore, not many disadvantaged people can forward to pay the high cost ($250 per hour) of legal services.
Restricted eligibility guidelines for legal aid, often make the disadvantaged not to access legal assistance. Legal Aid NSW and the Australia Plaintiff Lawyers Association said that disadvantaged people such as refugees, employees, a debtor or a person who suffers from personal injury are not able to receive legal assistance.
Due to difficulties of access to the interpreter, some legal service providers reply on friends or a person who does not receive a proper interpreting training. These people are not trained so may not able to communicate legal concept. This can also cause issue of privacy and confidentiality.
What are some of the current ways of providing access to justice
The disadvantaged groups can receive the legal service through Pro bono service, Legal Aid, and community legal centres.
Legal aid provides free legal service through duty lawyers for the public who are not able to pay the high cost of legal fee. The areas of free legal service are, criminal law, family law and civil law. However, legal aid does not provide legal services in relation to real estate issues, workers compensation, personal injury, taxation or other commercial transaction.
Community Legal Centres
Community Legal Centres are independently operating non-profit community based organisations that provide free legal services to the public, focusing on the disadvantaged and people with special needs. There are about 2000 centres across Australia.
Lawyers has a duty to foster the availability of legal service for the public in order to protect the right of the public, in particular, for the disadvantaged people. In US, pro bono service is regulated in r 6.1 of the American Bar Association’s Model Rules of Professional Conduct. It says that US lawyers should have at least 50 hours of pro bono publico legal services for those who are unable to pay legal service. In contrast, there is no direct rules to address pro bono service in any Australian jurisdiction. Recently, the National Pro Bono Resource Centre announced an aspirational pro bono target of 35 hours per lawyer.
Aboriginal and Torres Strait Islander Legal Service (ATSILS)
ATSILS is a non-profit, community based Indigenous organisation which is the primary legal service provider to Indigenous Queensland in areas of criminal, family, civil law as well as for prisoners. In addition, it is also engaging in law reform and community legal education. It is available for 24 hour assistance at police stations
Indigenous Family Violence Legal Services (QIFVLS)
QIFVLS helps Aboriginal peoples and Torres Strait Islander peoples with family violence and sexual assault matters.
What contribution can lawyers make?
Schetzer suggests 4 ways to enhance the access to justice by disadvantage people.
- non-government and community organisations stand for disadvantaged groups
- law reform commissions or parliamentary committees focus on consulting disadvantage groups
- professional bodies such as the Queensland Law Society provide more broaden the current legal policy
- individuals lawyers actively involved in legal aid work or pro bono activities.
In my opinion, the legal aids may consider to expand the eligibility guideline and the scope of the legal service including small scale of commercial litigation, workplace matter or personal injury matter for the disadvantaged groups. This will help to reduce the rate of disadvantage people. For individual lawyers, they participate the law reform to enhance wellbeing of the disadvantaged groups, for instance, supporting to pass same-sex marriage act in Queensland. Also, other professional organisations such as law societies or law schools can consider to more actively promote and provide pro bono service for the public.
Key requirement for admission
To be a qualified lawyer, a person must have the equivalent at least 3 year’s full time study of law in the recognised organisations that demonstrate that an applicant has a sufficient legal knowledge in law: s 30 Legal Profession Act 2007 (Qld)(‘LPA’) and r 6 Supreme Court (Admission Rules) 2004 (Qld) (‘SCAR’). Also, the Uniform Admission Rules requires that an applicant must complete at least 1 year’s articles of clerkship with a lawyer, enrolled in practical legal training (PLT) course or a combination of each to be admissible.
In addition, an applicant must prove that he/she is a fit and proper person to admitted, which process is called the ‘basic character requirement’: s 9(1), s31(1) of LPA. The key reason for this process is to show that a person is entrusted by the public with their affairs and confidence in whose integrity the public can be confident: Ex Parte Lenehan; Frugtniet.
Mutual recognition regime
There is the Mutual Recognition Act 1992 (Cth) which is concerned with not only the recognition of admission to practice but also, a person who already admitted in one Australian jurisdiction who seek to be admitted in another.
What is the approach of the court in these cases?
An applicant’s previous criminal conviction, behaviours, infirmity or improper conducts such as academic misconduct are seriously considered during admission processing. This can become great hurdles for some people who has criminal history. However, as long as you fully and honestly disclose previous criminal history or improper conducts for showing great effort of rehabilitation the court will consider and admits to practice.
What are the reasons people are refused admission
Previous criminal history
Depending on the nature of crime, criminality will be admissible or inadmissible. In KMB, the applicant has a criminal history of sexual offence against a minor. The court rejected his admission since he is not a fit and proper person to be admitted. In Thomas, the applicant committed nine offence relating finance against his employer and the court ruled that this applicant is not suitable to admit to practice. In Re Application by Saunders, the applicant received 2 years of Austudy allowance while failing to disclose his employment earning to Centrelink. The court rejected his admission. A current practitioner may also be removed at any time if he/she involve in fraudulence: Tatar.
Previous improper conduct in the curial process
In Jackson, the court refused to admit the applicant since the applicant made a false statutory declaration, knowingly given false evidence as to proceeding.
Failure to disclose academic misconduct
To be admissible to practice, an applicant must disclose all academic misconduct. Mark Thomas says that law schools deal with the issue of the academic conduct less formal. I believe that this could be a reason that an academic misconduct was 49% increased from 1963 to 1993. The Victorian Legal Admission Board says that academic misconducts should also includes student has received a warning, marks have been deducted, any allegation was made or any investigation took place. In Re OG, a Lawyer, an applicant received 0 marks for assessment but did not honestly disclose this. However, Francesca Baetlett is arguing that current developing admission law trespass into the area of academic decision-making. He says it is just outside of the scope of the court.
Mentally unstable legal practitioner will be inadmissible to practice. In S v Legal Practice Board of Western Australia, an applicant was denied to admit due to the severe depression which lead to a suicide attempt, the court believed that an applicant was not able to perform the lawyer’s duty and cause the damage the public.
What are the emerging issues about admission for law students
There are no strict rules or regulation in regard to the use of social media by law students per se. However, the Queensland Law Society recognises the seriousness of using social media and address quickly by published the ethical guideline for future and current legal practitioners. By negatively engaging to use the social media will cause breach rules 4 (ethic duties), 28 (public comment during current proceedings), 33 (communication with another solicitor’s client), 34.1.3 (dealing with other person), 22.1 (communication with opponents) of ASCR. Illegitimate use of social media while work as a clerk or trainee will not only damage of practitioner himself/herself which may prove ‘not fit and proper person to admit’ also cause profound damage to the client or even the public.