Week 4 Admission to Practice; the LawyerClient relationship
Readings Chapters 12 & 13
Special instructions: you must read Legal Profession Uniform Law 2015 (NSW), Chapter 2, Part 2.2, Sections 15-29, Legal Profession Uniform Admission Rules 2015 (NSW) Rules 4, 5, 6, 10, 14, 16-19, 21, Schedule 1 (number 13 only), Schedule 2 (number 18 only), and Montenegro v Law Society of NSW [2015] NSWSC 867 (2 July 2015) Ray & Anne discuss Admission to the Profession Ray is a first year law student. Ray is interested in becoming a legal practitioner and looks forward to the several years of study ahead of him. Ray understands that he has to earn a law degree but does not know what else he needs to do to become a legal practitioner. Ray hears from a second-year student that he needs to do more studies beyond his law degree and that he has to pass a character test. Ray is not sure what more studies entails nor does he understand what the character test means. Ray meets up with another first year student, Anne, and they both begin talking about becoming legal practitioners. When Ray mentions the extra studies and the character test Anne goes quiet. Anne later mentions that she does not know much about the extra studies but she's heard that you need to be a 'good person' to be a legal practitioner and that she is worried about whether she would be classified as 'good'. A little more chatting and Anne mentions that when she was eighteen years old she had been working as a retail shop assistant. Anne then discloses that she became good friends with an assistant manager who 'taught' her that if she processed some cash sales a certain way she would be able to make a bit of extra money. Anne told Ray that she was, in conjunction with the assistant manager, stealing money and when the manager discovered this she was charged and convicted of larceny. Anne was fined $1000 and placed on a good behaviour bond for two years. Anne is now 22 years old. Ray is intrigued about these ideas and starts to fossick through the library for information. He thinks he found some information in the legislation. He also found a case or two, but is not sure if they helped him as they were about practitioners who were seeking re-admission. Ray wonders whether he will need to disclose the fact that he is a regular user of marijuana. When Anne begins reading a textbook about lawyers she discovers that admission is an indicator of professionalism. She also thinks the cases say that if you do something wrong the main thing is the length of time between the thing done wrong and the point of seeking admission.
Advise Ray and Anne.
Antoinette retains EF (and Helen?) Antoinette is the President of a non-profit community organisation (BCD) assisting migrants and the disabled in NSW. She has the BCD's Board's authority to issue instructions on behalf of BCD. The solicitors used by BCD are EF Solicitors (EF). Antoinette normally deals personally with Gregor (G), a senior partner. EF do most of the work at markedly reduced rates and currently have a retainer and costs agreement covering the following work: preparation of statutory reports on behalf of BCD, advising on workplace issues as required, and drafting contracts for sub-contractor services. Antoinette is very concerned about the federal government's budget changes and the cutbacks announced for the non-profit sector. During January Zelco, a board member of BCD meets Gregor to discuss the year ahead, as Antoinette is on holidays. Zelco mentions, in passing, that he is concerned about the federal government's budget and foreshadowed cutbacks. During the course of the discussion Zelco said he would like to know what the likelihood of a successful High Court challenge to the federal government's position would be. Gregor, who is making notes, writes: "Get advice about High Court challenge". A week later, when reviewing the notes Gregor sees the comment about the High Court and briefs Helen SC (H) to answer questions about the budget cutbacks, including the constitutionality of reducing funding for the non-profit sector. Gregor also seeks an actuarial report about the foreshadowed changes to BCD under the budget cutbacks. Helen's memorandum of advice states, among other things, that a High Court challenge could be successful and provides a draft of an application to the High Court. Gregor reads the advice, briefs Helen to prepare the case and lodges the application with the High Court Registry. In February Antoinette emails Gregor for an update on advice she sought about a separate Work Health & Safety issue. Gregor is caught up in other litigation and replies: All going well. Will send you the advice asap. When Gregor sends the advice in mid-February it is that provided by Helen and the actuary. Antoinette immediately asks how Helen became involved and that she, Antoinette, is not willing to pay Helen's fee, nor the actuarys (which came to $5000). Helen has spent several weeks in research and preparation. Concerned by what has transpired Antoinette tells Gregor in late February that he is not to proceed with the case and that his firm must stop doing work for BCD until Antoinette and Gregor meet the following week. In the meantime Helen sends BCD her bill, amounting to $20,000. It is clear that Helen has charged for her time correctly, but not at a reduced rate, as EF does. Antoinette is furious and writes to Helen saying she will not pay. Subsequently, Zelco, who has learnt of Helens advice, approaches Helen in a personal capacity seeking to obtain advice of a similar nature. Helen refuses to act for Zelco. Consider this scenario and advise each of the parties.