Exam (elaborations)
Bar Exam, Ethics 1.
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Exam of 11 pages for the course Bar at Bar (Bar Exam, Ethics 1.)
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Bar Exam, Ethics 1Ziems v Prothonotary - ANS-Facts
Barrister attacked. Subsequently crashed into and killed a motorcyclist. Alleged that he
was drunk, however, his condition may have been due to shock and concussion.
Convicted of manslaughter and his name was removed from the roll.
A police sergeant who witnessed the attach was not called by the prosecution -
meaning that the defence had to call him. During the coronial, the police officer
acknowledge that the Barristers behaviour could have been a result of the attack (he
thought that there would have been a cerebral injury caused by the violent attack). The
police sergeant's evidence at trial was not as favourable.
Held: appeal allowed. Suspended from practice during term of imprisonment.
Principles
Jurisdiction / power to disbar and suspend - The power to disbar or suspend someone
is incidental to the power to admit to practice.
Ultimate question - The question is whether the person is not a fit and proper person to
be permitted to practise at the Bar. It is open to look at every fact which can throw any
light on that question. The question is also answered by defining the minimum
standards demanded by reference to the peculiar position and functions of a barrister.
Standard - A barrister must possess more than honesty, learning and forensic ability. A
barrister is in a relationship of intimate collaboration with the judges, as well as with his
fellow-members of the Bar, in the high task of endeavouring to make successful the
service of the law to the community - requiring exceptional privileges and exceptional
obligations.
Personal misconduct - The personal misconduct may be a ground for disbarring
because it may show that the person guilty of it is not a fit and proper to practise as a
barrister, however, the approach is different to professional misconduct (the latter has
much more direct bearing
Clyne v NSW Bar Association - ANS-Facts
Criminal prosecutions commenced against a solicitor to intimidate the solicitor into
ceasing to act on the belief that this would facilitate the settlement of various civil
, proceedings. The criminal proceedings concerned the solicitor 'unlawfully maintaining'
proceedings.
There was no evidence that could sustain the charges.
The Barrister made damaging statements concerning the solicitor in his opening that
were not supported by the evidence. The opening expressly outlined the purpose of the
criminal prosecutions.
The Full Court of the NSW Supreme Court struck the barrister of the roll of barristers.
Decision: appeal dismissed.
Principles
Ultimate question - whether a person is shown not to be a fit and proper person to be a
member of the Bar. This is not capable of a more precise statement.
Standard - An appeal court should not interfere unless it is clear that the discretion of
the Supreme Court has been wrongly exercised (i.e. there is compelling grounds)
Nature of professional rules - they can roughly be divided into two categories:
1. written rules that are conventional in character - designed primarily to regulate
conduct of the members of the profession in relation to one another (i.e. forbidding
advertising, rules in relation to retainers, when SC must appear with a junior. Breaches
are treated seriously but would not warrant disbarment unless it was shown to be part of
a deliberate and persistent system of conduct.
2. Unwritten fundamental rules - a generally accepted standard of common decency
and common fairness (i.e. not to lie to a judge, deliberately misrepresent the law, make
serious allegations without a reliable foundation to warrant the suggestion)
Abuse of privilege - a Barrister enjoys absolute privilege from defamation. Counsel of a
duty to speak out fearlessly. It is essential th
NSW Bar Association v Evatt - ANS-Facts
The barrister was knowing a party to, actively assisted in, and facilitated solicitors
charging extortionate and grossly excessive sums to their clients.
The barrister also himself charged fees which were beyond recognised standards and
were unjustified, and excessive in the circumstances.
The NSW Supreme Court found the barrister guilty of professional misconduct and
suspended the barrister for 2 years.
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