Ethics_ Conscience _ Professionalism - Queensland Law Society

							teleconference




                 Member Benefit Teleconference:
                 Ethics, Conscience and Professionalism
                 Wednesday 7 May 2003
                 5.30pm – 6.30pm
                 via teleconference
           teleconference




Scenario
                               Ethics and Professionalism

Scenario – Big City Firm (‘BCF’)
Liam partner for eight years. Looking to retire early.

Zac     junior practitioner. 3 years at BCF, 2 as an articled clerk.

Nelle   highly regarded barrister at the bar for 12 years.

PPD     Professional Property Developers. Client of BCF.

ICT     Inner City Townhouses (represented by Body Corporate)

Zac works for BCF and arrives, as usual, at 7.00am for another 12 hour day. Working for the big firm has its
advantages, but he is concerned he has not met his billable target last month and is under pressure to do so
this month. He is the only one in the division behind budget.

He works directly under the supervision of Liam, the partner in charge of his division. Today he is working
on a file for Professional Property Developers (‘PPD’), the firm’s largest client, and which provides 50% of
the fees of his Commercial division. Liam gave him the file and told him that PPD wanted to object to a
development application by Inner City Townhouses (‘ICT’) and has asked Zac to telephone PPD to get
detailed instructions.

Zac telephones PPD to obtain detailed instructions and the CEO tells him that the reason for PPD’s
objection, is that they themselves, have a development in the pipeline very close to the proposed
development of ICT. He tells Zac that, whilst PPD has no intention to taking the matter to trial, they
nevertheless want to put in an objection to the ICT application and, at the appropriate time, file an objector
appeal in the Planning & Environment Court. In relation to the initial notice of objection, Zac asks the CEO
what the grounds of objection should be, to which the CEO replies ‘Don’t bother me with that detail, just see
Liam, he knows the drum. He and I have done this plenty of times before’.

The CEO goes on to say that when the time for lodging the objector’s appeal comes around, Zac should
again not bother him with the detail of grounds of appeal, just put anything in which looks impressive and
will give maximum pain to ICT and again suggests that he see Liam and not bother him with the details. He
finishes the conversation by telling Zac that he has a cheque for $10,000 he’s sending in to pay for an old
account of $8,000 and $2,000 for counsel’s fees in this matter, in case Liam thought they should use a
barrister.

Zac goes to Liam for some guidance with these instructions. Liam has done very well in past years as
Commercial Partner, bringing in some very lucrative clients and is planning to retire in the next year or two.
There has been high staff turnover in his division lately and he is tired of investing so much of his time
mentoring the junior members of his team. The ratio of employed solicitors to partners has been increasing
over the years and has now been adopted as a firm policy. Financial consultants pointed out that this policy
would be more profitable for the existing partners, but Liam’s not sure if it is worth it.

When Zac knocks on his door for some assistance with the PPD file, Liam sighs, but understands how
important a client PPD is and decides that he must vigorously represent them to achieve the best possible
result for his client. He brainstorms some legal strategy and particular tactics he might employ.




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                                                                         Ethics and Professionalism – Scenario


He firstly asks Zac:

        “How much pressure do you think ICT can absorb? They probably cannot afford such a delay,
        because the entire project is relying on borrowed funds and there is no room in the marketplace at
        this time for 2 such developments. PPD wants to delay the ICT application for as long as possible,
        so that they can get their development up and running. Even if we could get them 6 months that
        would probably be too much pressure for ICT.”

Liam emphasises to Zac that he should run the appeal at minimal cost, reminding him that PPD has no
intention of going to hearing and only wants to use the appeal process to delay ICT.

Zac is still confused and details to Liam the conversation he has just had with PPD. Liam firstly says that the
$10,000 should be banked in the firm’s general account and, if any counsel’s fees are incurred down the
track, then they should be paid out of the general account. He explains to Zac that PPD is the firm’s biggest
client and its CEO hates getting involved in detail ‘Just do what they say and don’t ask questions. If you’ve
got any queries, see me.’ Liam says to Zac.

Liam hands Zac a sheet which has a series of objections, all very generic in nature, and says ‘Here, use this.
There’s no need to get too particular.’ Zac prepares a Notice of Objection and submits it to the local
authority.

After that, Zac attacks the itemized list of costs that PPD has asked for. He puts everything in the bill he
thinks is a correct and proper representation of the work he has done on this file. Still, it looks low and he
knows it won’t contribute much toward meeting his monthly target. He shows it to Liam, who doesn’t look
at the itemised list, but simply looks at the bottom line and exclaims,

        “Is that all? No wonder you’re not meeting your targets! I know the client says the action should be
        run on a shoestring because they won’t be going to trial, but you should still spend as many hours as
        possible doing research or generally just doing anything at all, so long as there is a decent bill in it
        at the end. And now that we’ve spent 30 minutes going through this list of costings, how about
        including that?”

Zac takes back the itemized list and adds in Liam’s suggestions.

In the fullness of time, the objection is rejected and Zac discusses with Liam the procedure for appeal. Liam
hands Zac another sheet of paper with a series of grounds of appeal, again very general and says:

        “‘Here. Draw a Notice of Appeal and send the brief up to Nelle. The client thinks it’s harder than it
        looks. Don’t forget to tell Nelle that it really doesn’t matter what the grounds of appeal are like,
        because the matter’s not going to go to trial. Have a yarn to her as to how the appeal process can be
        delayed, because the client wants to buy at least 6 months time.”

Again, Liam cautions Zac against bothering the client for instructions and just tells Zac to get on with the
job. He explains that when the process of disclosure comes along, Zac should simply prepare a list of
documents including the formal documents of the objection notice and the Notice of Appeal. Zac asks
whether he should get the client’s file so that he can prepare a comprehensive list of documents, but Liam
tells him there’s no need for that because the thing’s not going anywhere anyway. When Zac queries that
approach, Liam barks at him ‘Just do it. Without PPD, this firm’s nothing.’

Zac briefs Nelle to settle the grounds of appeal. Nelle receives the brief and immediately realises that she has
an investment in the mortgage company providing the development finance to ICT for this project. She
knows full well from the ICT application that ICT can’t sustain any long delay with this project and is
immediately concerned that if the appeal process is delayed, ICT will find itself in financial difficulty and
the project may be lost, resulting in a grave threat to her investment.



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                                                                        Ethics and Professionalism – Scenario


She reveals nothing to either Zac or Liam, settles the Notice of Appeal and returns it to Zac. She then rings
Liam to confirm that she has sent the Notice of Appeal back and engages him in conversation. In the course
of the conversation, she says to Liam ‘Are PPD serious about this appeal?’. Liam says not and that they are
only putting the appeal in to buy time as PPD reckon that if 6 months delay can be achieved, the ICT
development won’t be able to proceed. Nelle hangs up from speaking with Liam and immediately rings the
Chairman of ICT and tells him, on a confidential basis, that the PPD appeal is not genuine and is to be issued
for delay purposes only and that ICT should aggressively progress the matter to obtain a hearing date as soon
as possible because PPD will probably withdraw the appeal under that sort of pressure.




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             teleconference




Transcript
Ethics and Professionalism – It’s the Grey Areas That Blow Up
The ethics panel: District Court Chief Judge Patsy Wolfe; Professor Charles Sampford, director of Griffith
University’s Key Centre for Ethics, Law, Justice & Governance; David Searles, QLS senior counsellor,
accredited mediator and McCullough Robertson partner; Patrick Collins, manager of the QLS Client
Relations Centre.

•        Zac’s duty is to get proper advice on how to conduct himself because of the advice he’s getting from
         senior partner Liam.

•        Liam’s attitude to measuring and training junior practitioners is cynical.

•        is it part of the legal armoury of lawyers to cause maximum pain to the other side, rather than it
         being a product of legitimate action?

•        PPD is of such importance to the firm it might impact it’s capacity to give independent advice.

•        over-servicing – Liam’s advice to Zac to do unnecessary work to pad the bill. Does Zac cross the
         line to reach monthly budget? He is over-servicing and time taken to calculate charges is not
         billable.

•        Are the firm’s fee and billable hours pressures reasonable?

•        the $10,000 cheque is mainly for a previous account and $2,000 is for future counsel fees – should
         the cheque go into the general account?

•        the solicitor is taking instructions on behalf of a client rather than directly; the partner is anticipating
         client instructions because the action is one he’s done many times before. There is an obligation to
         obtain specific instructions.

•        barrister Nelle has a conflict of interest because of her financial interest in the company lending to
         the respondent.

•        barrister Nelle fails to maintain confidentiality.

•        what are the legitimate tools available to lawyers to develop legal strategy and to work within it?

•        Liam’s attitude to the important issue of disclosure is cavalier.

•        there is no intention of taking them to trial so lodging objections raises ethical considerations.


Sampford:
There are a lot of black and white issues here but think about the grey areas and the conception that the role
of a lawyer is to cause maximum pain to the other party. That’s something your client might want but is
causing maximum pain just zealous advocacy? And having a spurious appeal to the Environment Court is a
dark shade of grey if not black. Is there a distinction between a spurious objection to council and a spurious
appeal to court?


Panel:
Is it objectionable for a client to want to proceed with a development when it chooses, yet it can only if the
first development doesn’t go ahead? Is there a role for a lawyer there? Why shouldn’t they object to the first
development?

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                                                  Ethics and Professionalism – It’s the Grey Areas That Blow Up


Delegate:
What should the young solicitor do? If the bells are ringing who should he speak to? Does he have a duty to
obtain advice?


Sampford:
When we look at the issues we might say some are OK and some not. With those not OK do we want
lawyers doing these sorts of things? A tougher question is, do we want people to put these sorts of things to
lawyers and what do we do about it? Ethical questions are about what we consider our profession should and
shouldn’t do. What is our role, what is outside that role? What do we do about it? There’s a lot of
concentration now on lawyers who have lapsed. But the horse has bolted there, that can’t be the core of
ethics. Pre-lapse advice is more important than post-lapse punishment. The biggest issue for lawyers is not
about dealing with punishment but what do we think good lawyering is about and how do we communicate
and persuade each other. The collective responsibility is to make these issues unlikely. This isn’t about Zac,
Liam or Nelle but about the profession and how we encourage good practice and discourage bad practice.
This is about deliberating and this is a very good workshop because we are thinking about what kind of
practices we encourage and what we discourage. Do we have mechanisms so Zac can get advice? Not every
supervising partner is going to be great so what does the firm and the profession do for Zac to get advice on
how to be a ‘good’ lawyer?


Wolfe:
This isn’t just playing with whipped cream. What we are concerned about too is that lawyers make money,
have satisfied clients, assist their clients. I wouldn’t look at this as though PPD is wicked. They’re paying
good fees and keeping the firm in business. Why can’t they be given independent advice, good advice?
Instead the lawyer looks at it as a quick fix. You don’t have to be unethical to make money every time.


Searles:
In every firm there should be a culture that if someone, like Liam, is tired and cutting corners there is
someone else in the firm to go to for advice. That’s not always the case in single or small practices but every
firm should have an ‘anchor’ culture of ethical behaviour and a system to encourage anyone to come forward
anytime for assistance.


Sampford:
The earlier it comes up the less confrontational it is. Small issues can be solved. The sooner it’s taken up, the
more it’s encouraged, the more it says we, as professionals think through what we’re doing. It’s about senior
people helping juniors think through issues and each of them learning through that.


Delegate:
It’s not a perfect world and PPD are a large client so what options does Zac have without going outside?


Collins:
The Law Society has a fundamental role to play and we do. The Client Relations Centre takes calls daily
from practitioners seeking assistance. We also refer solicitors to senior counsellors and we offer Lawcare.


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                                                  Ethics and Professionalism – It’s the Grey Areas That Blow Up


Delegate:
Solicitors are officers of the court and we seem to be directing our discussions at ad hoc resolution of certain
problems. Our duty to the court is to assist the court in deal with the important issues in a case rather than
having evidence which wastes the court’s time.


Wolfe:
In the last few months, especially in the UK, the courts are becoming outspoken, frankly vicious, over time
wasting and misleading the court and sanctions are used, right down to exemplary damages. For example,
Nelle breached basic equitable duties and would be looking at horrific exemplary damages.


Delegate:
Ethics is a positive thing, what values we are trying to achieve. I always try teach people what’s good about
being a lawyer – does this make me a better lawyer, does this help me do justice, does this help me pursue
my client’s interests through the law?


Searles:
I lecture ethics at three universities – once it was just a part-time subject but now it’s a serious full unit
subject. Most firms also have internal CLE programs on ethics and in their induction programs and QLS has
a similar program. Young solicitors are very interested in conducting themselves properly and appalled at
‘ethics’ in the commercial world, like HIH, OneTel, WorldCom. As a senior counsellor most of the enquiries
I get are from people asked to do things by employers who don’t give them adequate instructions and when
they seek further instructions it’s apparent they’ve been dumped with the problem and the delegator doesn’t
really know what to do. I’ve had young practitioners see irregular handling of money – under the rules that’s
a reporting duty and if there’s a breach it’s to be reported to the Law Society. But one of the main pressures
for a young lawyer is the moment you reach your budget you’re rewarded with a bigger one next year.


Delegate:
As an articled clerk in a one-partner firm my perspective is that a lot of young practitioners instigate
education programs within the firm. Young practitioners are aware of their duty, particularly to the court and
the client. I don’t think anything is lacking in legal education, it’s lacking in the firm. There’s a lot
practitioners can do, particularly partners, to encourage legal education.


Delegate:
Young solicitors in big firms have to face unbelievably high financial targets and senior partners must look
to themselves and their corporate ethics. They’re the ones who impose the targets.


Sampford:
I don’t see it as a big solicitor, small solicitor thing. There are temptations and we’ve got to recognise the
pressures and do something about it collectively. Of course the more senior you are the greater your
responsibilities.




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