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Posted: August 20th, 2023

Professional responsibility and legal ethicsLAWS2015/LAWS7066.

Professional responsibility and legal ethics

You are required to answer all questions in this examination.

Page 2 of 6 (Revised – Question 1)
Question 1 (20 marks)

The following events took place in New South Wales. Maddie, a barrister specializing in criminal law, was hired by Stefan, a solicitor, to represent Ollie in a murder trial. The prosecution alleged that Ollie intentionally stabbed Lydia, his long-term girlfriend, resulting in her death. Ollie pleaded not guilty and claimed that her death was an accident.

The agreed-upon facts were that Ollie and Lydia were talking on the patio of Ollie’s house, drinking alcohol in the afternoon of June 2, 2022. Ollie told Lydia that she needed to seek help for her alcoholism or move out. This upset Lydia, who went inside the house and returned holding two beer bottles and a knife. Lydia sat down, waved the knife around, and pointed it at Ollie and herself. Ollie tried to take the knife from her, resulting in Lydia getting cut on her fingers. Ollie eventually got hold of the knife and bandaged Lydia’s wound. They continued their conversation and drinking on the patio.

Lydia, who had been heavily drinking, became aggressive and started physically attacking Ollie. She went into the kitchen, and Ollie followed her. According to the prosecution, Ollie intentionally stabbed Lydia once in the chest, causing her death. Ollie, on the other hand, claimed that Lydia lunged at him and impaled herself on the knife he was holding unintentionally.

Maddie, unaware of Ollie’s confession to Stefan, defended Ollie based on his claim of unintentional injury. Maddie argued that Lydia was solely responsible for her fatal injury and that Ollie should be found not guilty. However, due to forensic evidence in the kitchen contradicting Ollie’s version of events, the jury found Ollie guilty of murder, resulting in a 15-year prison sentence.

After his conviction, Ollie lodged an appeal, claiming two material irregularities affected the trial outcome. First, he argued that Maddie was incompetent for failing to request a jury direction on self-defense. Second, he claimed that Renata, the prosecutor, had a duty to call a witness named Enea, who was not called due to her perceived unreliability.

Ollie also lodged complaints with the Office of the Legal Services Commissioner (OLSC) against Maddie, Renata, and Stefan. The OLSC referred the complaints to the Bar Association of New South Wales and the Law Society of New South Wales for investigation.

In this scenario, complaints could potentially be lodged against Maddie, Renata, and Stefan. The outcomes of these complaints could vary depending on the investigations conducted by the Bar Association and the Law Society. Maddie could face disciplinary action if found to be incompetent or in breach of her professional obligations. Renata, if found to have neglected her duty to call a relevant witness, may also face disciplinary consequences. Stefan’s behavior might be examined for any ethical violations or misconduct in advising Ollie to withhold crucial information during the trial.

Regarding Ollie’s appeal, the grounds presented relate to professional responsibility and ethics, focusing on the alleged incompetence of Maddie and the failure of Renata to call a witness. If the appeal court finds merit in these grounds and determines that the irregularities affected the fairness of the trial, it could potentially result in a finding of a miscarriage of justice, leading to a new trial or other appropriate remedies.

For LAWS7066 (JD) students only – please answer the following as an extra component of your answer to Question 1

After the trial, Renata spoke to the waiting media and made a statement implying that Ollie had terrorized Lydia for hours before the incident. This statement was not supported by any evidence presented during the trial.

In this case, Renata’s statement to the media, implying facts not presented as evidence during the trial, raises ethical concerns. Lawyers have an ethical duty to maintain the integrity and fairness of the legal process, including refraining from making statements that may prejudice public opinion or compromise the accused’s right to a fair trial. Renata’s statement could be seen as a breach of professional conduct and ethics, potentially subjecting her to disciplinary action or other consequences.

Page 4 of 6 (Revised – Question 2)

Question 2 (15 marks)

Answer all of Question 2(A), 2(B), and 2(C)

Consider the following scenario and answer the three sub-questions that follow.

You are a lawyer in New South Wales and an officer of the Supreme Court. You are deeply concerned about the current scientific reporting on anthropogenic climate change. The local division of the Extinction Rebellion environmental protest group (XR) plans to engage in protest activities in Katoomba, blocking the entrance to leading supermarkets and the township’s railway station. These actions would disrupt normal operations and inconvenience people.

Question 2(A)

Are there any legal justifications that would make it professionally acceptable for you to directly engage in the proposed protest action?

Question 2(B)

If you were to engage in the protest actions and were charged and convicted, what are your personal professional obligations?

Question 2(C)

If you were found guilty of a charge under section 214A of the Crimes Act 1900 (NSW), what are the possible disciplinary processes and sanctions you could face?

Page 6 of 6 (Revised – Question 3)

Question 3 (10 marks)

In response to the question “What are the ethical challenges faced by lawyers who represent Aboriginal and Torres Strait Islander peoples?” ChatGPT provided the following answer:

Lawyers who represent Aboriginal and Torres Strait Islander peoples can face various ethical challenges due to the unique social, historical, and cultural context in which these communities operate. Some of the key ethical challenges faced by lawyers in this context include:

Cultural competence
Communication barriers
Trust and rapport
Access to justice
Balancing cultural obligations
Overrepresentation in the criminal justice system
It is important for lawyers representing Aboriginal and Torres Strait Islander peoples to engage in ongoing self-reflection, education, and collaboration with Indigenous communities and organizations to navigate these ethical challenges and provide effective representation.

(i) Select three (3) of the dot points above:

Cultural competence
Trust and rapport
Overrepresentation in the criminal justice system
(ii) For each of the selected dot points, choose at least one distinct primary (law) or secondary (commentary) source that helps us understand each of the dot points you have selected:

Cultural competence: “Cultural Competence for Lawyers: A Guide for Representing Aboriginal and Torres Strait Islander Peoples” (Law Council of Australia)
Trust and rapport: “Building Trust and Rapport: A Handbook for Lawyers Working with Aboriginal Clients” (National Aboriginal and Torres Strait Islander Legal Services)
Overrepresentation in the criminal justice system: “Pathways to Justice: An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples” (Australian Law Reform Commission)
(iii) Describe and explain the ethical importance to lawyers for each of the three sources that you have chosen:

Cultural Competence for Lawyers: A Guide for Representing Aboriginal and Torres Strait Islander Peoples: This source provides guidance on the ethical importance of cultural competence for lawyers representing Indigenous clients. It helps lawyers understand the unique cultural values, traditions, and practices of Aboriginal and Torres Strait Islander peoples. By being culturally competent, lawyers can better serve their clients, respect their cultural rights, and ensure effective communication and collaboration.

Building Trust and Rapport: A Handbook for Lawyers Working with Aboriginal Clients: This source highlights the ethical significance of building trust and rapport with Aboriginal clients. It recognizes the historical injustices and systemic biases that have eroded trust between Indigenous communities and the legal system. By establishing trust, lawyers can create a safe and respectful environment, demonstrate empathy, and advocate for their clients’ interests effectively.

Pathways to Justice: An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples: This source sheds light on the ethical importance of addressing the overrepresentation of Aboriginal and Torres Strait Islander peoples in the criminal justice system. It emphasizes the need for lawyers to challenge systemic biases, advocate for fair treatment, and work towards reducing the disproportionate incarceration rates. By doing so, lawyers contribute to promoting justice, equality, and the protection of human rights.

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