Legal Ethics Exam Notes
Table of Contents
Standard Conception of the Lawyers Roles and Theories of Ethics 1
Standard Conception of a Lawyer 2
Collateral Lawful Advantage 5
Theories of Ethics 5
The Regulation of Legal Practice in New Zealand 7
Client Care and Competence 9
Client Service 9
Competence 9
Continuing Professional Development (CPD) 11
Admission to the Bar / Complaints and Discipline 11
Admission 11
Conduct at University 14
Complaints and Discipline 14
Standard Committee 15
Rule of Law and Administration of Justice (Chapter 2) 17
Confidentiality, Privilege and Disclosure 18
Disclosure 18
Confidential Information 19
Privilege 20
Conflicts of Interest 21
Independance 22
Four Types of Conflict 25
Fees, Professional Dealings, Professional Practice 28
Fees 28
Professional Dealings 29
Professional Practice 31
Advocacy Ethics, Barristers, In-House Counsel 31
Wider Responsibility of Lawyers in the Community 36
1
,Standard Conception of the Lawyers Roles and Theories of Ethics
Standard Conception of a Lawyer
Rationale: There's something about the lawyers role, which makes it true that lawyers can do things which would be
immoral if they weren't acting as lawyers.
Case Examples
Zabella v Pakel 242 Facts: P owes Z $5000, wrote a simple draft contract but P declared bankrupt before
F2d 452 repayment. Z sued for a promise to repay debt but bankruptcy is a defence. Later P became
rich and could pay.
Held: The court felt obliged to allow the defence, though they thought Pakel being "in a
position of some affluence ... should feel obliged to pay an honest debt to his old friend,
employee, and countryman".
● But legally not required.
Mark Dollimore: Facts: D was lawyer and client charged with drink driving. D knows the client was appearing
Debbie Ashton under a false name from the witness protection programme and has no record - on face.
Under 10.7 Rules of Professional Conduct, defence counsel must not disclose a client's
previous conviction without clients authority. 1 month later the drove fatally into Debbie
Ashton.
Held: Defence lawyers were allowed to deceive court from omission. Lawyer can rely on
rules and can act with omission to deceive.
I. Principle of Partisanship/Duty of Zeal
Rationale: Lawyers duty is to their clients' interest and not help the otherside.
Mere-Zeal The merely-zealous lawyer … is to zealously pursue the client's legal rights. He is to be partisan in
the sense that he must bring all of his professional skills to bear upon the task of securing his
client's rights. But he is under no obligation to pursue interests that go beyond the law.
Hyper Zeal The hyper-zealous lawyer is concerned not merely to secure her client's legal rights, but to pursue
any advantage obtainable for her client through the law.
II. Principle of Neutrality
Rationale: If lawyers were to substitute their own private views of what ought to be legally permissible and impermissible
for those of the legislature, this would constitute a surreptitious and dangerous shift from a democracy to an oligarchy of
lawyers.
The Cab Requires a lawyer to take on any case within their area of competence, as though they were the next
Rank Rule cab or taxi at the rank.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
Chapter 4 Availability of lawyers to public and retainers
A lawyer as a professional person must be available to the public and must not, without good
cause, refuse to accept instructions from any client or prospective client for services within the
reserved areas of work that are within the lawyer’s fields of practice.
2
, Refusing Lawyers are not Judges. “If he refuses to defend, from what he may think or the charge of the
Instructions defence, he assumes the character of the Judge.” (Thomas Erskine, R v Paine)
Good 4.1. Good cause to refuse to accept instructions includes a lack of available time, the
Cause instructions falling outside the lawyer’s normal field of practice, instructions that could
require the lawyer to breach any professional obligation, and the unwillingness or
inability of the prospective client to pay the normal fee of the lawyer concerned for the
relevant work.
Not Good 4.1.1 The following are not good cause to refuse to accept instructions:
Cause a) any grounds of discrimination prohibited by law including those set out in
section 21 of the Human Rights Act 1993:
b) any personal attributes of the prospective client:
c) the merits of the matter upon which the lawyer is consulted.
4.1.2 A lawyer who has a retainer under which he or she is to remain available to
receive instructions from the client concerned is entitled to decline instructions from
others that would be inconsistent with the lawyer’s obligations under the retainer.
III. Principle of Non-Accountability
Rationale: If counsel is bound to act for such a person, no reasonable man could think the less of any counsel because
of his association with such a client, but if counsel could pick and choose, his reputation might suffer if he chose to act
for such a client, and the client might have great difficulty in obtaining proper legal assistance. Rondel v Worsley [1969] 1
AC 191, 227 (HL).
IV. Standard Conception of a Lawyer assumes Role Differentiation
Role Differentiation
Ethical obligation … attached primarily to social roles. There are numerous roles within communities, and individuals
inevitably occupy more than one… as I move from role to role, the obligations and permissions to which I am subject
alter, and those which apply to me in one role may conflict with and take priority over those of others.
The conduct of Pakels lawyer seems to violate a plausible maxim of ordinary or general morality, but, the claim foes,
his conduct is not properly judged from that perspective alone. The fact that he was acting within his professional role
provides him with a defence against those who question the ethical propriety of his conduct.
Miscellaneous Cases
Lake Pleasant Facts: The lawyers also said they had kept their discovery from the father of one of one of the
bodies case women, who had visited them in the hope that they could shed some light on the disappearance
of his 20 year-old daughter.
Held: "The information was so privileged – I was bound by my lawyer's oath to keep it confidential
after I found the bodies," said Francis Belge, one of the two lawyers representing Robert Garrow.
Mr. Garrow, a 38 year- old mechanic for a Syracuse bakery, is accused of fatally stabbing Philip
Philip Domblewski, and 18 year-old Schenectady student who was camping in the Adirondacks
last July.
The Triangle Facts: 146 sweatshop workers died from fire. Legislation banned owners from locking doors but
Shirtwaist Fire did anyways. The owner's defence lawyer asked the girl for testimony which seemed rehearsed
Case and was like “did you miss a word here” etc and destroyed her credibility with the jury during
cross examination. Owner acquitted. Not right but the lawyer was doing his job.
3
, Criticism of
Standard Held: Encourages lawyer to deny responsibility and moral agency. Promotes moral and sensitivity
Conception within and outside the role. Reduce professional competence - client could ask for lawyers moral
opinion. Leads to a disability crisis of morale in the profession.
Spaulding v Facts: S was a passenger with Z driving. There was a crash. 3 medical experts did not notive S
Zimmerman 116 had aneurysm which probable caused the accident.
NW 2d 704
(Minn 1962) The defense lawyers, knowing that Spaulding and his lawyers were unaware of the aneurysm, did
not disclose this this injury or make representations concerning the scope of their client’s
injuries.Two years later, Spaudling’s aneurysm was detected at a medical examination given
when he enlisted in the military reserves. He was rushed into vascular surgery. At no point in the
intervening two years had anyone from the from the defense team –the client, the lawyer, or Dr
Hannah – attempted to warn Spaulding of the threat to his life.
V. Critiques of Standard Conception
1. Alienates lawyers from ordinary morality
● Effective adversarial advocacy ... demands measures that are unacceptable from a moral point of view.... A
firm and settled disposition to truthfulness, fairness, goodwill, and the like would thwart the lawyer’s capacity
to do his tasks well. To excel as a lawyer, it would be beneficial to possess combatative character traits such
as cunning.
● Andreas Esthete ‘Does a Lawyers Conscience Matter?
● e.g., Triangle Shirtwaist Fire Case
○ In cross examination, he asked the witness what she saw. The lawyer was trying to destroy the
witness's credibility by repeatedly asking her to say what she saw and take advantage of him messing
up.
○ The sweatshop was acquitted. The lawyer didn’t actually do anything wrong though
2. Encourages lawyers to deny responsibility and hence moral agency
● [Role] identification is a strategy for evading one's freedom and, consequently, one's responsibility for who
one is and what one does. By taking shelter in the role, the individual places the responsibility for all his acts
at the door of the institutional author of the role.
● Gerald Postema ‘Moral responsibility and professional ethics’ at 74
3. Promotes moral insensitivity both within and outside the role
● Concern for communities
● Concern for lawyers
● To become and be a professional, such as a lawyer, is to incorporate within oneself ways of behaving and
ways of thinking that shape the whole person. It is especially hard, if not impossible, because of the nature of
the professions, for one's professional way of thinking not to dominate one's entire adult life. Richard
Wasserstrom, 'Lawyers as Professionals: Some Moral Issues’ at 14
4. Reduces professional competence?
● When more than technical advice is required
● The connection between law and morality
○ Expressed in jurisprudential debate as positivism and natural law.
● Practical judgement
○ The wise practical person needs to know what the rules are and why the rules were made
● Effective advocacy
○ You have to call on issues of morality to be an effective advocate
4
Table of Contents
Standard Conception of the Lawyers Roles and Theories of Ethics 1
Standard Conception of a Lawyer 2
Collateral Lawful Advantage 5
Theories of Ethics 5
The Regulation of Legal Practice in New Zealand 7
Client Care and Competence 9
Client Service 9
Competence 9
Continuing Professional Development (CPD) 11
Admission to the Bar / Complaints and Discipline 11
Admission 11
Conduct at University 14
Complaints and Discipline 14
Standard Committee 15
Rule of Law and Administration of Justice (Chapter 2) 17
Confidentiality, Privilege and Disclosure 18
Disclosure 18
Confidential Information 19
Privilege 20
Conflicts of Interest 21
Independance 22
Four Types of Conflict 25
Fees, Professional Dealings, Professional Practice 28
Fees 28
Professional Dealings 29
Professional Practice 31
Advocacy Ethics, Barristers, In-House Counsel 31
Wider Responsibility of Lawyers in the Community 36
1
,Standard Conception of the Lawyers Roles and Theories of Ethics
Standard Conception of a Lawyer
Rationale: There's something about the lawyers role, which makes it true that lawyers can do things which would be
immoral if they weren't acting as lawyers.
Case Examples
Zabella v Pakel 242 Facts: P owes Z $5000, wrote a simple draft contract but P declared bankrupt before
F2d 452 repayment. Z sued for a promise to repay debt but bankruptcy is a defence. Later P became
rich and could pay.
Held: The court felt obliged to allow the defence, though they thought Pakel being "in a
position of some affluence ... should feel obliged to pay an honest debt to his old friend,
employee, and countryman".
● But legally not required.
Mark Dollimore: Facts: D was lawyer and client charged with drink driving. D knows the client was appearing
Debbie Ashton under a false name from the witness protection programme and has no record - on face.
Under 10.7 Rules of Professional Conduct, defence counsel must not disclose a client's
previous conviction without clients authority. 1 month later the drove fatally into Debbie
Ashton.
Held: Defence lawyers were allowed to deceive court from omission. Lawyer can rely on
rules and can act with omission to deceive.
I. Principle of Partisanship/Duty of Zeal
Rationale: Lawyers duty is to their clients' interest and not help the otherside.
Mere-Zeal The merely-zealous lawyer … is to zealously pursue the client's legal rights. He is to be partisan in
the sense that he must bring all of his professional skills to bear upon the task of securing his
client's rights. But he is under no obligation to pursue interests that go beyond the law.
Hyper Zeal The hyper-zealous lawyer is concerned not merely to secure her client's legal rights, but to pursue
any advantage obtainable for her client through the law.
II. Principle of Neutrality
Rationale: If lawyers were to substitute their own private views of what ought to be legally permissible and impermissible
for those of the legislature, this would constitute a surreptitious and dangerous shift from a democracy to an oligarchy of
lawyers.
The Cab Requires a lawyer to take on any case within their area of competence, as though they were the next
Rank Rule cab or taxi at the rank.
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
Chapter 4 Availability of lawyers to public and retainers
A lawyer as a professional person must be available to the public and must not, without good
cause, refuse to accept instructions from any client or prospective client for services within the
reserved areas of work that are within the lawyer’s fields of practice.
2
, Refusing Lawyers are not Judges. “If he refuses to defend, from what he may think or the charge of the
Instructions defence, he assumes the character of the Judge.” (Thomas Erskine, R v Paine)
Good 4.1. Good cause to refuse to accept instructions includes a lack of available time, the
Cause instructions falling outside the lawyer’s normal field of practice, instructions that could
require the lawyer to breach any professional obligation, and the unwillingness or
inability of the prospective client to pay the normal fee of the lawyer concerned for the
relevant work.
Not Good 4.1.1 The following are not good cause to refuse to accept instructions:
Cause a) any grounds of discrimination prohibited by law including those set out in
section 21 of the Human Rights Act 1993:
b) any personal attributes of the prospective client:
c) the merits of the matter upon which the lawyer is consulted.
4.1.2 A lawyer who has a retainer under which he or she is to remain available to
receive instructions from the client concerned is entitled to decline instructions from
others that would be inconsistent with the lawyer’s obligations under the retainer.
III. Principle of Non-Accountability
Rationale: If counsel is bound to act for such a person, no reasonable man could think the less of any counsel because
of his association with such a client, but if counsel could pick and choose, his reputation might suffer if he chose to act
for such a client, and the client might have great difficulty in obtaining proper legal assistance. Rondel v Worsley [1969] 1
AC 191, 227 (HL).
IV. Standard Conception of a Lawyer assumes Role Differentiation
Role Differentiation
Ethical obligation … attached primarily to social roles. There are numerous roles within communities, and individuals
inevitably occupy more than one… as I move from role to role, the obligations and permissions to which I am subject
alter, and those which apply to me in one role may conflict with and take priority over those of others.
The conduct of Pakels lawyer seems to violate a plausible maxim of ordinary or general morality, but, the claim foes,
his conduct is not properly judged from that perspective alone. The fact that he was acting within his professional role
provides him with a defence against those who question the ethical propriety of his conduct.
Miscellaneous Cases
Lake Pleasant Facts: The lawyers also said they had kept their discovery from the father of one of one of the
bodies case women, who had visited them in the hope that they could shed some light on the disappearance
of his 20 year-old daughter.
Held: "The information was so privileged – I was bound by my lawyer's oath to keep it confidential
after I found the bodies," said Francis Belge, one of the two lawyers representing Robert Garrow.
Mr. Garrow, a 38 year- old mechanic for a Syracuse bakery, is accused of fatally stabbing Philip
Philip Domblewski, and 18 year-old Schenectady student who was camping in the Adirondacks
last July.
The Triangle Facts: 146 sweatshop workers died from fire. Legislation banned owners from locking doors but
Shirtwaist Fire did anyways. The owner's defence lawyer asked the girl for testimony which seemed rehearsed
Case and was like “did you miss a word here” etc and destroyed her credibility with the jury during
cross examination. Owner acquitted. Not right but the lawyer was doing his job.
3
, Criticism of
Standard Held: Encourages lawyer to deny responsibility and moral agency. Promotes moral and sensitivity
Conception within and outside the role. Reduce professional competence - client could ask for lawyers moral
opinion. Leads to a disability crisis of morale in the profession.
Spaulding v Facts: S was a passenger with Z driving. There was a crash. 3 medical experts did not notive S
Zimmerman 116 had aneurysm which probable caused the accident.
NW 2d 704
(Minn 1962) The defense lawyers, knowing that Spaulding and his lawyers were unaware of the aneurysm, did
not disclose this this injury or make representations concerning the scope of their client’s
injuries.Two years later, Spaudling’s aneurysm was detected at a medical examination given
when he enlisted in the military reserves. He was rushed into vascular surgery. At no point in the
intervening two years had anyone from the from the defense team –the client, the lawyer, or Dr
Hannah – attempted to warn Spaulding of the threat to his life.
V. Critiques of Standard Conception
1. Alienates lawyers from ordinary morality
● Effective adversarial advocacy ... demands measures that are unacceptable from a moral point of view.... A
firm and settled disposition to truthfulness, fairness, goodwill, and the like would thwart the lawyer’s capacity
to do his tasks well. To excel as a lawyer, it would be beneficial to possess combatative character traits such
as cunning.
● Andreas Esthete ‘Does a Lawyers Conscience Matter?
● e.g., Triangle Shirtwaist Fire Case
○ In cross examination, he asked the witness what she saw. The lawyer was trying to destroy the
witness's credibility by repeatedly asking her to say what she saw and take advantage of him messing
up.
○ The sweatshop was acquitted. The lawyer didn’t actually do anything wrong though
2. Encourages lawyers to deny responsibility and hence moral agency
● [Role] identification is a strategy for evading one's freedom and, consequently, one's responsibility for who
one is and what one does. By taking shelter in the role, the individual places the responsibility for all his acts
at the door of the institutional author of the role.
● Gerald Postema ‘Moral responsibility and professional ethics’ at 74
3. Promotes moral insensitivity both within and outside the role
● Concern for communities
● Concern for lawyers
● To become and be a professional, such as a lawyer, is to incorporate within oneself ways of behaving and
ways of thinking that shape the whole person. It is especially hard, if not impossible, because of the nature of
the professions, for one's professional way of thinking not to dominate one's entire adult life. Richard
Wasserstrom, 'Lawyers as Professionals: Some Moral Issues’ at 14
4. Reduces professional competence?
● When more than technical advice is required
● The connection between law and morality
○ Expressed in jurisprudential debate as positivism and natural law.
● Practical judgement
○ The wise practical person needs to know what the rules are and why the rules were made
● Effective advocacy
○ You have to call on issues of morality to be an effective advocate
4
