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Duty To Obey The Law Notes

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This is an extract of our Duty To Obey The Law document, which we sell as part of our Ethics Notes collection written by the top tier of Monash University students.

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Duty to obey the law??

Introduction: o Lawyers must not knowingly breach the law, or assist, induce or countenance a breach of the law by others. o The duty is part of the broader duty to serve the administration of justice (duty to the court) The administration of justice overlays and underlays all of the other duties. o This is a non-negotiable duty that is paramount and the most obvious duty owed by lawyers and informs all categories of duty Relevant legislation: o Australian Solicitors' Conduct Rules (ASCR)
? ASCR 3.1 Solicitors have a duty to the court and the administration of justice which is paramount and prevails to the extent of inconsistency with any other duty
? ASCR 4.1.5 A solicitor must comply with these rules and the law o Proposed Legal Profession Conduct Rules for Barristers
? LPCRB 6(a) Barristers owe their paramount duty to the administration of justice
? LRCRB 12(b) Barristers must not engage in conduct which is prejudicial to the administration of justice Content of the Duty o The duty to obey the law requires that lawyers:
? Act honestly, legally, professionally, so as not to bring the profession into disrepute or jeopardise the administration of justice
? Must not knowingly assist or induce clients or others to breach the law
? Must not place client's interests above the law
? Must not criticise law in a manner which undermined its authority or damages public confidence in the law Clients who act unlawfully o If a lawyer becomes aware tat a client is engaging in unlawful conduct, the appropriate response is to counsel the client against it and to eschew any involvement in that conduct, whether by assisting or being seen to be condoning that activity. o "It is inimical to the role and function of a legal practitioner that he or she advise or encourage a client to breach the law, regardless of whether the breach might be detected or prosecuted" LPCC v Segler; ACCC v Sampson 2011 FCA o If a lawyer has reason to believe that a client will disregard the lawyer's advice, they should against counsel the client and, if they persist, terminate instructions. o Where a lawyer is doubtful of their client's motives, he/she has a duty to make enquiries as to the client's motives o Outside of these circumstances, no implication of involvement by a lawyer in a client's misconduct ordinarily arise merely from an allegation that the lawyer performed legal work related to the client's activities (Re Moage Ltd) o ASCR 20.1/LRCRB 78
? 20.1 A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
? 20.1.1 has lied in a material particular to the court or has procured another person to lie to the court;

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