Lls Take Home Exam
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Question one
Melanie
Representing both parties
Melanie had previously worked for Anthony, if her providing legal work in the past poses as a conflict of interest to Anthony then she should cease to act for both parties (SR10, Professional Conduct and Practice Rules . P s9.3). She also should have kept previous property dealings confidential and refrained from using it information acquired in prior dealings to act in the best interest of her current client (Mallesons Stephen Jaques v KPMG Peat Marwick). However, she may have been doing this out of moral obligation to encourage Anthony to disclose his property in the financial statements.
Also negligence can arise if a practitioner does not keep both parties informed of about the relevant activities of the other party (Blackwell v Barroile Pty Ltd). Also under family law rules a practitioner cannot represent two or more parties that have adverse interests in the proceedings. However, s4441A allows joint representation for uncontested decress of dissolution or nullity. In this case both parties gave implied consent but a conflict of interest did arise. A fiduciary relationship exists and the clients were entitled to assume that the practitioner would not have conflicting allegiances and approach the matter with their own interest at heart ( Dal Pont).
the issue of billing
Melanie should have entered into an agreement with Jane and Anthony and Mathew to procure payment of Mathews costs upon the completion of the relevant proceedings (SR s29.4.2). There is an obligation to for Melanie to disclose to Mathew the basis of the costs of legal services to be provided (LPA s176), as Melanie was retained by Mathew on behalf of the clients. This must be done in writing and expressed in clear and plain language and before Melanie was retained (s 178 and 179).
Mathew
failure to disclose costs
Mathew failed to disclose a written cost agreement in advance or ASAP after the law practice is retained (LPA part 3.2), nor advise them of their rights ( s 309), including a right to negotiate, which can only be waivered if they qualify as a sophisticated client (s312) which may result in gross overcharging. Yet this disclosure does not apply, if the legal work that can be performed immediately after instructions are given (s1.2.1.), but parties then still need to reach an agreement based on a declared rate or agreed basis and the intended billing arrangements and other arrangements prescribed under s175.
Transfer of the matter to Melanie
There is an issue of negligence as the clients choose the law firm due to its reputation as an accredited family law specialist, Mathew transferred the matter onto Melanie who does not share that expertise. He had a standard of care expected of a reasonably competent solicitor practicing in that particular field (Toronto Dominion Australia Ltd v Jaques), which was heightened because he was a specialty lawyer (Duchess of Argyll v Beuselinck).
acting against former client Jane
concurrent representation arises as he acts for Anthony against former client Melanie, a conflict of interest arises he should inform both and cease to act if he cannot act for both ( Professional Conduct and Practice Rules s9.2 and 9.3). thus he must not accept retainer (Solicitors Rules s3a), especially if he has acquired information confidential to that Jane and material to the proceedings and there is a possibility the information would be used to Janes detriment (s3b). liability may be minimized as pre agreed conditions of settlement were already reached and there is little evidence of confidential information.
withheld information at trial
Mathew instigated and was aware of Anthony withholding information of his other assets in his financial statements. Mathew therefore is required by law under duty of candour to either induce the client make the relevant information available or correct the false evidence with the clients permission. If this fails Mathew must terminate the retainer and withdraw from the proceedings after giving reasonable notice and without disclosing reasons to the court (Solicitors Rules s17). Also he under BR, he should have refused to take part further (32(a)) and promptly inform the court (32(b) and (c)).
Paul Berry (Senior Council)
reached a settlement without clients consent
Paul acted on behalf of Anthony in offering a settlement to Kevin without Anthonys consent or knowledge. This contravenes SR A18, in which a practitioner must not act as a mere mouthpiece of the client and must consider the clients desires and exercise forensic judgments. He also has no authority to settle on behalf of his client unless authority was given (LPA s313)
Misleading the court
If Paul was aware of Anthonys nondisclosure he has the duty to refuse to take part further in the case unless Anthony authorizes the barrister to inform the court (R32), promptly inform the court of the lie (R32 (b)).
Kevin
was Janes Advocate at the hearing ( permissible under s38L)
Kevin not seek to advance and protect Janes interests to the best of his skill and diligence, rather sought to benefit financially and his actions were driven to secure payment, this is a breach of his duty to a client (SR s23 A16)
conditional costs agreement
As Kevin and Jane only verbally entered an agreement, it is not applicable in law, the agreement for his fees to be contingent on the successful outcome and a third of any money recovered is void because it is not in writing or evidenced in writing (LPA s184). Also conditional costs agreements are prohibited for proceedings under the Family Law Act 1975 (R323.2), and when the amount payable to the law practice is calculated by reference to the amount or any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates (BR325.1). Kevin demanded a third of the settlement and this is strictly prohibited.
did not obey Janes instructions
Kevin arranged a conference with Mathew and Paul and agreed to settle for $150, 000 when Jane explicitly told him to not settle under any circumstances. A legal practitioner has a duty to obey