Queensland Bar Exam (Ethics) common mistakes
Queensland Bar Exam (Ethics) · Understand the traps and how to avoid them.
When answering a question about a client who confesses guilt but wants to plead not guilty, the candidate advises that the barrister must withdraw or must disclose the confession to the court, instead of recognising that the retainer continues and the client may be defended on a plea of not guilty without the lawyer breaching duty.
Candidates conflate the duty of candour with a duty to volunteer the client's private admissions; they have memorised 'never mislead the court' but not the boundary that a plea of not guilty is not itself a misleading assertion by the lawyer.
What to do instead
Learn the distinction between (a) assertions the lawyer personally makes or adopts, which must be honest, and (b) the client's plea, which the lawyer may put without personally asserting innocence. Practise with hypotheticals where the client admits guilt: identify what the lawyer may say (instructions to test the prosecution case) and what the lawyer must not say (a personal assertion of innocence or a submission that the client is innocent).
The candidate treats a solicitor's undertaking as merely a promise of best endeavours, or advises that an undertaking can be qualified after the fact when circumstances change.
Undertakings are taught alongside general contract concepts, so candidates import ideas of frustration, reasonable endeavours and variation. The personal, absolute and unconditional nature of a solicitor's undertaking, and its enforceability through the regulator, is under-rehearsed.
What to do instead
Commit to memory that an undertaking is personally binding, may be enforced irrespective of the client's instructions, and should never be given unless performance is within the solicitor's control. In answers, state that if performance becomes impossible the solicitor must notify the recipient promptly and seek release, not self-qualify.
On a conflict question, the candidate simply states 'there is a conflict, so decline the retainer' without identifying whose interests conflict, whether it is a concurrent or successive conflict, and whether informed consent could cure it.
Candidates apply a single blanket rule and skip the analytical steps; they also confuse a conflict of interest with a conflict of duty, and personal-interest conflicts with client-client conflicts.
What to do instead
Use a fixed checklist in every conflict answer: (1) identify the parties and interests; (2) classify concurrent vs successive vs personal-interest; (3) assess whether the conflict is curable by informed consent or is non-consentable; (4) state the practical consequence (decline, cease acting for one party, or continue with safeguards such as information barriers). Name the category explicitly in the answer.
The candidate advises that confidential client information may be disclosed to a third party whenever it would assist the client's case, or conversely refuses disclosure even where the client has authorised it or where disclosure is compelled by law.
Confidentiality, privilege and authorised disclosure are studied as one topic, and candidates collapse them into a single rule. They forget that confidentiality is the client's to waive, and that legal professional privilege belongs to the client and can be lost by voluntary disclosure.
What to do instead
Separate the three concepts in notes: confidentiality (duty of non-disclosure, waivable by the client), privilege (evidentiary immunity from compulsory production, owned by the client), and exceptions (authorisation, statutory compulsion, prevention of serious harm, defence of a claim). In each answer, identify which concept is engaged and whose consent or authority is required.
When a matter is beyond the practitioner's competence, the candidate writes that the practitioner must refuse the retainer outright, rather than considering whether the practitioner can become competent through study, supervision or association with a more experienced practitioner.
Competence is reduced to a binary pass/fail test, and candidates overlook the regulatory expectation that a practitioner may act if they can reach and maintain the required standard, including by briefing counsel or seeking supervision.
What to do instead
In competence questions, apply a sequence: identify the required skill, assess whether the practitioner has it, and if not, consider (a) obtaining instructions from a more experienced colleague, (b) briefing counsel, (c) undertaking structured study with supervision, or (d) declining. State that the obligation is to be competent at the time of acting, not to know everything.
The candidate answers a communication-with-another-party question by saying the lawyer may deal directly with a represented opposing party if it is quicker, or may contact the opposing party's witness without restriction.
The rule against communicating with a represented person is often remembered only in litigation contexts and is treated as a courtesy rather than a professional obligation; candidates also confuse witnesses (who may generally be approached) with represented parties (who may not).
What to do instead
Memorise the rule as absolute: where a party is represented, the lawyer must not communicate about the matter with that party except through or with the consent of their lawyer. Distinguish witnesses, who may be interviewed subject to rules against coaching or harassment. In answers, identify the status of the person contacted before applying the rule.
On a trust-money question, the candidate treats money received in advance for fees as the firm's money immediately, or states that trust money may be used to pay the firm's disbursements before the work is done.
Candidates conflate money received generally with money received on trust, and do not distinguish fees paid in advance (which are trust money until earned or billed) from money received for disbursements already paid.
What to do instead
Apply the definitions: trust money is money received in the course of practice on behalf of another, held in trust, and must be deposited in a general trust account and dealt with only as the client directs or as the law permits. Money for fees in advance remains trust money until the fee is earned and an account rendered, unless a compliant written agreement provides otherwise. State the reconciliation and audit obligations in each answer.
The candidate describes the regulator's disciplinary process as criminal in nature, or advises that a practitioner may refuse to cooperate with an investigation because of the privilege against self-incrimination.
Candidates import criminal-law concepts into the regulatory sphere and do not appreciate that the duty to cooperate with the regulator is a separate professional obligation, and that disciplinary proceedings are protective rather than punitive.
What to do instead
Learn the framework: the regulator investigates, may require production of documents and explanations, and the practitioner's duty to cooperate is independent of the client's matter. The privilege against self-incrimination does not displace the obligation to respond to a lawful requirement, though the practitioner may seek advice. Frame disciplinary outcomes as protective (protection of the public and the profession) rather than as punishment.
The candidate writes that a barrister must accept any brief that is offered, or that a solicitor must act for any client who can pay, ignoring the grounds on which a retainer may properly be declined and the duty not to discriminate unlawfully.
The 'cab-rank rule' is memorised as an absolute obligation and the exceptions are forgotten; equally, solicitors' freedom to decline is overstated without reference to unlawful discrimination.
What to do instead
For barristers, state the rule and the recognised exceptions (conflict, lack of competence, fee disputes, personal conscientious objection in limited circumstances, and where the brief is not one the barrister practises in). For solicitors, note that a retainer may be declined but not on prohibited discriminatory grounds. Always identify the applicable exception rather than asserting an absolute duty.
When asked about supervision and practice management, the candidate focuses only on the principal's personal conduct and ignores the principal's responsibility for systems, delegation to unqualified staff, and the obligation to ensure supervisees are competent and supervised.
Practice management is treated as an administrative topic rather than an ethical one, so candidates do not connect supervision failures to professional misconduct and do not consider the principal's vicarious regulatory responsibility.
What to do instead
Build answers around the principal's affirmative duties: adequate supervision of staff and juniors, clear allocation of work commensurate with competence, file review and risk systems, and escalation of problems. Link failures to the regulatory consequences (unsatisfactory professional conduct or professional misconduct) and to client harm. Practise short scenarios where a junior or clerk acts beyond competence and identify the principal's obligations.