Queensland Bar Exam (Ethics) flashcards
Queensland Bar Exam (Ethics) · Build recall with a focused review session.
32 cards. Read the term and the definition here. The deck at the top of this page is optional.
- Overriding duty to court
- A practitioner's paramount duty is to the court and the administration of justice, and it prevails over the duty to the client when the two conflict.
- Ex parte disclosure duty
- On an ex parte application, the practitioner must disclose all material facts, including those unfavourable to the application, because the other party is absent and cannot correct the record.
- Duty not to mislead
- A practitioner must not knowingly mislead the court and must correct any inadvertent misleading statement at the earliest opportunity, even if that harms the client's case.
- Client admits guilt
- Where a client admits guilt but insists on pleading not guilty, the practitioner may withdraw or continue in a limited role, but must not disclose the confidential admission to the court.
- Competence
- A practitioner must possess the knowledge, skill and diligence reasonably expected for the matter, and must decline or refer the retainer if those attributes are lacking.
- Confidentiality
- All information received in the course of the retainer must be kept confidential, whether or not it is privileged or in writing, and the obligation survives termination of the retainer.
- Legal professional privilege
- Privilege protects confidential communications made for the dominant purpose of obtaining or giving legal advice or for use in existing or anticipated litigation, and belongs to the client.
- Duty of loyalty
- A practitioner must act in the client's best interests, avoid conflicts of interest, and not profit from the retainer beyond remuneration that has been disclosed to the client.
- Current-client conflict
- A practitioner must not act for two clients whose interests are directly adverse in the same or a substantially related matter without informed consent from both clients.
- Former-client conflict
- A practitioner must not act against a former client in a matter where the practitioner holds relevant confidential information, unless the former client gives informed consent.
- Informed consent
- Consent given freely by a client with capacity after full disclosure of the conflict and its implications; consent by one client does not cure a conflict affecting another.
- Chinese walls
- Information barriers within a firm may mitigate a conflict but do not automatically cure it; the test is whether there is a real risk of misuse of confidential information.
- Communicating with represented party
- A practitioner must not communicate directly with a party known to be represented by another practitioner about the subject of the representation without that practitioner's consent.
- Unrepresented opposing party
- Communications with an unrepresented party must be courteous and fair, must not take unfair advantage, and must not give that party legal advice.
- Threats to obtain advantage
- A practitioner must not use threats of criminal proceedings or disciplinary complaints to obtain a civil advantage in a matter.
- Witness benefits
- A practitioner must not offer or give a benefit to a witness that is contingent on the content of the evidence the witness gives.
- Costs agreement
- A costs agreement must be in writing, disclose the basis of charging, and comply with the legal profession legislation; non-compliance can render the agreement unenforceable.
- Trust money
- Money held for or on behalf of a client in connection with legal services; it must be deposited into a general trust account and must not be mixed with the practitioner's own money.
- Misappropriation of trust money
- Using trust money for the practitioner's own purposes or borrowing from a trust account is a serious disciplinary and criminal offence, regardless of any intention to repay.
- Business transaction with client
- A practitioner must not enter a business transaction with a client unless it is fair, fully disclosed, and the client has obtained independent advice.
- Reporting serious misconduct
- A practitioner must report to the relevant professional body any serious misconduct of which they become aware, including conduct that may constitute a criminal offence.
- Disciplinary sanctions
- Sanctions range from cautions and fines to conditions on practice, suspension, and removal from the roll, with seriousness of conduct and prior history relevant.
- Cooperating with regulator
- A practitioner must cooperate fully with any investigation or disciplinary proceeding, including providing documents and information requested by the regulator.
- Professional indemnity insurance
- A practitioner must maintain professional indemnity insurance and comply with continuing professional development requirements as conditions of lawful practice.
- Principal's supervisory responsibility
- A principal is responsible for supervising employed practitioners to ensure work is performed competently and in accordance with ethical obligations, including reviewing work before delivery.
- Acting outside competence
- A practitioner must not accept instructions in a matter outside their competence without appropriate supervision or referral to a practitioner with the necessary expertise.
- Ethical decision-making framework
- A structured approach asks what the facts are, what duties are owed, to whom, and which duty prevails where duties conflict.
- Contemporaneous file records
- A practitioner should keep written records of significant decisions, advice given, and instructions received, to support later accountability and defend against complaints.
- Refusing to mislead court
- A client's instruction to mislead the court must be refused, because the duty to the court prevails over the duty to act on the client's instructions.
- Terminating a retainer
- A practitioner must not terminate a retainer without reasonable notice and without taking steps to protect the client's interests, such as allowing time to obtain new representation.
- Confidentiality exceptions
- Exceptions to confidentiality include client consent, statutory compulsion, prevention of a serious criminal offence, and defending a claim brought by the client against the practitioner.
- Using former client information
- A practitioner must not use a former client's confidential information to the advantage of a current client or of the practitioner, absent informed consent.