Professional Ethics and Conduct
Professional Ethics and Conduct tests whether you can identify the governing duty in a practical dilemma and act before the problem hardens. The exam rewards a clear sequence: duty, risk, option, action.
Core rules
- Core duties include honesty and integrity, independence, acting in the client's best interests, confidentiality, and not misleading the court.
- Confidentiality survives the retainer. Legal advice privilege protects confidential communications for legal advice; litigation privilege protects communications for contemplated or ongoing litigation. Neither is a device to conceal future crime.
- Conflicts: check for a personal or professional conflict before accepting instructions. If a conflict arises, do not act; return instructions if necessary.
- Undertakings are personal and binding. Do not give one unless you can perform it.
- Client money must be handled through the proper account and records. Competence includes knowing when to decline or transfer instructions.
- Withdrawal: apply to withdraw if continuing would require misleading the court; do not reveal confidential information unless the client consents or the law permits.
Worked example
A client tells counsel that he intends to file a witness statement saying he was elsewhere on the night of the offence, although he has admitted being present. Counsel must not draft or support a false statement. The first step is to advise the client of the duty not to mislead the court and the consequences. If the client persists, counsel should decline to act further and apply to withdraw. Counsel must not disclose the admission to the court merely because instructions are returned; confidentiality continues, subject to the court being told only what is necessary to explain the withdrawal.
Traps
Treating confidentiality as covering a continuing fraud; ignoring a conflict because the client consents; giving an undertaking dependent on someone else; revealing privileged information in a withdrawal explanation.
Key points
- Identify the duty before choosing the action.
- Never draft or support a false statement.
- Check conflicts before accepting instructions.
- Undertakings are personal and enforceable.
- Withdrawal must protect confidentiality and the court.