NG Bar Final Professional Ethics common mistakes
NG Bar Final Professional Ethics · Understand the traps and how to avoid them.
Treating the duty of confidentiality as ending when the retainer terminates, and freely discussing a former client's affairs in social or professional settings.
Candidates confuse the end of the retainer with the end of the duty, and assume confidentiality attaches only to information that is itself privileged or was expressly marked confidential.
What to do instead
Memorise that confidentiality survives termination of the retainer indefinitely, and is broader than privilege: it covers all information about the client's affairs however acquired. Practice with short scenarios distinguishing privileged from merely confidential material.
Disclosing a client's intention to commit a future crime in the belief that the 'future crime' exception to confidentiality applies to any offence the client mentions.
The exception is often remembered as a broad 'crime' exception rather than as a narrow, jurisdiction-specific permission tied to serious offences and, in some rules, to the lawyer's own criminality or civil liability.
What to do instead
Learn the exact scope of the exception as it applies in your jurisdiction: which offences qualify, whether disclosure is permitted or mandatory, and whether it extends to preventing harm to third parties. Test yourself with borderline offences (minor property crime versus homicide) to fix the boundary.
Accepting a retainer from a new client whose interests conflict with those of an existing client on a related matter, reasoning that the two matters are 'separate'.
Candidates apply a narrow, transaction-by-transaction view of conflict rather than the 'same or substantially related matter' and 'materially adverse' tests, and underestimate how easily a duty of loyalty is breached even without using confidential information.
What to do instead
Apply a two-step check to every new retainer: is the new matter the same as or substantially related to an existing client's matter, and are the interests materially adverse? If both answers are yes, decline absent informed consent from both clients where the rules allow it.
Acting for both parties to a transaction or dispute as a 'neutral facilitator', believing that consent from both sides cures the conflict.
Candidates overestimate the power of consent and forget that some conflicts are non-consentable, particularly where the lawyer cannot represent both clients diligently or where one client's interests are likely to be prejudiced.
What to do instead
Distinguish consentable from non-consentable conflicts. Learn that consent must be informed, confirmed in writing, and given by each affected client, and that joint representation is impermissible where a genuine dispute exists or is likely to arise. Practise identifying when the lawyer must withdraw from representing both.
Failing to identify a personal conflict of interest, such as a financial interest in the client's business, a family relationship with the opposing party, or a prior role in the same matter.
Candidates focus on client-versus-client conflicts and overlook lawyer-versus-client conflicts, treating personal interests as irrelevant unless they amount to outright dishonesty.
What to do instead
Build a personal-conflict checklist: financial interests, personal relationships with parties and witnesses, prior involvement in the matter in another capacity, and gifts or benefits from the client. Run it before accepting any retainer and again when facts change.
Committing the client to a settlement or strategy without instructions, or conversely refusing to follow clear lawful instructions because the lawyer disagrees with them.
Candidates blur the line between the lawyer's authority over procedural and tactical matters and the client's authority over substantive decisions, and they confuse the duty of competence with a licence to override the client.
What to do instead
Learn the division of authority: the client decides objectives, settlement, plea, and whether to appeal; the lawyer decides tactics and procedure after consultation. In scenario questions, ask who bears the consequence of the decision and whether the client gave informed instructions.
Acting on a matter outside the lawyer's competence without telling the client, on the theory that a general licence covers everything and that learning on the job is acceptable.
Candidates equate being admitted with being competent in every field, and they miss that competence includes recognising the limits of one's knowledge and taking steps to acquire it.
What to do instead
Memorise the competence standard as knowledge, skill, thoroughness and preparation reasonably necessary. Learn the permissible routes: decline, refer, associate with a competent lawyer, or study and prepare adequately, and remember to inform the client of any referral or association.
Sharing a fee with a non-lawyer, or paying a referral fee to a client or intermediary, without checking whether the arrangement is one of the narrow permitted exceptions.
Candidates remember the general prohibition on fee-sharing but not the recognised exceptions, such as paying a deceased lawyer's estate, sharing fees with a lawyer in another firm under a written agreement with client consent, or paying a non-lawyer employee a salary not tied to specific fees.
What to do instead
List the permitted exceptions explicitly and test each arrangement against them: is the recipient a lawyer or law firm, is there a written agreement, is the client informed and consenting, and is the fee not a pure referral payment? Reject any arrangement that pays for the referral itself.
Depositing client funds into the firm's general operating account, or using one client's trust money to cover another client's shortfall, and only correcting the position later.
Candidates treat trust accounting as bookkeeping detail rather than as a core fiduciary duty, and they underestimate how quickly a temporary 'borrowing' becomes a serious disciplinary offence.
What to do instead
Learn the trust accounting fundamentals: client money in a designated trust account, no commingling with firm funds, no overdrafts, contemporaneous records, and reconciliation. Practise spotting the moment a transaction becomes a breach rather than waiting for the audit.
Communicating with a party the lawyer knows to be represented by counsel, or contacting the opposing party directly to 'speed things up', without going through their lawyer.
Candidates treat the no-contact rule as a courtesy rather than a prohibition, and they forget it applies to the represented party's employees and agents in some circumstances, and that consent of the party's lawyer is required.
What to do instead
Learn the rule as absolute: no communication about the subject of the representation with a person the lawyer knows to be represented, absent that lawyer's consent or legal authorisation. Check whether the person is represented before any contact, and route all communication through counsel.