Week 4 Admission to Practice; the LawyerClient relationship

Readings Chapters 12 & 13

Special instructions: you must read Legal Profession
Uniform Law 2015 (NSW), Chapter 2, Part 2.2, Sections
15-29, Legal Profession Uniform Admission Rules 2015
(NSW) Rules 4, 5, 6, 10, 14, 16-19, 21, Schedule 1
(number 13 only), Schedule 2 (number 18 only), and
Montenegro v Law Society of NSW [2015] NSWSC 867 (2
July 2015)
Ray & Anne discuss Admission to the Profession
Ray is a first year law student. Ray is interested in becoming a legal
practitioner and looks forward to the several years of study ahead of him. Ray
understands that he has to earn a law degree but does not know what else he
needs to do to become a legal practitioner. Ray hears from a second-year
student that he needs to do more studies beyond his law degree and that he
has to pass a character test. Ray is not sure what more studies entails nor
does he understand what the character test means. Ray meets up with
another first year student, Anne, and they both begin talking about becoming
legal practitioners. When Ray mentions the extra studies and the character
test Anne goes quiet. Anne later mentions that she does not know much about
the extra studies but she's heard that you need to be a 'good person' to be a
legal practitioner and that she is worried about whether she would be
classified as 'good'. A little more chatting and Anne mentions that when she
was eighteen years old she had been working as a retail shop assistant. Anne
then discloses that she became good friends with an assistant manager who
'taught' her that if she processed some cash sales a certain way she would
be able to make a bit of extra money. Anne told Ray that she was, in
conjunction with the assistant manager, stealing money and when the
manager discovered this she was charged and convicted of larceny. Anne
was fined $1000 and placed on a good behaviour bond for two years. Anne is
now 22 years old.
Ray is intrigued about these ideas and starts to fossick through the library for
information. He thinks he found some information in the legislation. He also
found a case or two, but is not sure if they helped him as they were about
practitioners who were seeking re-admission. Ray wonders whether he will
need to disclose the fact that he is a regular user of marijuana. When Anne
begins reading a textbook about lawyers she discovers that admission is an
indicator of professionalism. She also thinks the cases say that if you do
something wrong the main thing is the length of time between the thing done
wrong and the point of seeking admission.

Advise Ray and Anne.

Antoinette retains EF (and Helen?)
Antoinette is the President of a non-profit community organisation (BCD)
assisting migrants and the disabled in NSW. She has the BCD's Board's
authority to issue instructions on behalf of BCD. The solicitors used by BCD
are EF Solicitors (EF). Antoinette normally deals personally with Gregor (G), a
senior partner. EF do most of the work at markedly reduced rates and
currently have a retainer and costs agreement covering the following work:
preparation of statutory reports on behalf of BCD, advising on workplace
issues as required, and drafting contracts for sub-contractor services.
Antoinette is very concerned about the federal government's budget changes
and the cutbacks announced for the non-profit sector. During January Zelco, a
board member of BCD meets Gregor to discuss the year ahead, as Antoinette
is on holidays. Zelco mentions, in passing, that he is concerned about the
federal government's budget and foreshadowed cutbacks. During the course
of the discussion Zelco said he would like to know what the likelihood of a
successful High Court challenge to the federal government's position would
be. Gregor, who is making notes, writes: "Get advice about High Court
challenge". A week later, when reviewing the notes Gregor sees the comment
about the High Court and briefs Helen SC (H) to answer questions about the
budget cutbacks, including the constitutionality of reducing funding for the
non-profit sector. Gregor also seeks an actuarial report about the
foreshadowed changes to BCD under the budget cutbacks. Helen's
memorandum of advice states, among other things, that a High Court
challenge could be successful and provides a draft of an application to the
High Court. Gregor reads the advice, briefs Helen to prepare the case and
lodges the application with the High Court Registry.
In February Antoinette emails Gregor for an update on advice she sought
about a separate Work Health & Safety issue. Gregor is caught up in other
litigation and replies: All going well. Will send you the advice asap. When
Gregor sends the advice in mid-February it is that provided by Helen and the
actuary. Antoinette immediately asks how Helen became involved and that
she, Antoinette, is not willing to pay Helen's fee, nor the actuarys (which
came to $5000). Helen has spent several weeks in research and preparation.
Concerned by what has transpired Antoinette tells Gregor in late February that
he is not to proceed with the case and that his firm must stop doing work for
BCD until Antoinette and Gregor meet the following week. In the meantime
Helen sends BCD her bill, amounting to $20,000. It is clear that Helen has
charged for her time correctly, but not at a reduced rate, as EF does.
Antoinette is furious and writes to Helen saying she will not pay.
Subsequently, Zelco, who has learnt of Helens advice, approaches Helen in a
personal capacity seeking to obtain advice of a similar nature. Helen refuses
to act for Zelco.
Consider this scenario and advise each of the parties.