Ethics in the Time of COVID (2021)
Learning Outcomes:
Hypothetical 1
Joe Bloggs has been a long time client of the firm and is a director of a successful company that the firm advises. You receive a call from Joe’s son Ralph (a major beneficiary under Joe’s will along with Joe’s long estranged wife Anita) that Joe has suffered a stroke, and Ralph has concerns about Joe’s mental capacity. Two weeks later, Joe arranges an appointment with you via Zoom. He asks you to transfer all the shares in his company and his investment property to his new girlfriend Bianca.
What do you do?
Hypothetical 2
You have agreed to draft a will and a complicated estate plan for a client. You quote the client a flat fee of $4,500 rather than an hourly rate estimating that it will take you about 10 hours to complete the matter. The client pays the fixed fee before you commence the work. You find out that another lawyer in your form has drafted a similar will and a similar estate plan recently. He gives you a copy of the plan and you now estimate the matter will take no more than 2 hours max.
Would you refund a portion of the client’s money? Should you?
Hypothetical 3
You have just been handed a brief by Legal Aid prior to entering court to enter a plea of guilty for a juvenile charged with armed robbery.
The brief states that your client was in company with two other older persons in a car that was driven to a 7-11 store and that a robbery occurred where a gun was produced and cash and foodstuffs were taken.
In your discussions with the accused, while exploring the accused’s antecedents and lifestyle, the accused tells you he is a heavy user of drugs and alcohol and then states as an aside that on the night in question he was passed out in the vehicle after having consumed copious amounts of alcohol throughout the day.
You ask the accused if he was passed out at the time how did he know about the offence and why he was pleading guilty.
The accused says that all his mates have form for armed robbery and that he wants to plead guilty.
What would you do?
Hypothetical 4
A prospective client fills out an On-Line Consultation form which she sees on your website. The prospective client writes that she wants to sue one of your clients. Upon reviewing the consultation form, you immediately email the prospective client and tell her that you cannot represent her.
Can you tell the prospective client why?
Can you tell your client that you received this email?
Hypothetical 5
In a civil matter involving a contract dispute, the plaintiffs sought damages for the loss which they alleged they had suffered.
During discovery, they served a Lists of Documents on the other side. The upshot was a claim by the plaintiff that a number of documents which became the subject of client legal privilege, had inadvertently been disclosed contrary to its clients’ instructions. The other side declined to return the documents because of their view that any privilege attaching to the documents had been waived. The plaintiff brought an action seeking the documents return.
Should they be successful?
Hypothetical 6
Gwen, who is aged 85 and has an existing medical condition, has been advised by her doctors to stay at home and avoid visitors to reduce her risk of contracting COVID-19.
Gwen contacts for some insurance product, which after discussed need her signature. However, Gwen doesn’t have access to technology to allow her to scan or photograph her proof of age card and provide it to you.
Can you (best answer):
- Send a clerk or paralegal around to her house to obtain her signature.
- Have her give you details such as her address, maiden name (if there is one), favourite pets name, name of children and their birth dates.
- Ask Gwen if she knows anyone who could provide reliable and independent information to confirm her identity (a member of her church (priest etc), local counsellor, business person etc. You then call the person to ask them a number of questions concerning Gwen’s identity, and have them confirm to you in writing.
(adapted from AUSTRAC)
About your Speaker: Steve Mark, AM – Director, Creative Consequences
Steve Mark is a lawyer by profession, having initially studied in America, the country of his birth, and subsequently in Australia. He practised law with a private firm for five years, specialising in criminal law before travelling to England where for three years he practised in criminal, immigration and human rights law.
He was President of the New South Wales Anti-Discrimination Board from 1988 to 1994.
Steve is Chairman of the Australian Section of the International Commission of Jurists. The International Commission of Jurists, established in 1952 and based in Geneva, has consultative status with the United Nations.
Steve has lectured and consulted widely throughout Australia on human rights issues and sound management practices in both the public and private sectors including a three-year period as a lecturer in the Law Faculty at Macquarie University. Steve was awarded an Honorary Doctorate of Laws at Macquarie University in October 2000.
He was appointed as Legal Services Commissioner when the Office was established in July 1994 – 2013. The Office of the Legal Services Commissioner receives complaints against solicitors and barristers in New South Wales, and works to improve ethical behaviour of lawyers.
Steve was appointed as a member of the Council of International House, The University of Sydney in January 2010.
In January 2010, Steve Mark was appointed Registrar, Australasian Register of Security Professionals which has been established to set competencies and criteria for the registration of security professionals in Australia and New Zealand.
In 2011, Steve Mark was appointed Technical Committee Member to the International Standards for Security Agencies Technical Committee.
In 2012, Steve Mark was appointed as a member of the University of New England, School of Law Advisory Board.
Steve was appointed as Adjunct Research Fellow in the School of Law, (Australian Agriculture and Law Centre) University of New England on 23 July 2012.
