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Doing the right thing

Doing the right thing

By Steven Sapountsis

Academic Misconduct Ethics 


The law is an honourable profession, yet sometimes lawyers do the wrong thing – though they may not realise it at the time. Most of us would be prepared to accept that the common law test for professional misconduct is that propounded in Allison v General Council of Medical Education and Registration [1894] 1 QB 750 as “conduct which would reasonably be regarded as disgraceful and dishonorable by professional brethren of good repute and competency”. Indeed, the case is referenced time and time again in disciplinary hearings. Another case that highlights the importance of lawyers doing the right thing went all the way to the High Court of Australia. ERA v Armstrong [2013] HCA 46 concerned whether privileged documents inadvertently disclosed by a firm of solicitors should be returned by the receiving firm. The judgment contained the following comments in relation to solicitors’ responsibilities at [64]-[67]: “The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA [Civil Procedure Act 2005 (NSW)] imposes a positive duty upon a party and its legal representatives to facilitate the CPA's purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty. “The position of solicitors who are in receipt of privileged documents has another dimension. Rule 31 of the Australian Solicitors' Conduct Rules. . . deals with the duty of a solicitor to return material, which is known or reasonably suspected to be confidential, where a solicitor is aware that its disclosure was inadvertent. It involves notifying the other solicitor of the disclosures and returning that material. “Such a rule should not be necessary. In the not too distant past it was understood that acting in this way obviates unnecessary and costly interlocutory applications. It permits a prompt return to the status quo and thereby avoids complications which may arise in the making of orders for the rectification of the mistake and the return of documents.

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