Legal Ethics

This subject has the following teaching availabilities in 2011:

LAWS50023 Legal Method and Reasoning; LAWS50024 Principles of Public Law; LAWS50025 Torts; LAWS50026 Obligations; LAWS50027 Dispute Resolution.

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student’s participation in the School’s programs.

The inherent academic requirements for the study in the Melbourne Law School are:

1. The ability to attend classes and actively engage in the analysis of complex materials and debate;
2. The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
3. The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
4. The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
5. The ability to work independently and as a part of a group;
6. The ability to present orally and in writing legal analysis to a professional standard.

Students must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will prevent them from participating in tasks involving these inherent academic requirements are encouraged to contact the Disability Liaison Unit: http://www.services.unimelb.edu.au/disability/.

Legal Ethics is a practical and critical introduction to ethical decision-making for lawyers. It introduces different moral approaches, focusing on the justifications for and criticisms of the traditional adversarial advocate approach and alternatives to it. The course also critically examines the way that the legal profession has developed and is organised and how it is currently regulated, including through admission and disciplinary processes. It also examines the law of lawyering that applies to lawyers including laws and professional conduct rules relating to conflicts of interest, confidentiality, privilege and the duties owed by the lawyer to the court, as well as circumstances in which lawyers have an immunity from civil liability (advocates immunity). Students will be expected to identify and resolve ethical issues that arise in legal practice by applying the law of lawyering as well as understand the rationales for, as well strengths and weaknesses of, the current law of lawyering. Students will also be expected to critically assess the way lawyers' ethics are regulated by these rules against different moral approaches to legal ethics.

Legal Ethics builds on the knowledge and skills developed in a number of earlier subjects in the curriculum, including primarily Dispute Resolution (regarding the role of lawyers in relation to dispute handling, and duties to the client and the court), Obligations (contractual, equitable and statutory obligations to the client), Torts (lawyers’ liability in negligence), and to a lesser degree, Principles of Public Law (regarding the regulation of lawyers), Constitutional Law (regarding arguments for and against self-regulation of lawyers, and regulation of lawyers at a State level) and Legal Theory (regarding perceptions of justice).

Legal Ethics will normally be taught simultaneously with Evidence& Proof. This allows for an integrated approach to issues such as Client Legal Privilege and the lawyer’s obligations in regard to the admissibility and validity of evidence to be tendered in court.

Legal Ethics takes special responsibility for the development of skills in considering a range of options in response to a legal problem and in identifying those which are sound and principled, as well as skills in judgment and diplomacy.

On completion of this subject, students should:

• Understand the main ethical theories relevant to legal ethics and be sensitive to considerations which are relevant to ethical thinking and decision-making;
• Be able to apply different ethical approaches to legal ethics to various fact scenarios;
• Understand and critically analyse the way that lawyers’ ethics and conduct are regulated in Australia (particularly Victoria), including through disciplinary processes;
• Know the professional conduct standards and general law that regulate lawyers, including those relating to conflicts of interest, confidentiality and duties owed to the client, and be able to apply them to fact scenarios;
• Be able to identify conduct and ethical issues that arise in legal practice in particular situations, be able to identify the different ways in which they could be resolved, and the arguments for and against those different resolutions;
• Be able to identify situations in which professional conduct standards and the general law conflict with one another or provide insufficient guidance about what the law expects or allows a lawyer to do;
• Be able to decide on, explain and justify the way in which they personally would resolve ethical issues in particular situations;
• Be able to identify and explain what practical actions they would need to take to carry out that resolution in a practical situation;
• Be respectful of other points of view as to how ethical issues should be resolved;
• Be able to critically evaluate aspects of the practice of law, including practice setting (eg large law firms, inhouse counsel), the lawyers’ monopoly over legal practice, advocates’ immunity, admission requirements and the ban on contingency fees may impact on a lawyer’s ethical approach and the legal profession’s contribution to justice;
• Understand and be able to apply the principles relating to the holding of money on trust;
• Have the capacity to engage in constructive professional and public discourse and to speak out against prejudice, injustice and the abuse of power.

• 1,000 word seminar paper (20%);
• 4,000 word assignment (80%).

• Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (2007);
• Printed materials will be available from the Melbourne Law School;
• Other materials that students may access online:
  
  - Legal Profession Act 2004 (Vic);
  - Legal Profession Regulations 2005 (Vic).
  

This subject is not available as a breadth subject.

On completion of the subject, students should have developed the following generic skills:

• Skills in identifying and resolving a legal problem;
• Skills in considering a range of options in response to a legal problem and in identifying those which are sound, principled, and best meet the needs of the client or other audience;
• Judgment and diplomacy skills;
• Interpersonal skills in relating to a client or other audience (actual or hypothetical) and in providing advice attuned to that person’s needs and interests;
• Skills in policy analysis;
• Skills in the avoidance, mediation and resolution of disputes;
• Skills in being open to new ideas and the perspectives of others;
• Skills in the critique of received wisdom;
• Skills in confronting unfamiliar problems;
• Skills in comprehending complex concepts and expressing them lucidly;
• Skills in speaking out against prejudice, injustice and abuse of power.