CPD Seminar: Ethics, Professional Skills and Practice Management for Lawyers

CPD seminar for union lawyers
Maurice Blackburn Lawyers
October 2016

• Welcome & introduction
• Melinda Zerner: Alternative dispute resolution
• Rohan Tate: Ethical limits of advocacy at mediation and a
lawyer’s duties to the court
• Closing & questions
2CPD Seminar:19 October2016
Today’s agenda

Resolving conflict
through alternative
dispute resolution.
3Melinda Zerner, Barrister-at-law

Overview
• Conflict
• Types of Dispute Resolution
• Negotiation
• Mediation

Types of conflict
• Interpersonal disputes
• Differing expectations
• Different values
• Reliance on assumptions
• Willingness to deal with conflict
• Bullying and harassment
• Invalid reasons for termination
• Escalation - Litigation

Managing Conflict
• Doing nothing
• Different methods of dispute resolution for
different scenarios
• Conflict styles
• Process should meet the needs and interests
of the disputants and the dispute

Skills to Deal with Conflict
• Listening
• Framing
• Appropriate Assertiveness
• Reality Testing
• Identifying the True Motivating Factors
• Problem Solving
• Confronting

Factors to consider
• The disputants
• The dispute
• Relationships
• Motivation
• Goals/Outcomes

Types of dispute resolution
• Negotiation
• Mediation
• Facilitation
• Conciliation
• Arbitration
• Litigation

Considerations in Negotiation
• Interests
• Options vs Alternatives
• Relationships
• Communication
• Legitimacy
• Commitment

STAGES OF NEGOTIATION
• Preparation
• Discussion
• Clarification of goals
• Negotiation (Win/Lose; Win/Win)
• Agreement
• Implementation of a course of action

Mediation
• Definition:
•“A structured negotiation process in which the
mediator, as a neutral and independent party, assists
the parties to a dispute to achieve their own resolution
of the dispute”
S25 Civil Procedure Act 2005 (NSW)

Secondary features
• Bringing clarity to the dispute
• Reducing communication barriers
• Identifying and acknowledging needs and interests
• Promoting constructive and productive negotiations
• Reducing anxiety and other negative features
• Encouraging self responsibility
• Reducing tension and distrust
• Bringing an outsider’s view

Types of Mediations
• Settlement disputes
• Transactional mediation
• Policy making mediation
• Conflict management mediation
• Preventative mediation

Preparation for Mediation
• The ground rules
• Identifying the real issues
• Choice of mediator – internal or external
• Preliminary conference
• Logistics
• Environmental considerations
• Agreement to mediate

Other Considerations
• Communication Skills
• Confidentiality
• Privacy
• Without Prejudice
• Power Imbalances

The Mediator
• Assessment
• Pre-mediation interviews
• Agreement to mediate
• Monitoring of power imbalances
• Logistics
• Environmental considerations
• High level communication skills

Ethical limits of advocacy at
mediation and a lawyer’s duties to
the court.
Rohan Tate, Lawyer

Do ethics apply to advocacy at mediation?
Does Mediation and advocacy require bluffing, deception, bullying
and, sometimes, lying?
Discuss
20Presentationtitle- to editgoto Insert> Header & Footer >Footer
What are the ethical limits of
advocacy at mediation?

1. The Australian Solicitors’ Conduct Rules 2012 (ASCR)
2. The Legal Profession Act 2007 (Qld) (LPA)
3. The Australian Consumer Law (ACL)
What are the sources of ethics?

Rule 19 Frankness In Court
19.1 A solicitor must not deceive or knowingly or recklessly mislead
the court.
19.2 A solicitor must take all necessary steps to correct any
misleading statement made by the solicitor to a court as soon as
possible after the solicitor becomes aware that the statement was
misleading.
19.3 A solicitor will not have made a misleading statement to a court
simply by failing to correct an error in a statement made to the court
by the opponent or any other person.
Australian Solicitors’ Conduct Rules

Legal Services Commissioner v Mullins [2006] LPT 012
The Tribunal ordered that Mullins, the Barrister, be publicly reprimanded, pay a
penalty of $20,000, and, pay the applicant’s costs of the application.
Legal Services Commissioner v Garrett [2009] LPT 12.
The Tribunal ordered that Garret, the instructing Solicitor, be publicly reprimanded
, pay a penalty of $15,000 and pay the applicant’s costs of the application.
The duty to the court extended
to forums other than courts

Rule 3 Paramount duty to the court and the
administration of justice
3.1 A solicitor’s duty to the court and the administration of justice
is paramount and prevails to the extent of inconsistency with any
other duty.
Rule 3 reinforces rule 19

• R v Neal [1949] 2 All ER 438
• Facts: the defendant was charged with a number of criminal offences. The jury
were given permission to leave the by the bailiff to have “luncheon” – this was a
serious irregularity that the conviction was quashed.
• In criminal cases a lawyer must note an irregularity and not keep it as a ground
for appeal, but must take the point at the trial, even though this action may
seriously prejudice the client's case.
A lawyer may be required to act in a
manner contrary to the interest of
their client

In maintaining balance in the discharge of the lawyer’s various
duties it needs to be recognised that the judicial process operates
by well-established principles, and there is a well-established
function of the lawyer within that process.
Maintaining balance in the
discharge of the duty to the court

Rule 22. Communication with opponents
22.1 A solicitor must not knowingly make a false statement to an
opponent in relation to the case (including its compromise).
22.2 A solicitor must take all necessary steps to correct any false
statement made by the solicitor to an opponent as soon as
possible after the solicitor becomes aware that the statement was
false.
22.3 A solicitor will not have made a false statement to the
opponent simply by failing to correct an error on any matter
stated to the solicitor by the opponent.
Duty not to tell an untruth to
the opponent

Rule 34. Dealing with other persons
34.1 A solicitor must not in any action or communication
associated with representing a client:
34.1.1 make any statement which grossly exceeds the legitimate
assertion of the rights or entitlements of the solicitor’s client, and
which misleads or intimidates the other person; or
….
34.1.3 use tactics that go beyond legitimate advocacy and which
are primarily designed to embarrass or frustrate another person.
Duty owed to other persons

Given that the Rules define ‘court’ as including a mediation, to
whom is the paramount duty and the duty not to deceive or
mislead owed?
Who is owed the duty?

Rule 33. Communications with another solicitor's client
33.1 A solicitor must not deal directly with the client or clients of
another practitioner unless:
33.1.1 the other practitioner has previously consented;

Giannarelli v Wraith (1988) 165 CLR 543
• Responsibility of a Barrister to assist in the speedy and efficient adminstration
of justice and they are immune from liability and the immunity from suit is in
the interests of the adminsatation of justice
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
• The court declined to revisit Giannarelli. The common law provides absolute
protection from civil action in respect of what a lawyer says and does in
proceedings before the courts and in respect of work done out of court which
leads to a decision affecting the conduct of the case in court. The privilege
does not arise out of the status of a lawyer as an officer of the court; it arises
out of the person’s function as an advocate
Attwells v Jackson Lalic Lawyers Pty Limited 2016 HCA 16
• French CJ, Kiefle, Bell, Gageler and Keane in a joint judgement declined to
revisit advocate immunity and confirmed Giannerelli and D’Orta.
Advocate immunity

(1) Professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the
conduct involves a substantial or consistent failure to reach or keep a
reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in
connection with the practice of law or happening otherwise than in
connection with the practice of law that would, if established, justify a
finding that the practitioner is not a fit and proper person to engage in
legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to
engage in legal practice as mentioned in subsection (1), regard may be had to the
suitability matters that would be considered if the practitioner were an applicant
for admission to the legal profession under this Act or for the grant or renewal of a
local practising certificate.
The Legal Profession Act 2007

What is the Australian
Consumer Law (the ACL)?
Does it apply to lawyers?

The Legal Profession Act 2007 (LPA) is specialist consumer
protection legislation directed solely to the regulation of lawyers
and the provision of legal services and related matters. The ACL
complements and sits side by side with the LPA, both governing
the conduct of lawyers.
The ACL is ‘generic’ consumer
protection legislation.

Misleading and deceptive conduct
Section 18 of the ACL is headed "Misleading or deceptive conduct"
18 (1)
"A person must not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or deceive."
What provisions of the ACL are
relevant to lawyers in relation to
mediation?

The confidential and ‘without prejudice’ regime imposed by most
agreements to mediate cannot exclude the law. This is the case,
of course, because s. 96 of the ACL provides that it ‘has effect
despite any stipulation in any contract or agreement to the
contrary’.
There is no escaping the ACL

Section 4 of the ACL deals with representations about future
matters.
It is very broad in its application.
It is very relevant to conduct often observed during mediations,
such as, “This is my clients’ final offer. They will not make another
offer.”
Section 4 is very relevant to your
conduct during a mediation

Lam v Ausintel Investments Pty Ltd (1989) 97 FLR 458 at
475
The common law rule is that there is not duty to disclose material
facts not known to the other party. You must be honest in what
you say (tell the truth), but you do not have to be candid
(volunteer information or documents).
However, this rule does not apply if there is an obligation to give
full evidence.
Silence or failure to disclose can
constitute misleading and deceptive
conduct

Section 18 of the ACL prohibits conduct that may mislead or
deceive.
Silence, or non-disclosure of information, is conduct.
If the surrounding circumstances create a reasonable expectation
that is some relevant facts exists it will be disclosed, failure to
disclose that fact will amount to a misleading representation that
it does not exist.
The organisational arrangement for a mediation could easily
create a reasonable expectation.
Silence or non-disclosure can
breach s. 18 of the ACL

Silence can constitute professional
misconduct
Mullins and Garrett

Principles in relation to binding
agreements at conciliation
conferences
Masters v Cameron 91 CLR 1954
Cameron and Masters had an agreement to sell Cameron’s farm worth £1,750, in
the agreement there was a detailed description of the farm, however the
agreement was also described as pre-contract for the final contract of sale, which
was never executed.

Csontos v QT Hotels & Resorts Pty Ltd [2016] FWC 3632:
QT indicated that it considered it had reached agreement and Mr Csontos indicated that he
understood that he had reached a verbal agreement during the conference. Mr Csontos
entered into a binding settlement agreement orally on 14 January 2016, and accordingly the
cause of action for unfair dismissal relief no longer existed.
Curtis v Darwin City Council [2012] FWAFB 8021:
Fair Work Australia found that there was in place a binding agreement between Ms Curtis and
the Council, because no phrases such as “subject to contract” were used in the negotiations.
As such there was nothing to indicate that the parties did not intend to be immediately bound
by the terms of the agreement.
Australian Postal Corporation v Brent Gorman and Fair Work Australia 2011 FCA
975:
The Federal Court overturned the decision of Fair Work Australia (FWA) which, among other
things, allowed an employee to pursue an unfair dismissal application despite his
representative submitting that “an outcome had been reached” during the arbitration.
Principles in relation to binding
agreements at conciliation
conferences

Tomas v Symbion Health 2011 FWA 5458
Facts: the applicant disputed that she had instructed her
representative to accept the terms of settlement at conciliation
Then Commissioner Gooley held that the matter had been settled
at conciliation and dismissed the application pursuant to Section
587 of the FW Act as it had no reasonable prospects of success.
Case Example - Baxter
Lack of intention to be bound

Rohan Tate, Lawyer
Maurice Blackburn Lawyers
Ph: 07 3016 0300
E: rtate@mauriceblackburn.com.au
Contact me

This information is prepared for the
purposes of the seminar conducted on 19
October 2016 only. The content of this
paper / presentation is not legal advice. It
is information of a general nature.
Readers requiring legal assistance for their
specific circumstances should not rely on
the content of the foregoing but should
take appropriate legal advice.

Thank you.
1800 810 812
mauriceblackburn.com.au

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