`The University of the South Pacific	Exam Semester 2 2004
Emalus Campus

SCHOOL OF LAW

COURSE NAME: Legal Ethics

COURSE NO: LA334

TIME ALLOWED: Three (3) hours

READING TIME: Ten (10) minutes

NUMBER OF PAGES: Two (2) excluding this page

NUMBER OF QUESTIONS ON PAPER: Six (6)

NUMBER OF QUESTIONS TO BE ANSWERED: Five (5) only

MARK ALLOCATED FOR EACH QUESTION: Equal

TOTAL MARKS: Fifty percent of result. Note that in order to pass this unit you need to score a minimum of 20 marks out of 50 for the examination.

MATERIALS PERMITTED IN EXAMINATION ROOM:

None

SPECIAL INSTRUCTIONS

1. Read the questions and the instructions carefully.

2. All answers should be clearly written and should refer to relevant cases and/or statutory provisions.

3. Some questions have a number of parts in which case all parts are to be attempted.

Question 1 (10 marks)

In the Matter of Mr Joshua (applicant)

And

Barristers and Solicitors - a Law Firm (first respondent) and

Miss Mary Matimue (second respondent)

White J.

“The application I have before me is an interlocutory application for an injunction to restrain the Solomon Islands branch of the law firm of Barristers and Solicitors from further acting as solicitors on the record for the second respondent Miss Mary Matimue. The law firm has offices in a number of South Pacific countries including the Fiji Islands and the Solomon Islands.

In January 1997 its Fiji office acted for Mr Joshua in a matter concerning the re-structuring of his business affairs. This included the giving of advice concerning the reporting of profits, preparation of financial and taxation returns and the incorporation of certain other business interests.

In December 2000 Mr Joshua married the second respondent Miss Mary Matimue who is from the Solomon Islands. They have one child. Miss Mary became an employee of the applicants firm but only as a part-time sales assistant. She did not participate in any of the companies business matters and was not part of the management group of the company. In January 2003 Mr Joshua and Mary Matimue separated. Miss Mary returned to the Solomon Islands where she instructed the first respondent’s Solomon Island’s office to act for her in respect of the matrimonial proceedings. Mr Joshua instructed the Fiji office of the same firm to act for him. During the course of these proceedings, which are on-going, there was a dispute between Mr Joshua and Miss Mary concerning the division of property and the payment of maintenance.

So much for the facts of this case. I now turn to the law. Conflicts of interest is an area of law that concerns the balancing of two public interests ….”

Complete the judgment of White J.

Question 2 (10 marks)

“At the end of the day, a decision by the Crown not to call a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.” [Lawyers’ Responsibility and Accountability, first edition at page 456}

Discuss

Question 3 (10 marks)

“[W]here a lawyer considers that the client has a reasonable cause of action (or defence) and does not bargain for an interest in the subject matter of the litigation, there is no impediment at general law for the lawyer to charge clients on a speculative basis. [Dal Pont; Lawyers’ Professional Responsibility at page 310]

Discuss

Question 4 (10 marks)

In the matter of Saeed Asif Mirza (1996) the applicant was struck off the roll of practitioners for administering an improper oath, namely allowing his client to swear answers to interrogatories on a dictionary, instead of a Bible as prescribed by law.

In Ziems v The Prothonotary of the Supreme Court of NSW (1957) the barrister (Ziems) was found guilty of manslaughter and sentenced to two years in prison. It was held that Ziems should be suspended from legal practice during the term of his imprisonment.

By reference to these two examples, discuss the different types of misconduct that can lead to disciplinary proceedings against a lawyer.

Question 5 (10 marks)

Peter was a client of the firm of Tree and Lung, Barristers and Solicitors. Peter had always been a difficult client – always wanting to sue someone. In July 2004 he instructed his solicitors to bring an action against a previous employer. This action concerned the termination of his employment in an earlier position. It had no prospects of success. Furthermore, it had occurred over ten years ago. The relevant Limitation Period for the bringing of such actions was six years; although the legislation provided for an extension of time if certain circumstances were met. The firm advised Peter that his action was statute barred. They also advised him of the circumstances (which did not apply to his case) that allowed for an extension of time. Peter insists on bringing the action and for applying for an extension of the limitation period. He says he has a right to “his day in court” and that he wants to “tell the court just what happened”. He admits that commencing the proceedings is inspired by ill-will towards the defendant ex-employer but wants to go ahead in any case.

(i) Should the firm act on these instructions? In your answer refer to any relevant cases.

(ii) Would it make any difference to your answer if the case was not a hopeless one (in terms of both seeking an extension of time and the cause of action itself) but was still inspired by ill-will towards the defendant?

Question 6 (10 marks)

“The general duty of disclosure is, however subject to qualifications brought about principally by the essential characteristics of the adversarial system.” [Per Justice Ipp in Lawyers’ Duties to the Court at page 68]

Discuss this quotation in reference to the adversary system, the duty of disclosure and the qualifications to that duty.

END OF PAPER