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ROBUST COMMUNICATION BETWEEN LAWYERS: WHERE IS THE LINE AND HOW DO YOU KNOW WHEN A PRACTITIONER HAS CROSSED IT WHAT S

OLSC COMPLAINT STATISTICS In 2009/2010, the OLSC received 407 written complaints and 1,428 calls to our inquiry line regarding communication

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ROBUST COMMUNICATION BETWEEN LAWYERS: WHERE IS THE LINE AND HOW DO YOU KNOW WHEN A PRACTITIONER HAS CROSSED IT WHAT S

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    1. ‘ROBUST COMMUNICATION BETWEEN LAWYERS: WHERE IS ‘THE LINE’ AND HOW DO YOU KNOW WHEN A PRACTITIONER HAS CROSSED IT? WHAT STEPS CAN BE TAKEN WHEN IT OCCURS?’ NSW Crown Solicitor’s Office 23 February 2011

    2. OLSC COMPLAINT STATISTICS In 2009/2010, the OLSC received 407 written complaints and 1,428 calls to our inquiry line regarding communication   Allegations raised include:   rudeness and discourtesy failure to return telephone calls failure to advise on issues failure to respond to letters failure to explain issues overstating a client’s case with intimidation and threats   Steady increase in the number of written complaints in relation to communication since 2004

    3. ETHICAL DUTIES OF LEGAL PRACTITIONERS Duty to the Court – primary ethical duty Duty to the Client – secondary ethical duty Duty to the Client – fiduciary relationship which creates fiduciary duties Fiduciary duties – avoid conflicts of interests, not profit, undivided loyalty, confidentiality

    4. THE OBLIGATION OF COURTESY IN COMMUNCATION Rule 25 of the New South Wales Revised Professional Conduct and Practice Rules (Practice Rules) 1995: “A practitioner, in all of the practitioner's dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct.” Statutory obligation under clause 175 of the Legal Profession Regulation 2005 to refrain from discriminatory or harassing behaviour. NSW Model Litigant Policy - government lawyers, whether plaintiffs or defendants, must act with complete propriety, fairly and in accordance with the highest professional standards in litigation and in all related matters.

    5. WHERE IS THE LINE? HOW DO YOU KNOW WHEN A PRACTITIONER HAS CROSSED IT? Belief that zealous advocacy is required in today’s commercial climate Moral activism – question whether actions are right or wrong “Role morality” vs. “ordinary morality” Partisanship Morally reflective decision-making

    6. WHAT STEPS CAN BE TAKEN WHEN A PRACTITIONER HAS CROSSED “THE LINE” Effective and honest communication Distinction between a profession and a business Ethical and statutory obligation to ensure that we do not engage in conduct that diminishes public confidence in the administration of justice We are not only legal practitioners but are also ordinary citizens Misconduct versus moral activism

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