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5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

Published:
21 Nov 2023
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5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

The law is a complex field heavily reliant on knowledge, interpretation and advice. Lawyers bear significant responsibility for outcomes that impact individuals, businesses and the community. This makes for a profession that can have far reaching consequences and, as a result, lawyers are held to high standards.

Considering the mix of a lawyer’s professional accountability, long and demanding hours, along with the inherent commercial pressures of running a legal business and meeting clients’ needs, it is hardly surprising that practices can experience slips which can lead to ethical breaches. And as Athol Opas, barrister at Blackburn Chambers, College of Law consultant and former president of the ACT Law Society explains, lawyers’ ethical obligations including under conduct rules, as those apply to solicitors or barristers, are not as ‘intuitive’ as some might assume.

Athol Opas presents annual ethics updates to firms around Canberra to keep them abreast of recent cases of misconduct and/or common ethical breaches. This type of education assists firms and lawyers to uphold their professional obligations in what is becoming a more complex environment. From the explosive emergence of Generative AI and its unchartered impact on legal processes, to the increased incidence of cyber crime and mounting data management obligations, there are many new challenges facing lawyers today.

We spoke to Athol to find out about the most common ethical breaches which lawyers should be mindful of and to gain his top tips on complying within ethical obligations.

 

1. Brush up on your ethical and professional obligations 

It is healthy to think of refreshing your knowledge of a lawyers professional obligations as a standard part of your continuing professional development (CPD).

Athol says: “The framework which governs the conduct of lawyers is a combination of common law ethical obligations and statutory obligations under the Legal Profession Act and the Solicitors and Barristers Conduct Rules, plus other regulations, such as trust accounting regulations.”

Workplace pressures, including financial pressures, can impact the necessary attention being given to the education, skills and training around professional obligations for staff. But in the end, it can become much more costly not to provide this type of essential training.

I think it’s very important that lawyers, in their early years of practice, receive quality supervision from an experienced, competent lawyer who provides or instills a sense of professionalism and imparts professional guidance to lawyers so that, as they go on in their careers, they understand their professional responsibilities,” Athol observes.

Some obligations can be quite technical.

An area that causes frequent professional breaches is trust account regulations, which requires technical understanding,” Athol explains.

 

2. Become familiar with section 223 of the Legal Profession Act 

A key obligation concerning trust monies, and one which is frequently engaged in complaints involving solicitors, is section 223 of the Legal Profession Act 2006 (ACT).

This provision states that a law practice must hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received and disperse the trust money in accordance with the direction given by the person,” Athol says. “Section 223 gets a fairly regular run in complaints proceedings.”

Lawyers don’t need to be intimately familiar with every provision of the Legal Profession Act, but Athol does advise every lawyer to read the conduct rules, cover to cover, as it applies to their roles as solicitors or barristers.

Until you’ve encountered an ethical dilemma, lawyers may assume that they just know the answer,” Athol explains.

But in my experience, the answer to ethical dilemnas is not always obvious, and a lawyer’s obligations under the conduct rules are not all necessarily intuitive.

 

3. Remain vigilant when it comes to cost disclosure

When Australia sought to harmonise the regulation of the legal profession, probably one of the most significant changes that came into the legislation was consumer protection, particularly provisions around lawyers providing up-front cost disclosure (estimates) to the clients,” Athol says.

The purpose of the cost disclosure provisions is so that, when the client enters into the lawyer-client relationship, they have a good understanding of what that engagement is likely to cost the client.”

According to Athol, cost disclosure needs to be an ongoing process, beyond regular billing updates.

You don't provide cost disclosure only once at the start of a matter. If estimated costs change during the course of a matter, there is an obligation on the lawyer to provide continuing cost disclosure to the client. This way the client has an appreciation of how the initial costs disclosure might have changed,” Athol says.

“It is easy to forget to provide an updated cost disclosure to the client,” Athol explains. “Lawyers often think it’s good enough to provide regular bills to the client, but if a lawyer doesn’t provide regular, ongoing, updated cost disclosure to a client and that initial fee estimate changes, then the lawyer puts themselves and their law practice at risk of breaching cost disclosure obligations under the Act and a resulting cost dispute with the client.”

Some costs are easier to estimate than others. If you’re doing something routine, like conveyancing or drafting a will for example, it’s fairly easy to gauge from the outset how much time is going to be involved and what it's going to cost. However, other matters can be more complex.

A more complicated transaction or litigation might be harder to estimate from the outset, as there are many pathways which the matter might go down,” Athol says. “So, what might have looked like a relatively simple, straightforward case can turn complicated and therefore a more expensive case for the client than originally estimated.”

This type of oversight can easily happen when you are running a busy practice.

“As the lawyer, it’s easy to become focused on just doing what needs to be done to meet the next court date, or responding to whatever is happening in the litigation, particularly as things move very quickly. It is easy to forget to do the more mundane things like update the client on cost disclosure.”

 

4. Institute systems to ensure compliance with ethical obligations

Athol advises law practices and lawyers to institute systems and procedures to ensure that everyone in the firm complies with their legal professional obligations, including the law practice itself.

Principals of a law practice have a positive obligation to supervise employed lawyers and administrative staff.”

It's easy to say these things, but different when you're operating in a busy practice and there are competing demands on everyone’s time, including the principals,” Athol observes. “The best way to tackle this is for any principal of a law practice to establish proper systems and procedures to ensure that they and everyone else in the firm are complying with the obligations of law practices and lawyers. Complying with lawyers’ ethical, statutory and other obligations need to be given appropriate priority.”

Good systems can ensure, for example, ongoing costs disclosure is made to clients and that files are regularly reviewed so that fee estimates to clients are updated. A firm should institute a system to regularly review files including to ensure that a current and recent fee estimate has been provided to the client.

 

5. Seek guidance when you’re unsure

If you can't get the answer within your firm, talk to someone else outside of your firm and get some advice,” Athol says.

If a lawyer is the subject of a formal complaint about their professional conduct, they shouldn’t try to be their own lawyer. They should get help from someone who understands the area of lawyer occupational discipline. Like in any matter, trying to be your own lawyer is typically not a great idea.”

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REVEALED: The College’s most popular on-demand CPD short courses for 2024

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REVEALED: The College’s most popular on-demand CPD short courses for 2024

To prepare you for what’s next, let’s unpack the College of Law’s 5 most popular on-demand CPD Digital Subscription courses. It’s the best way to keep your skills sharp – and your mind engaged.

From procrastination to passion

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From procrastination to passion

Overcoming procrastination is quite simple: passion. There must be an internal desire, not dependent on anything except ourselves. That’s why we enable our learners to choose the courses and practice areas that matter most to them - from family law to advocacy - we’re helping lawyers reclaim their power and focus on the areas that they are passionate about.

Your Guide to a Career in Legal Operations

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Your Guide to a Career in Legal Operations

In Australia, the legal profession is evolving rapidly, driven by technological advancements and complex demands from clients and employers. Legal operations professionals, not necessarily with legal backgrounds, are pivotal in integrating new technologies, project management, and process improvements to meet modern market needs.

Nationally Accredited Mediator Training Course Guide

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Nationally Accredited Mediator Training Course Guide

Download our Nationally Accredited Mediator Training handbook, if you are considering adding mediation to your skill set. Inside you'll find everything you need to know about the course.

Vale Kay Smith

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Vale Kay Smith

On Monday 15 August 2016, Kay Smith, one of The College of Law’s longest serving and most respected people died after a short illness.

Kay’s legal career began when she gained her qualification in Law through the NSW Legal Practitioners Admission Board. Kay then obtained a position as an articled clerk with a city firm at a time when there were very few openings for women in the legal profession. She was admitted as a solicitor and established a legal career. She moved from private practice to the College of Law in 1983 – the start of a 30 year career at the College.

A Guide to Cross-Qualifying as an Australian Lawyer in the UK

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A Guide to Cross-Qualifying as an Australian Lawyer in the UK

The College delves into the key requirements, steps involved, and potential challenges of cross-qualifying as an Australian lawyer in the UK. We spoke to Duha Al Hassnawi, an Australian foreign lawyer based in London, for her insights on the dual qualification process. Duha is currently enrolled in The College of Legal Practice’s SQE1 prep course.

Dispute Resolution Postgraduate Programs Course Guide

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Dispute Resolution Postgraduate Programs Course Guide

Download the Dispute Resolution Postgraduate Course Guide to learn how our program can equip you with essential skills to resolve conflicts effectively and build a rewarding career in this growing field.

Graduate Certificate in International Arbitration Practice Course Guide

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Graduate Certificate in International Arbitration Practice Course Guide

Download the Graduate Certificate in International Arbitration Practice Course Guide and unlock the skills needed to navigate complex, cross-border legal disputes with confidence and efficiency.

Property Law Postgraduate Programs Course Guide

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Property Law Postgraduate Programs Course Guide

Download the Property Law Postgraduate Course Guide and discover how our specialised program can help you build expertise and thrive in this dynamic field.

Graduate Certificate in Applied Law Guide

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Graduate Certificate in Applied Law Guide

Looking to boost your legal career but not ready to dive into a Master of Laws (LLM)?
 
The Graduate Certificate in Applied Law might be the answer.
 
Offering a flexible and affordable way to upskill, the Graduate Certificate is a popular option for busy legal professionals looking to sharpen their skills or master a particular field.
 
Download this course guide to receive more information. 
50 years of expertise in one CPD solution

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50 years of expertise in one CPD solution

For 50 years, the College of Law has led the way in practical legal education.

We stand in our own lane – empowering practitioners to become the best lawyers they can be. How? With innovative, hands-on training that evolves with the demands of the legal profession.

Our CPD Digital Subscription is built on this legacy.

The legal ramifications of the Queen’s death are surprisingly small

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The legal ramifications of the Queen’s death are surprisingly small

We talk to the College of Law’s Adrian Deans, Academic Policy & Quality, James Crittenden, Head of Short Courses and CPD, and Lewis Patrick, Chief Academic Officer, about some of the pragmatic impacts of the Queen’s passing on the law and Australian legal profession.

3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

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3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

Parting ways in a relationship is never easy, and family lawyers are generally the first professional separating couples encounter when they end a relationship. For all of these reasons Angela Harbinson created The Separation Guide, which aims to make separation and divorce simpler, more manageable and less stressful.

Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

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Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

Starting a business is never easy. What step should you take first? How do you negotiate the ins and outs of your legal requirements if you’re not a lawyer? Even for a seasoned lawyer these steps are complicated…And what if you also face unique cultural considerations and complexities?

Self-awareness: The surprising foundation to a thriving legal career

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Self-awareness: The surprising foundation to a thriving legal career

There’s no doubt the legal sector can be an intense work environment. Thanks to heavy caseloads and fierce competition, lawyers and other legal professionals are facing stress, anxiety and burnout on a concerning scale. But according to executive transition coach and CEO at Lucent Global, Ellie Scarf, it doesn’t have to be this way. There’s one tool that can help you manage a plethora of professional challenges. That tool? Self-awareness.

5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

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5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

The law is a complex field heavily reliant on knowledge, interpretation and advice. This makes for a profession that can have far reaching consequences and, as a result, lawyers are held to high standards. Athol Opas presents annual ethics updates to firms to keep them abreast of recent cases of misconduct and/or common ethical breaches. We spoke to Athol to find out about the most common ethical breaches lawyers should be mindful of and to gain his top tips on complying within ethical obligations. 

What are the top negligence claims facing lawyers today?

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What are the top negligence claims facing lawyers today?

The College of Law investigates which legal practice areas are most at risk of negligence claims and why. We spoke to Lawcover’s Legal Risk Manager Glenda Carry about the practice areas most affected by negligence claims, what behaviours can lead to adverse claims by clients, and what risk mitigation strategies law practices can put in place.

When commercial acumen meets common courtesy: Ankurpreet’s LPMC story

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When commercial acumen meets common courtesy: Ankurpreet’s LPMC story

Ankurpreet Singh was thrust into a costly commercial conflict, which made him determine to pursue a legal career. To make his dream a reality, he enrolled in the College of Law’s LPMC – where he bolstered his business competence and confidence.

How to get into Wills & Estates with Rick Christie

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How to get into Wills & Estates with Rick Christie

Rick Christie, owner of ChristieLaw and committee member of STEP NSW, had always been attracted to the personal side of wills and estates. Insights spoke to Rick about how he came to specialise in wills and estates, what advice he might have for lawyers looking to move into the area, and what role industry organisation STEP can play for lawyers keen to become specialists.

Your Guide to a Career in Property Law

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Your Guide to a Career in Property Law

Download your guide to a career in property law for everything you need to know about property law in a nutshell, the personal strengths of a property lawyer, the core expertise of a property lawyer, related areas of expertise, and the career prospects in property law.

How to Become a Partner Guide

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How to Become a Partner Guide

This guide will help you navigate the first steps towards becoming a partner. It will help you reflect on your own motivations, assess your skill set, and determine the best path forward in your career.

New Resolution Institute and The College of Law partnership to maximise skills and experience

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New Resolution Institute and The College of Law partnership to maximise skills and experience

Resolution Institute and The College of Law are pleased to announce an exciting new partnership aimed at establishing a symbiotic cooperation which will maximise the resources of both organisations through mutual collaboration and the sharing of expertise and efforts in education and training.

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