MLL110 LEGAL PRINCIPLES & SKILLS EXAM NOTES. problems

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1 WHAT DOES IT MEAN TO BE A LAWYER MLL110 LEGAL PRINCIPLES & SKILLS EXAM NOTES MYTH All lawyers earn a lot of money There is a right side and wrong side in a dispute A lawyer needs only to be good at arguing Legal work is glamorous and exciting REALITY Lawyers help people Lawyers give clear advice about complicated problems Lawyers are negotiators and advocates Lawyers read a lot AUSTRALIAN LAWYER Person who holds the qualifications in law and has been admitted by the Supreme Court LEGAL PRACTITIONER an Australian lawyer who holds a current practising certificate ROLES SOLICITOR Provides legal advice about transactions & disputes Drafts legal documents Conducts legal negotiations BARRISTER Provides legal advice and opinions Specialises in representing clients before the court or tribunal Takes briefs from solicitors ADMISSION TO PRACTICE REQUIREMENTS: - Educational requirements o Academic Requirements (complete Preistley 11) o Practical Legal Training Supervised Workplace Training (SWT) aka traineeship An approved PLT course i.e. Leo Cussens institute - Character based requirements o Relevant factors to good fame and character o Requirement of disclosure Previous criminal behaviour Previous improper conduct in the curial process Previous improper conduct in the course of a profession or employment (i.e. misappropriating funds) Infirmity (i.e. mental health issues) Complete and candour and disclosure (full and frank disclosure of any and all issues of misconduct and misdemeanours and relevant mitigating factors surrounding same) IMPORTANT WHY? Demonstrates the student is a fit and proper person under Legal Profession Act 2004 s Person is able to maintain a reasonable standard of competence and diligence required of lawyers

2 ACADEMIC REQUIREMENTS / LEGAL EDUCATION: PRIESTLEY Administrative Law 2. Civil Procedure 3. Company Law 4. Constitutional Law 5. Contract Law 6. Criminal Law and Procedure 7. Equity 8. Evidence 9. Professional conduct 10. Property Law 11. Tort Law CHARACTER- BASED REQUIREMENTS / PROFESSIONAL IDENTITY: A positive professional identity might be influenced by a positive view of the role of lawyers as defenders of rights, as upholders of duties, as champions of the rule of law and as resolvers of disputes (James & Field p 34). Important to ensure that as a lawyer you demonstrate the high level of dignity, professionalism and standards that society requires of lawyers. ACADEMIC INTEGRITY: Broad meaning: the requirement that you do not submit or claim as your own any work, ideas, research or information completed by another person/s (James & Field p35). Technically speaking it is ensuring that you do not commit offence of plagiarism by correctly acknowledging and referencing professional work that has assisted you in academia. RELEVANT CASES: Re OG Re Liveri Re AJG Legal Services Commission v Keough MORALS & ETHICS Broad definition: Morals are the rules or guides that enable us to distinguish between what is considered right and wrong. Ethics is the philosophical study of these morals usually at an individual level, however in professional practice many of these morals are described as professional ethics.

3 WHAT ARE ETHICS? Greek ethics SOCRATES ARISTOTLE HEDONISTS STOIC By examining/analysing yourself you will know that the right or wrong thing to do is Personal wellbeing or self-fulfilment based upon habit but within moderation (the right thing is the moderate choice in between two extremes which are the wrong choice) Doing what feels good is right Doing what will give you peace of mind is right Religious ethics CHRISTIAN ISLAMIC JEWISH HINDU BUDDHIST SECULAR Contains guidance and values to be followed through teachings in the Bible Through the Qur an & teachings of Prophet Mohammed permits people to have ability to discern what is written in the text and have moral responsibility to follow it Hebrew Bible & Torah contains guidance and values to be followed Practice of Kharma and reciprocity actions are not about the individual. One should act selflessly to be a benefit to others, what goes around comes around mentality Based on teachings of Buddha set out in Buddhist scriptures, promotes non-violence, care for others Based on principles of human reasoning, logic and moral intuition (common-sense defines what is right/wrong) Modern Ethics DEONTOLOGISTS CONSEQUENTIALISTS Not actually defined however consistent with principles set out for practicing law the ethical choice is consistent with ethical values that are objective and universal (unethical to murder) The ethical choice is the one with the best consequences looks at the individual subjectively

4 LAW AND ETHICS OR LAW V ETHICS LAW & ETHICS LAW V ETHICS - Provide rules of conduct - Purpose is to regulate human behaviour - Provide guidance to individual choice - Law has greater ability to be enforced, whereas ethics only guides choices with no real enforcer other than the individual. - Laws based on community values which are changing and evolving ethics provide guidance on community values - Ethics governs the individual, law governs the wider community.

5 WHAT IS LAW: Broad definition: Law can be broadly defined as a mix of social and judicial rules and responsibilities imposed on a particular society in order to maintain a just community. It seeks equality, order and protection of rights of members of the community by imposing responsibilities upon all the members as well as providing for sanctions against those who do not meet their responsibilities. PURPOSE OF LAW: 1. RESOLVES DISPUTES 2. MAINTAINS SOCIAL ORDER 3. REINFORCES COMMUNITY VALUES 4. HELPS THE DISADVANTAGED 5. STABILISES THE ECONOMY 6. PREVENTS THE MISUSE OF POWER WHAT SHOULD THE LAW BE? - Certain - Fair - Flexible - Accessible HOW DOES THE LAW CHANGE? 1. POLITICAL CHANGE change in government 2. CORRECTING ERRORS sometimes laws are not applied or interpreted the way in which the lawmakers intended change is required to enable the application or interpretation usually via amending words 3. CHANGING VALUES as laws reflect community values which are always changing over time, laws must keep up to be relevant 4. LOBBY GROUPS pressure from various lobby groups may see laws changed or amended 5. CHANGING TECHNOLOGY as technology develops so must law to ensure the appropriate governance over same reflecting community values TYPES OF LAW - Public (concerned with relationship between individual and the state - Private (concerned with relationship between individuals) - Criminal (establishes criminal offences and consequences between individual and the state) - Civil (dispute between two or more individuals, equates with private law) - Common law (law derived from judicial decisions) - Statute (law created by the legislative parliament) - Substantive (system of legal rules the set out the rights and responsibilities of individuals and the state) - Procedural (regulates legal processes in an attempt to protect rights i.e. right to trial by jury)

6 LAW AND EXTRINSIC STANDARDS: - NATURAL LAW THEORY an intimate and necessary relationship between the law and a set of objective standards external to the law itself. Some things are universally good or bad and the law should reflect and be administered in accordance with these unchanging external standards. o HISTORICAL APPROACHES Greek and Roman philosophy Aristotle natural justice proves a standard against which legal justice can be judged Stoic insists there is a rational and purposeful order to the universe (divine or eternal law). Natural law is the means by which a rational being lives in accordance with this order Cicero lex injusta non est lex (an unjust law is not law) refers to when a positive law is inconsistent with the natural law, the positive law is overruled Christian philosophy Aquinas Four types of law Eternal law (only God knows the universes plans) I.. I I Natural law Divine Law (the part of eternal law (found in the Bible) understood by beings) I Human Law (the natural law when codified and disseminated by government) Modern approaches Natural law is used to establish and justify set of objective standards against wartime atrocities and breaches of human rights. Informs content of bills of rights Hobbes & Locke Natural law is how a rational human being seeking to survive would act. Set of general rules (created by reason) which would only prevail if everyone submits to the commands of the sovereign. Finnis Seven intrinsic basic goods to define natural law: life, knowledge, play, beauty, friendship, practicable reasonableness and religion.

7 - LEGAL POSITIVISM o No necessary relationship between law and extrinsic standards. Law needs only to apply to intrinsic (legal) standards o Focus on what the law is instead of what it should be o Law is a social construction. Its validity is upon its legal source (if it has been made properly and in accordance with constitutional requirements rather than extrinsic standards of what is fair and good) John Austin (founder of legal positivism) Hans Kelson HLA Hart Law is simply a command used by the sovereign Backed by sanctons Sovereign is obeyed, does not obey higher authority Law is a science that deals with norms (statements about what ought to be) rather than facts (statements about what is) Law is a relation between condition and consequence Legal system is hierarchy of norms Grundnorm is highest basic norm assumed from an initial hypothesis. Norm is legally valid if it has been created according to a higher norm. Law is a general application applies to all individuals rather than a specific circumstance, and applies to the authority making the law Source of legal rule is not always a command (legislation is command, common law is decision by judiciary and is still law) Sovereign does not have unlimited powers but is restricted by the constitution which created it. Primary legal rules rules of conduct Secondary legal rules allow for the creation, extinction and alteration of primary rules Ultimate rule of recognition that legal officials have given legal rules validity Moral values and legal rules may overlap but there is no necessary logical connections (legal rules may lack moral values)