06_Regulation - Dispute Resolution and Legal Ethics 06...

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Dispute Resolution and Legal Ethics 06 – Regulation Page 1 of 23 P ART VI R EGULATION AND A CCOUNTABILITY 1 P ROFESSIONAL C ONDUCT 1.1 Overview of Processes in Victoria Parker describes professional conduct as ‘the law of lawyering’. Professional conduct rules govern the structure and operation of the legal profession. They regulate the behaviour of practitioners by setting admission requirements, promotional and customer service standards, and disciplinary consequences for breach of the regulations. Specific regulations for the legal profession are generally prescribed by the Legal Practice Act 1996 (Vic), professional bodies, the Victorian Legal Ombudsman, tribunals, and the state Supreme Court. They encompass: Admission requirements; Disciplinary system; Consumer complaints system (resolving lawyer–client disputes); and Consumer disclosure obligations (regulating legal promotion and advertising). Alongside these specific statutory and delegated regulations operate general law duties of care, fiduciary duties, and contractual obligations. Common law rules apply to lawyers and the legal profession and are enforced by courts and the government; the Supreme Court, for example, has inherent jurisdiction to control lawyers’ conduct and thereby retains final disciplinary authority. Relevant general law doctrines include: Fiduciary duties (primarily resolving conflicts of interests); Negligence (duty of care); Contractual obligations; and Competition, civil procedure and anti-discrimination laws. Sanctions for breach differ between regulatory and common law professional conduct rules. At common law, damages or an injunction may be awarded. A much wider array of disciplinary and remedial consequences follow from breach of regulations, including warnings, fines, disbarment and striking off a practitioner from the practice roll. 1.2 Critiquing Professional Conduct Rules The two systems of regulation reflect different ethical conceptions about what lawyers should be and how they ought to behave. Relatedly, the rules also embody different standards of professional autonomy (ie, how accountable the legal profession should be to external stakeholders). They highlight the difficulty of balancing self-regulation and professional independence against the broader public interest, competition, and social responsibility. Issue: what ethical assumptions are reflected in current professional conduct rules and processes? Principles of professional conduct may be critiqued by reference to the previously-mentioned ethical standards. It may be seen that rules set by the Law Institute of Victoria, the Victorian Bar and other Recognised Professional Associations emphasise lawyers’ obligations to their clients
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Dispute Resolution and Legal Ethics 06 – Regulation Page 2 of 23 and more heavily penalise breaches of client obligations than breaches of a lawyer’s duty to the integrity and administration of law. To this extent, then, such rules prioritise an adversarial
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06_Regulation - Dispute Resolution and Legal Ethics 06...

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