Don’t kid yourself that you will receive justice in the courts simply by your son telling the truth about what happened to him. If your son has been accused of a criminal offence, it is important to try to find good legal representation to ensure his evidence is presented to the court in the best possible way.
If you can afford it, find someone quickly as your son must not make any statements or admissions that could be used as evidence against him later.
If your son can’t afford a lawyer, find out about legal aid in your state. If a legal aid package is available, sometimes you can persuade a decent lawyer to use that and represent your son.
Once you have found a lawyer, remember they work to get paid. Your lawyer is not your friend, nor your counsellor. The legal system is like the horse racing industry, conflicts of interest between trainers, owners, jockeys, bookies, and punters are inevitable.
The industry looks after the interests of the industry, so be mindful that your lawyer may make decisions which are not necessarily in your son’s best interest. You need to be precise with your instructions and vigilant with your record keeping. Do your best to be a professional client, always behave cautiously and professionally.
Sadly, many lawyers are far from ethical, and it isn’t easy for someone with no experience of the legal system to know how to find the right person. Don’t be afraid to shop around for the right lawyer, ask people for recommendations, check out reviews and ask around concerning a possible bias against men.
If you have a conversation with your lawyer and receive advice or give instructions verbally, always document the conversation in writing by sending a follow up email, for example: ‘Yesterday when we spoke you said…’ ‘As we agreed this morning, you will…’. This gives the lawyer the opportunity to correct any misunderstandings you may have, and it gives both parties a record of what was said.
If you want your lawyer to do something, even if you have told them verbally what you want them to do, always ensure you give them written instructions, for example: ‘My instructions are…’ and keep copies of all the emails you send and receive.
Lawyers can, and do, omit to tell clients about legal principles that apply to their situation and the legal options available to them. Here is an example from NSW:
A divorced man, his ex-wife and children had all been living in NSW. His ex-wife decided to move to Queensland and took their children without his knowledge. He engaged a lawyer for help with the situation and paid $15,000 in legal fees before the lawyer mentioned he could have applied for a recovery order himself. Remember to ask open-ended questions and ask for alternative options – it could save you a lot of time and money.
If your lawyer gives you advice you do not understand, ask for a full explanation, ask as many questions as you need to until you understand what they have said. Ask for the advice to be sent to you in writing.
Get a second opinion on the advice from another lawyer if you need to. If you have a gut feeling that your lawyer’s advice is incorrect, or against your interests, consider the advice very, very carefully before you accept it. Tell them if you’re not comfortable and seek other opinions – change lawyers, if necessary.
How to report a lawyer who has supported a false allegation.
In NSW, if the other side’s lawyer has made a statement that they know is untrue and you have evidence of this, you can make a complaint to the NSW Office of the Legal Services Commissioner. You can find a factsheet on their website Opposing Legal Representatives.
The Advocacy Rules for lawyers include the following principles:
- A lawyer must not knowingly make a false statement to the opponent in relation to the case (including its settlement).
- A lawyer must take all necessary steps to correct any false statement unknowingly made by the lawyer to the opponent as soon as possible after the lawyer becomes aware that the statement was false.
- A lawyer must not make a false statement to the opponent simply by failing to correct an error on any matter stated to the lawyer by the opponent.
- Lawyers should not make unsupported or irrelevant allegations or engage in insults or intimidation.
- Lawyers also have a duty to the court to be frank, honest, and independent. It is professional misconduct for a lawyer to knowingly mislead the court.
The NSW Legal Services Commissioner can examine whether a lawyer has deliberately and knowingly misled a court or tribunal.
What will happen if you make a complaint?
The people investigating the complaint will not help you draft your claim or submit evidence. If you provide evidence to support your claim in a format the investigators don’t accept, for example, you supply quotes from emails without also supplying copies of the full emails from which you have quoted, the investigator will close the investigation on the basis that they have ‘seen no evidence’ to substantiate your complaint.
In NSW the Civil and Administrative tribunal can make disciplinary findings and orders against a legal practitioner for unsatisfactory professional conduct or professional misconduct. Here is the step by step guide to make an application for the professional discipline of a legal practitioner.
Suing your lawyer for poor advice and obtaining financial compensation
Lawyers, just like doctors, accountants, and engineers, must have professional negligence insurance. If you believe your lawyer has acted negligently and consequently you have lost money, you can make a claim against your lawyer’s professional indemnity insurance.
You do not have to engage another lawyer to make a claim although there are plenty of lawyers who specialise in suing professionals who have acted negligently. You can write a ‘letter of demand’ to your lawyer and ask your lawyer to forward the letter to their insurer.
Law Cover provides insurance to all solicitors practicing in NSW. Law Cover’s website provides information on its services.
Barristers in NSW use other insurers. If a barrister has acted negligently during a court case, he/she may be covered by ‘Advocates Immunity’ which means you cannot obtain compensation for any financial loss you have incurred. However, advocates immunity does not apply to all advice given by barristers, for example if a barrister advises you to sign a consent order months before a trial, that advice is not covered by advocates immunity.
The Legal Services Council
There is a ‘Uniform Law’ governing lawyers’ conduct. The Legal Services Council provides information on this law.
The Uniform Law harmonises regulation of the legal profession, cuts red tape and creates a single system to govern legal practice. The scheme also promotes informed consumer choice and has strong consumer protection measures. The Uniform Law’s overall objectives are to promote the administration of justice and an efficient and effective Australian legal profession.
The rules of conduct for solicitors
The Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 include the following:
Section 3 – Paramount duty to the court and the administration of justice
3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
Section 19 – Duty to the court
19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.
19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading. 19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
Section 21 – Responsible use of court process and privilege
21.1 A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court.
21.1.1 is reasonably justified by the material then available to the solicitor,
21.1.2 is appropriate for the robust advancement of the client’s case on its merits,
21.1.3 is not given principally in order to harass or embarrass a person, and
21.1.4 is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.
How to report a lawyer you suspect is acting inappropriately
Each State and Territory has an independent statutory body that deals with complaints about lawyers.
The Office of the Legal Services Commissioner NSW 1800 242 958
Legal Services Commissioner QLD 1300 655 754
Legal Practitioners Conduct Board SA (08) 8212 7924
Legal Profession Board of Tasmania (03) 6226 3000
Legal Services Commissioner VIC 1300 796 344
Legal Profession Complaints Committee WA (08) 9461 2299
Law Society of the ACT (02) 6247 5700
Law Society of the Northern Territory (08) 8981 5104
These organisations will provide you with advice on whether, and how, you can make a complaint about a lawyer.