Legal Ethics & Professional Responsibility
Order Instructions
– PLEASE MAKE SURE IT IS AGLC 4 CITED, NOT APA 7
Assessment Task 2 Legal Problem Fact Pattern:
Jenny purchased a new extension ladder from “Awesome Ladders” as she was planning to repaint her single level timber home in Hawthorn (Vic)/Haberfield (NSW)/Hawthorne (Qld). On using the ladder for the first time the extension mechanism failed and she fell off the ladder fracturing both legs, her left arm and two ribs. She would like to sue Awesome Ladders for negligence and consults solicitor Robert Mackay to commence proceedings.
Jenny executes a written retainer agreement with Mackay which includes a clause that states:
“12. The client authorises the lawyer to engage, at a cost to the client, any expert or experts that the lawyer deems fit to progress the matter in or outside a court of law.”
Mackay does not provide a written costs agreement or costs disclosure rather verbally assures
Jenny that the matter will cost no more than $50,000 and she is set to recover around
$150,000.
Jenny gives Mackay $30,000 in cash to cover the initial costs to start proceedings. Mackay places $10,000 of that money in his bottom desk draw, deposits $10,000 in his office general account to cover costs and disbursements and deposits the remaining $10,000 in his office trust account. Mackay does not issue a receipt to Jenny for the money.
After being unable to settle his client’s claim, Mackay prepares the matter for trial. He engages Professor Elizabeth Taylor from the University of Melbourne (Vic)/Sydney (NSW)/Queensland (QLD) who is an expert in mechanical engineering faults in consumer goods that lead to negligent accidents and personal injury. Professor Taylor is Australia’s leading expert in this area and charges $15,000 for an expert report including a one-off court appearance for one day to give evidence-in-chief and be cross-examined on her expert report. Mackay also, engages Mr Richard Burton from Monash University (Vic)/University of NSW (NSW)/Queensland University of Technology (Qld), who is a research assistant, to provide similar expert evidence as Professor Taylor. Burton charges $35,000 for his expert report and a daily rate of $2,000 per day to appear in Court to give evidence-in-chief and be cross-examined.
Both expert reports are filed in Court prior to the commencement of the trial. Professor Taylor gives evidence and is cross-examined during the trial. Her evidence is conclusive and persuasive and assists the plaintiff’s case. Burton is called to give evidence-in-chief and before commencing his evidence, Mackay is asked by the judge:
“Mr Mackay, is it necessary for Mr Burton to give evidence that is substantially the same as that just given by Professor Taylor who even the defence concedes is recognised by this Court as being Australia’s leading expert in this area?”
Mackay answers in the affirmative and leads evidence-in-chief after which the defence crossexamines and establishes that this area of mechanical engineering is not within the expertise of Burton.
Jenny wins the case and Mackay lists both expert reports and daily appearance rates in the bill of costs that the defence are ordered to pay. The defence complains about having to pay for Burton’s report and appearance.
Explain whether Mackay has breached his legal ethical duties and his professional responsibility? In your answer, refer to relevant legislation (including professional conduct rules) and any relevant case law.
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