Your viva voce examination is an opportunity for you to show your examiner that you have mastered the material relevant to your topic. The instructions from the learning guide remain. What follows are a few final clarifications to ensure you are well equipped to properly prepare for your examination.

1. You are prohibited from discussing this topic with another person until after the viva voce week is concluded. You are expected to work on this problem on your own. Evidence of collusion may result in academic misconduct allegations.

2. This is an oral examination. It is only involves you and the examiner. The only submissions to be accepted are oral submissions. There are no written submissions. Written submissions will not be accepted by the court. Written submissions will not be considered evidence of what you said, or could have said, during your examination.

3. You will be examined on the prompting material set below and only that material. It is prudent and recommended practice to find and read any cases or legislation referred to in the footnotes of your readings that are directly relevant to answering the issue(s) in your allocated problem scenario, as this will assist your understanding of the relevant principle(s) and its application to the facts of your problem scenario.

4. You are not required to do research beyond the set readings. If you choose to do further research, to more broadly assist your understanding, that is a matter for you. Further reading is encouraged if you have difficulty with the set readings, but is not essential.

5. The use of advocacy protocols provides you with a professional format within which to present your submissions. Your viva voce 'problem' provides you with a fact scenario upon which you can present submissions. The problem scenario does not cover all the readings you have been set and you are likely to be asked questions about more than just the scenario.

6. Unless otherwise advised you should assume that all problem scenarios are based in New South Wales.

7. The mock location for all viva voce examinations is the Local Court of New South Wales. This is the case regardless of whether the matter being discussed would normally be dealt with in the Supreme Court, New South Wales Civil and Administrative Tribunal, or elsewhere.

8. The use of advocacy protocols and a small problem does not mean that you are being assessed on your “advocacy” of the case. That is, your aim is not strictly to win “at all costs” for your client. The problem and protocols are a vehicle designed to assist you to show your knowledge of the broad area under examination in a professional manner.

9. To reiterate, the viva voce is an opportunity for you to show your knowledge and understanding of a broad topic, the application of law to facts and your communication skills. It is not an advocacy exercise per se. Please check the viva voce marking and feedback sheet for the explicit criteria upon which you will be assessed.

10. When you enter the meeting room/court you should consider the “court” to be sitting.  That is, you should be sitting at the “bar table” and be ready to begin your presentation. When asked by your examiner you should begin by introducing yourself and moving directly to your first submission about the first (or only) issue in your allocated problem scenario. Your fifteen minutes examination time begins the moment you are asked to begin – so do not delay in getting started.

11. When you leave the meeting room please do not engage in discussions with your student colleagues about what you just experienced. Apart from unfairly assisting another, who should be assessed on their efforts alone, you would be engaging in academic misconduct.

12. It is implied that where a section or rule from the Legal Profession Uniform Law 2015 (NSW), Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), or other relevant legislation, may be used in your submissions that you will refer to it. It is implied that you will apply the relevant common law where appropriate.

13. Please do not use flowery language or take too long making your submissions.  You only have fifteen minutes to show your knowledge and understanding – so being concise and accurate are essential.

Lawyers-client conflict

Readings for this viva voce examination

You are required to read Chapter 15 of your textbook. You should include in your preparation consideration of relevant case law, or articles. In addition to the recommended readings you are also required to consider the pod-casts for the Loyalty/conflicts topic. You must read the case of Country Law Services v Duff [2007] NSWSC 1509 (12 December 2007), found at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2007/1509.html

The problem scenario below should be examined in the light of the above readings and materials.  Please understand that simply providing submissions to the court about this scenario may not fully satisfy the requirements for this assessment item. That is, in addition to providing submissions to the court about the problem scenario you may also be examined about any other aspect of the readings, materials or extra case set for this viva voce topic. You may be asked questions, about those set readings or materials, which may be completely unrelated to the problem scenario. Please also note that the assigned case (above) does not necessarily assist you to answer your problem scenario. Please also note that where a legislative provision, or professional rule, is applicable you have the obligation to refer to it in your submissions.

Problem scenario

Patrick and Jaden are friends who met at university. Patrick studied law and Jaden studied business management. Patrick was admitted to practice as a solicitor in 1996. After a short period of supervision, Patrick became principal of his own law practice, and has remained as principal until the present day. Jaden became successful running a series of small businesses. From 1997 until the present day Jaden retained Patrick to provide legal services in many matters including wills, a trust deed, numerous loan agreements where Jaden lent money to other people, debt recovery matters, loan agreements in 2009 and 2010 where Patrick lent money to Jaden, a traffic matter, various conveyancing matters, and Jaden’s purchase of a property by contract for sale in 2014. The pair continue to meet weekly over coffee to discuss their families, sport and to discuss the prospective investments that Jaden’s businesses may make. In 2015 Patrick obtained a loan of $10,000 from Jaden.  There was no formal agreement encompassing the terms of the loan agreement and the only document was a receipt whereby Patrick acknowledged receiving “a loan of $10,000 today repayable on demand”. Patrick deposited the loan monies into his office account. Patrick gave Jaden $2000 cash per year for three years as part payment of the loan. In a letter in 2018 Patrick forwarded a cheque for $4,000 payable to Jaden as a repayment of the balance to the loan. The cheque was honoured and Jaden considered that the loan was completely repaid. Patrick, had also acted for Helen, a wealthy business owner, in a conveyance in 2001. In 2019, Helen lent money to a company ABC Pty Ltd. At the time of the loan Helen was unaware that Patrick had any financial or controlling interest in ABC Pty Ltd – in fact, Patrick was a silent partner in the business with Jaden. Helen, who was a prudent businesswoman willingly provided the loan amount to ABC Pty Ltd, but with the stock market volatility due to the corona virus pandemic in early 2020 was doing all she could to reduce her financial risk. When Helen discovered that Patrick had an interest in ABC Pty Ltd she sought to cancel the loan and also made a complaint about Patrick to the Law Society of New South Wales. Helen’s complaint about Patrick was on the basis that Patrick had been her solicitor in 2001 and was therefore compelled to advise Helen to obtain independent legal advice about the loan to ABC Pty Ltd. As Patrick had not spoken with Helen about the ABC Pty Ltd loan at all he had not provided that advice. As a result of the complaint by Helen the investigator from the Law Society of New South Wales asked Patrick to explain the details of the loan he had received in 2015. Patrick replied as follows:

“My relationship with Jaden is a very close friendship extending almost twenty years. The level of that friendship is so close that over this lengthy period we have confided in each other, and each sought and received the benefit of counselling as friends, professionals and confidantes. My friendship with Jaden is the relevant relationship to consider. Jaden retained my services as a solicitor over that period and all the work I did was of a routine nature, primarily conveyancing and small matters, mostly of a domestic or small business nature. Jaden never looked to me as a financial adviser. Jaden is, himself, successful in the business world. There is no evidence, or suggestion, that the loan to me in 2015 is an investment loan, or a transaction in respect of which Jaden looked to me for advice as to whether it was a sound commercial action. Indeed it was not an action of a commercial character at all. It was an act of friendship. As one would expect, the loan has been repaid as have previous loans from each of us to the other whenever they have occurred. I did not solicit the loan. Jaden wanted to lend money to me and I accepted the offer as much to accommodate the generous wishes of my friend as for any other reason. I was not stressed financially and had no particular need of the loan. Jaden did not complain about the loan.”

The Law Society lodged a complaint against Patrick in regards to his loan dealings with Jaden and Helen.

You have been approached by Patrick for advice and to make submissions in response to the complaints against Patrick. You should understand that your submissions should be based on the law, as you understand it. You are not obliged to make strictly partisan (client-oriented, client-winning) submissions if your view is that your clients’ positions are not correct. You are also entitled to be completely candid with the court about what you know – you are not subject to normal rules regarding client confidentiality or conflict of interests.