THE UNIVERSITY OF HONG KONG FACULTY OF LAW Postgraduate Certificate in Laws Examination

Subject: Professional Practice and Management (PCLL 8040) Date:

9 January 2012

Time:

2:30 p.m. - 5:30 p.m.

This examination comprises two questions and you are required to ANSWER BOTH QUESTIONS in the answer booklet provided.

If you need further space, you should use the supplementary sheets provided by the examiners. The supplementary sheets must be attached to the respective answer booklet.

This question paper must be handed in together with the answer booklet.

Total marks for this paper is 88%.

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Question 1

PART A

Dr. Michael Conrad has been charged with the gross negligence manslaughter of the famous rapper star D.J.M.J. Dr. Michael Conrad is accused of giving D.J.M.J. a fatal combination of sleeping drugs while the rapper was staying on his luxury yacht moored at Platinum Point Moorings at the Gold Coast in Hong Kong. D.J.M.J. was suffering from extreme exhaustion and sleep deprivation and was being treated by Dr. Conrad for a number of months prior to his death. Dr. Michael Conrad denies gross negligence manslaughter saying that the rapper selfadministered the fatal dose of drugs.

Dr. Michael Conrad phoned a solicitor, Selene Sion, to ask if she would represent him. Selene Sion has an established personal injuries based practice and has dealt with many medical negligence cases. As this is a very high profile case she decides to take it on and intends to rely upon the assistance of her senior legal clerk, who has experience in criminal cases. Selene asks Dr. Michael Conrad, who is on bail, to come to her office the following morning to give full instructions. Immediately after this phone conversation Selene asks her senior legal clerk, to contact Barry Bosbourne, a well-known senior counsel, specializing in criminal law, to see if he would represent Dr. Conrad on the manslaughter charge. Barry is contacted and says he would be thrilled to take on the case.

At the meeting, the next day, Selene tells Dr. Conrad the good news that Barry Bosbourne has agreed to represent him at his trial in the CFI. Dr. Conrad asks how much the case would cost as he was concerned about the state of his finances. Selene tells him not to worry about the money at this stage. After Dr. Conrad insists Selene says that the fees would be in the region of $300,000 excluding regular expenses. Dr. Conrad tells her that he hopes his finances can stretch that far.

(a) Identify and discuss, from Part A, any issues concerning professional conduct involving Selene. (14 marks)

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Selene asks her clerk to send a brief to Barry, on her behalf, and to negotiate an appropriate fee. The clerk negotiates a fee of $400,000. When the brief arrives Barry Bosbourne realizes that the proposed date set for the end of the manslaughter trial was exactly one week apart from the start of a trial of a complicated and serious fraud case in which he had accepted representation. Barry decides that he might be able to finish the manslaughter trial just before the fraud trial is scheduled to begin.

Barry agrees to take on the manslaughter case and advises Selene to find medical experts on behalf of the defence. Selene instructs two suitable experts at the cost of S100, 000.

Before the start of the trial Selene sends Dr. Michael Conrad an interim bill for $100,000 for her costs and for $500,000 for costs on account of Barry's and the experts' fees. On receiving the interim bill Dr. Conrad is furious and asks why these sums exceed the $300,000 that they had agreed. He tells Selene that he cannot afford such exorbitant fees. Selene explains to Dr. Conrad that the $300, 000 was only for her costs and that they did not include counsel's or the experts' expenses. Selene convinces Dr. Conrad that given the nature of the case the fees were more than reasonable and that he should try to borrow some money for the payment of the fees and disbursements. Selene tells him that if he cannot find the money she would have to withdraw.

(b) Identify and discuss, from Part B, any issues concerning professional conduct involving (i) Selene and (ii) Barry. (16 marks)

PART C

At the trial in the CFI Barry Bosbourne is concerned that the jury will not be convinced by the defence case that D.J.M.J self- administered the sleeping drugs, so, he decides to pursue a line of questioning of the prosecution experts that implicates D.J.M.J.'s plastic surgeon Dr. Nick Tucker. Barry Bosbourne tells Selene of his tactics and she tells him that he should do what he thinks is best for the client. Barry then puts questions, in court, to the prosecution expert witnesses that an out-patient procedure undertaken by Dr. Nick Tucker on the day of the death of D.J.M.J. to reconstruct the rapper's nose had in fact been the cause of the fatal combination of drugs that led 3

to the rapper's death. Barry put it to the experts that it was the negligent procedures undertaken by Dr. Nick Tucker that had caused D.J.M.J.'s death and not the drugs prescribed by Dr. Michael Conrad. Although the experts denied that this was possible Barry was pleased as he knew he had placed a doubt in the minds of some of the jurors.

At the end of the prosecution case the trial was running at least three days longer than anticipated. Conscious that he might not be able to attend his fraud case Barry Bosbourne decides that the time can best be made up if Dr. Conrad did not give evidence in court. At the start of the defence case he tells Dr. Conrad that the decision has been taken by him and Selene to proceed without Dr. Conrad giving testimony as it would not advance his case. Dr. Conrad asks Selene if this was true and she confirms the advice. Dr. Conrad does not testify.

The night before the verdict is announced Dr. Michael Conrad takes an overdose of sleeping tablets and leaves a note saying that whatever the outcome of the case his career was over and that he could never repay the legal fees owing.

Barry Bosbourne immediately sends a fee note to Selene for his $400,000 fees. Selene tells Barry that as she has not been put in funds by Dr. Michael Conrad she could not pay those fees.

(c) Identify and discuss, from Part C, any issues of professional conduct concerning (i) Selene and (ii) Barry. (14 marks)

Total Marks 44

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QUESTION 2 (44 Marks) Your firm, Aslam & Lau Solicitors, has employed an advertising agency to develop a public relations campaign for your firm. The agency has produced a list of suggested campaign ideas and the senior partner of your firm has asked you to check through the ideas to ensure that they do not breach any relevant provisions before the partners make a final decision. The suggestions are: . Aslam & Lau Solicitors - 'cheapest conveyancing in Kowloon' • Aslam & Lau - 'great for litigation - we win more cases than our competitors' • 'Aslam & Lau - the Solicitors for Crime' - on posters in the lavatories of bars in LKF • 'Aslam & Lau Solicitors - see us if you have been injured and you want compensation' printed on the back of appointment cards at local hospital out patients clinic • 'Aslam & Lau - the only firm in Kennedy Town with a ground floor office' • 'Aslam & Lau - divorces from only HK$2000'. The agency has also suggested renaming the firm and they have put some alternatives forward: • Harry Potter Solicitors or • Billionaire Solicitors for Enterprise or Speedy Legal Services They suggest that each of these names would be attractive to young potential clients. (a)

What advice would you give your senior partner? (14 marks)

Fred, a businessman from the Mainland, has seen the Aslam & Lau website and is interested in using the firm's conveyancing services. He has identified a number of Hong Kong properties in which he wishes to invest. In particular, he wishes to purchase three units in Jen Towers, a new luxury residential development overlooking Clear Water Bay, at HK$20 million each for leasing out. The purchases will be financed through Fred's Mainland company. Incidentally, Fred is also interested in listing his company in Hong Kong and may use Aslam & Lau for this if the property purchases are carried out smoothly.

(b)

What should you consider before accepting Fred's instructions? 5

(6 marks)

Polly, a widowed lady aged 77, owns a substantial house with extensive grounds in the New Territories. Her financial means are limited as she lives on a small private pension. The property is a burden for her, and she wishes to sell it at the maximum price she can get. She was put in contact with Nigel, a solicitor in the litigation department at Cheung & Partners, who suggested that Polly should borrow HK$3,500,000, secured against the property, to carry out necessary repairs; appoint an architect to draw up plans for the development of two smaller houses in the grounds; and obtain building permission for the division of the grounds and the development of the smaller houses. The solicitor recommends Wan Chai Bank as a suitable Lender, for whom Cheung & partners also act.

Polly borrows HK$3,500,000 from Wan Chai Bank. The finance director of Wan Chai Bank is Nigel's wife.

Wan Chai Bank puts Polly in touch with Norman, a self-employed architect, who draws up the necessary plans. Norman says that his fees will be HK$100,000, and this necessitates Polly seeking a further advance of HK$100,000 from Wan Chai Bank.

Repairs to Polly's house, costing a total of HK$1,000,000 are made by Wilson, a self-employed builder who is also a client of Nigel.

Unfortunately, property developers have been very active in Polly's locality and, as a consequence, the state of the property market is such that Polly's property cannot be sold for as much as she had anticipated, and she withdraws it from the market. Wilson is laso threatening to sue Polly for unpaid bills in respect of the repairs.

Wan Chai Bank seeks to realise the security on the loan, on which Polly is currently unable to pay the interest.

(c)

Polly has seen Aslam & Lau's advertisements in the local newspapers and has come to seek your advice about Nigel's work for her. In particular, consider any professional conduct issues which arise. (12 marks)

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You were able to deal with Polly's problems to her satisfaction. In particular, you were able to arrange suitable refinancing of her property and its eventual sale. Polly has now moved to a more manageable apartment in Mid Levels. The day after the completion of the sale you received the following note and a parcel from Polly: "I am immensely grateful for your assistance in the sale of my New Territories house. I always know I can trust you as my lawyer. As a token of appreciation, I would like to present your wife with this 4.25-carat diamond ring which belonged to my mother. I hope she likes it." (d)

Can you accept the diamond ring on behalf of your wife? Please explain your answer. (6 marks)

Shortly after completing Polly's sale and purchase, you decided to leave practice as a solicitor and become a writer (which you have wanted to do for a long time). A publisher has expressed interest in your memoirs, particularly as you will discuss a number of interesting cases which you handled. You and the publisher both think that Polly's matter will be of interest to readers as it concerns a vulnerable old lady, a ruthless bank and arguably disreputable lawyers.

(e)

Will you be in breach of any rules of professional conduct by including Polly's case in your memoirs? (6 marks)

Total Marks 44

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