Assignment Task

Aim

The aim of this assignment is to enable you to demonstrate advanced technical knowledge of the law of lawyering and theoretical principles of legal ethics, as well as your ability to apply analytical and problem-solving skills to a factual scenario and conduct original research. You are required to identify the ethical dilemmas posed and to generate and transmit appropriate solutions or approaches. You must show your mastery of how to consider the factual context, the relevant laws of lawyering, the scholarly and theoretical literature and your ability to reflect.

Scenario And Questions

Background Facts

You started working as a solicitor in a suburban general practice, ‘Lawyers for Locals’ in June, 2023. They advertise themselves as ‘lawyers for local families – specialising in family law, estates, conveyancing and workplace law’. There are two partners, one employed

solicitor other than you, Wayne, who is nearing retirement, and two non-legal staff who do much of the conveyancing work, as well as attending to the reception – Deliah and Michael. You are working for Serina who heads up the family law and estates part of the practice.

The other partner, Barry, heads up the conveyancing and workplace law section.

You have been admitted for five years and completed your formal supervised practice at Fellows and Hughes, Solicitors, a firm that did mainly criminal law. You were keen to move out of that area of law and are very excited to have this new position at Lawyers for Locals. You have enjoyed the autonomy you have been given here, but would like to be able to talk to Serina about your files a bit more. She can be difficult to catch. A couple of times Wayne has noticed your concern and talked about the files with you. Workplace law is his usual area of practice – but he is a thoughtful and experienced solicitor.

In August 2023, Serina called you into her office and told you that a new client, Mia, had made an appointment to discuss a surrogacy agreement she plans to enter into. Mia was the daughter of a very valuable client named Jacob. Serina wanted her to get excellent service. Serina asked if you knew much about surrogacy laws, and you told her that you did a module about it in your family law course in your last year of law – and you thought you could find your old textbook that has a chapter about it. She said: “Well that’s more than I know. It’s such a complicated area of law. I’ll get Deliah to book Mia in with you next week”.

You spent the next weekend reading up on surrogacy so by the time Mia’s appointment arrived you felt prepared. You invited Mia into one of the interview rooms and she presented you with a document entitled ‘Surrogacy Agreement’, apparently drawn up by the ‘intended’ parents’ lawyers, Carina Family Law, and already signed by the intended parents, Chrissy and John Smyth. She also had a letter from Sharon, a counsellor, confirming that all of the relevant parties had attended counselling with her ‘as required

under the Surrogacy Act’ and that she would provide ‘all the necessary documents for the court order’. She was confident that everyone understood how the arrangement would work and the legal consequences of the whole process,

You checked some of the essential criteria under the Surrogacy Act 2010 (Qld) with Mia. She was 26 years old and did not have a partner – so no other consent was required. She assured you she had given her consent. She explained that she and Chrissy are cousins and Mia remembers when Chrissy was diagnosed with some kind of cancer when they were both teenagers. It was so awful. Chrissy was treated successfully but cannot ever carry a pregnancy.

Mia told you that the two women had got talking at a family party in early 2023 and Chrissy had told her how much she wanted to have a child with her new husband, John, who was away for work at the time. They got onto the subject of surrogacy. Mia told you that she was just working casually because she planned to head overseas for a couple of years at the end of 2024. She had no dependents – so providing she got pregnant fairly quickly, it could all work.

You had never actually seen a Surrogacy Agreement before, but you didn’t tell Mia this. However, you did say that you would like her to come back in a couple of days so that you could give her more comprehensive advice. Mia said that she wanted to sign the agreement then and there and get on with things – otherwise her overseas plans were likely to be jeopardised.

Amongst other clauses the agreement said that Mia had to advise Chrissy and John

‘immediately’ if she became ill in any way and must consult with them in respect of any treatment. It also said that if she became pregnant, they could visit her home at any time between 6am and 10pm on giving 24 hours’ notice. You pointed out these clauses to Mia, suggesting that she not agree to them, but she said: “I reckon they are just standard. I want to sign.” There was also a dispute resolution clause naming a well-known family law

mediator, Robert Strong, as the person to use that in the event of dispute.

Reluctantly you watched Mia sign the agreement and she instructed you to send it back to Chrissy and John’s lawyer. Before you put it in the mail you managed to talk briefly to

Serina about the situation. It all seemed a bit rushed to you, but Serina said: “Look – if they

are cousins – that makes Chrissy Jacob’s niece. Let’s not turn this into a family feud. They are all adults”. You sent off the signed agreement to Carina Family Law and sent a copy to Mia asking her to tell you if she fell pregnant.

In November you received a brief email from Mia saying that early tests suggested that she was pregnant. Everyone was happy. You heard nothing more until March when you received a frantic phone call from Mia. She was crying down the phone saying: “I’m sick of these two and how they are treating me. They come over all the time without giving me any notice. They look around with their noses in the air. Check my fridge to see if I have enough vegetables! They are here right now. Here talk to them”. Before you could say anything you were on the phone to Chrissy. You said to her: “Look, it might be best for you and John to leave. I’ll talk to Mia”. You made an appointment for Mia to come and see you the following day when she told you more about their regular intrusions into her life and that she wanted it to stop.

After an unsuccessful attempt to negotiate on Mia’s behalf through Carina Family Law, it is agreed to set up a mediation with Mr Strong the following week.

Scenario One

On the day of the mediation you meet Mia an hour beforehand at a nearby café. She mentions that she has been in that café recently to meet her “other” lawyer, Neil. When you ask: “What other lawyer?” she explains that she is under investigation for “stealing as a servant” from the real estate agency where she used to be employed. She thought it had all gone away. She tells you she didn’t take any money. It was a problem with the system. But now she has to go to an interview with the police next week. Neil has told her she could go to jail if she is found guilty – and that the trial could be within 3 or 4 months. She does not want you to tell Chrissy and John.

1. Do you need to disclose this to anyone? If so to whom and why? If not, why not?

Scenario Two

For the purposes of the next question, it does not matter what you decided in Q1.

You go into the mediation with Mia and for the first time you realise that the intended father, John Smyth, was a client of your previous firm, Fellows and Hughes. He was not married then and lived at the Gold Coast. You had not even thought about that John Smyth when you saw the agreement. Your old boss, Lionel, represented him on a plea of guilty for a charge of assault occasioning bodily harm. John got into a fight with a tourist outside a pub when they were both drunk. The tourist suffered some quite nasty injuries. It was when you were new to Fellows and Hughes and to practice. You did a lot of research on sentences for the case and looked through all of John’s references and other documents he had obtained for his sentencing. You also spoke to him a couple of times on the phone to check details – but the only time you met him was on the day of sentencing when you accompanied Lionel to court. You doubt if he remembers you. Lionel reckoned John was lucky not to go to jail.

2. Can you go ahead and represent Mia at the mediation? Why or why not?

3. Please briefly discuss any other ethical concerns raised by the Background Facts and the scenarios to this stage that you have not mentioned in your answers so far.

Scenario Three

For this question you must ignore the facts from scenarios one and two and only refer back to the Background Facts.

At the mediation something strange seems to happen between Mia and John. You sense a familiarity that you weren’t expecting. At one stage Mia mentions something about her old school (without naming it) and John says – ‘I hear they have built a whole new sports facility there.’ You wonder if they know each other better than you have realised? Chrissy seems to be main one talking for them, with John taking little part. However, with Mia at four months pregnant they all have to make this work, so various compromises are found.

After the mediation you invite Mia to have a coffee with you.

4. Would you ask Mia if she knows John? Why or why not?

Whatever your answer to the above – when you sit down together Mia says to you. “I think there is something I should tell you. John and I were teenage sweethearts. I have never told Chrissy. I didn’t realise it was that John who was her husband when I spoke to her at the family party. I had never introduced John to the family when we were together – we were too young, and it was a bit secret. I am not sure I have ever got over him really. It was weird sitting there in that formal room, knowing our history and that I am carrying his baby. I wonder how I will feel about handing the baby over the Chrissy.”

5. Are you going to tell anyone about this? If so, who will you tell and why?

Scenario Four

For this question you must ignore the facts from scenarios one, two and three and only refer back to the Background Facts.

The mediation settles things a bit. Chrissy and John agree to give Mia a bit more space and 24 hours’ notice of their visits (as in the Agreement) and you don’t hear from her again. Mia has gets to the end of the pregnancy and gives birth.

You arrange to see Mia to go through the documents that are required under the Surrogacy Act to apply for a parentage order. During the interview she says to you: “There is something that I have never told you. I like Chrissy and John and all that. I wanted to help out. But I also felt bad because eight years ago I borrowed $12,000 from Chrissy when I broke up with a boyfriend and he kicked me out of the place we had together. I have only managed to pay back about $2,000. Chrissy said she would not worry about the rest if I did the surrogacy thing. That worked for me!”

6. Can you still go ahead and apply for a parentage order under the Surrogacy Act ? Why or why not?