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Ethics: justice before rules


Every Issue

Cite as: (2008) 82(4) LIJ, p. 76

A Queensland Bar Association rule appears to glorify form at the expense of substance. The LIV has gone down a different path.

Remember the Mohammed Haneef terrorism case? Dr Haneef’s barrister, Stephen Keim SC, faced with what appears to have been the intentional and prejudicial release to the media of parts of Dr Haneef’s record of interview, decided that his necessary course of action was to even up the debate by releasing the full interview. The result was a more balanced representation of Dr Haneef’s position. An appraisal of the complete record cast considerable doubt on the integrity of the prosecution. The charges against Dr Haneef ultimately failed.

Unhappy with that outcome, Commissioner Keelty of the Australian Federal Police lodged a formal complaint with the Bar Association of Queensland against Mr Keim.[1] The complaint alleged that his decision contravened r60 of the Bar Association Rules, which provided as follows:

“60. (a) A barrister must not publish or assist the publishing of material concerning a current proceeding except by supplying only:

... (ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court ... ”.[2]

Rule 60 contained no provisos that might exculpate Mr Keim and the Bar Association had no choice but to investigate at the request of the Queensland Legal Services Commissioner. Subsequently, the Commission conducted its own investigation and found a technical breach of r60 had occurred, but that Mr Keim’s actions were, in effect, excused because it was unlikely that a professional conduct tribunal, in the circumstances, would consider his conduct unprofessional.[3]

The ethical issue highlighted by the complaint is the wording of this rule – which is substantially the same as the corresponding Victorian Bar rule[4] – and, reflecting on that wording, the place of rules in the overall scheme of ethical behaviour.

The Keim case vividly illustrates the danger of an approach to legal ethics that glorifies the form at the expense of the substance. I have never been a fan of rules of conduct per se, especially those expressed in the unequivocal terms of r60, because they often purport, in a psychological sense, to contain the entire received wisdom of the profession on legal ethical issues. This sanctified coding effect is risky for us lawyers in particular because it is in our nature and indeed training to examine rules of all sorts to see where their limits are, if only to avoid them where possible. If we can assert a rule to censure something or someone, as Mr Keelty wished to do, then that rule can seem to control us to the exclusion of the whole of the circumstances. In Mr Keim’s case, both the Bar Association investigation[5] and the Commissioner’s own investigation[6] concluded that r60 had been breached, but that all the circumstances of the case did not justify a disciplinary prosecution.

Since ethics is not first about rules, but first about propriety and justice, so also the question arises, why was this rule cast in such narrow terms?

One submission made to the Bar Association of Queensland in relation to its Keim investigation made this point:

Rule 60 appears to have been intended for the common case of keeping an “ordinary” trial fair, by limiting opportunities in which the trier of fact is influenced by events outside of the court; not the super-ordinary example of a prosecution where the issue of fairness has already been subverted. If a barrister has reasonable evidence that there is a misuse of power on the other side or a miscarriage of justice is occurring, surely we would not expect r60 to stop him or her from preventing or correcting that injustice. To apply r60 in these circumstances would go against the intention of the framers of the rule.[7]

Queensland Bar r60 and the almost identical Victorian Bar r58 were emplaced without regard to extenuating circumstances, as occurred in the Keim case. Of course, most cases to which r60 would apply involve advocates subverting trial processes where the circumstances are far more mundane, but that is not to say that a case such as Keim could not occur again. It should not be necessary to argue that “as far as the law of what amounts to professional misconduct is concerned, the rules are only a guide and are not exhaustive. There is always room for a tribunal or court to apply the general legislative definition of misconduct to the facts and refer to the Bar’s rule, but not see it as determinative”.[8]

To cover a Keim situation, the LIV has not gone down the path of these Bars. Rather, it has a more economical and in my view wiser rule: “19.1 A practitioner must not publish, or take steps towards the publication of, any material concerning current proceedings for which the practitioner is engaged which may prejudice a fair trial of those proceedings or prejudice the administration of justice”.[9]

In both states, the rule applying to solicitor-advocates is better than that applying to barristers because it allows for all circumstances to play a role in deciding the propriety of an advocate’s conduct. Given Keim’s experience, the effect is fortunate for Victorian practitioners because we appear to be hosting more terrorism-related cases than Queensland. At least this protection applies for solicitor-advocates, if not barristers. Victorian barristers and their clients must still run the Queensland gauntlet if they encounter tactics such as those used against Dr Haneef, whose case exposes our professional demarcations. Why should the class of advocate determine what rules apply?


ADRIAN EVANS is Associate Professor in Law and convener of Legal Practice Programs at Monash University.


[1] A second complaint was lodged by Robert Biddle, a Brisbane solicitor. It was dealt with contemporaneously by the Legal Services Commissioner.

[2] Bar Association of Queensland, 2007 Barristers Rule. See http://www.qldbar.asn.au/index.php?option=com_docman&task=doc_download&gid=6. Accessed 6 February 2008.

[3] Legal Services Commissioner, Queensland, Media Statement, 1 February 2008. See http://www.lsc.qld.gov.au/ mediarelease/080201%20Stephen%20Keim% 20response.pdf. Accessed 6 February 2008.

[4] Victorian Bar Rules, r58. See http://www.vicbar.com.au/pdf/Current%20Bar%20Rules.pdf. Accessed 6 February 2008.

[5] See http://www.lsc.qld.gov.au/mediarelease/BAQ%20 Recommendation-Keim.pdf. Accessed 6 February 2008.

[6] See http://www.lsc.qld.gov.au/mediarelease/LSC%20 Decision-Keim.pdf. Accessed 6 February 2008.

[7] Submission by Australian legal academics to the Bar Association of Queensland, 10 December 2007. Copy on file with the author.

[8] Note 7 above.

[9] LIV, Professional Conduct and Practice Rules 2005, r19.1. See http://www.liv.asn.au/regulation/pdf/arf/conductrules2005.pdf. Accessed 6 February 2008. The irony is that the Queensland Law Society conducted a vigorous internal debate about the form of its own rule and specifically opted, as of 1 July 2007, for the format of the LIV rule.

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