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Ethics : Someone to watch over me

Every Issue

Cite as: (2003) 77(8) LIJ, p.85

Defining what is essential to lawyers’ autonomy is the question confronting Victorian Attorney-General Rob Hulls.

In the past few months, Queensland and Tasmania have embraced considerable change in lawyers’ regulatory structures. The genesis of change was not identical, but there is a striking similarity in outcomes – a momentum towards less involvement by the organised profession in its own disciplinary processes. This trend has mixed ethical implications.

In Tasmania, the drama began about four years ago when a firm with a large exposure to mortgage business came unstuck amid assertions by the Tasmanian government that the Tasmanian Law Society had insufficiently controlled the solicitors’ mortgage sector.[1] In April this year, Tasmanian Attorney-General Judy Jackson announced that she intended to introduce legislation in September to set up a legal profession board to take over all regulatory functions from the profession.[2]

In Queensland, a perceived lack of appropriate activity by the Queensland Law Society (QLS) in its handling of fraud and misconduct complaints against a significant Brisbane firm[3] led the Queensland Attorney-General Rod Welford to limit the direct role of the QLS in complaints handling and place it under the control of a Legal Services Commissioner.[4]

While it is still unclear whether either Attorney-General will insist on strict independence in complaints handling, both Attorneys-General are moving to dismantle the “dual role” of the profession, essentially because they see self-investigation as a major ethical problem – one that sets up a structural conflict of interest. The question is – does this concern resonate in Victoria?

Victoria has had no major public scandal. The principled divisions that surround the roles of the Legal Ombudsman and the Law Institute are fairly well known. The Legal Ombudsman’s views essentially reflect the position of the Queensland and Tasmanian Attorneys-General.[5] On the other hand, the Institute has the classic concern of all law societies: that the removal of direct involvement by the profession in investigation and prosecution may lead to a sinister possibility – that a future state government, unhappy with a lawyer or law firm because of their political stance on a particular issue, might influence a disciplinary prosecution of that lawyer. I believe the concern is that such influence could be indirectly asserted via those members of the governing (legal practice) board who had been appointed by the government.

The Institute’s perspective is not impossible by any means. History is redolent with examples of judges and lawyers suffering for their ethical piety. The fate of Thomas More in Tudor England has been replicated many times over. Determined governments of the recent past have abolished entire tribunals that did not suit their purposes and, in our region the Malaysian legal profession has repeatedly suffered for its attempts to remain independent from government. Post-11 September 2001, the thrust of much federal legislation (e.g. the extension of anti-terrorist interrogation) is veering consistently to the right and, as this trend continues, it is more likely that certain activist lawyers will be seen as increasingly expendable in neo-conservative quarters.

Balancing ethical demands is not a formulaic process. Is the risk of our profession subverting a particular investigation because of a conflict of interest greater or less than the risk of a government influencing a disciplinary charge for its own purposes? This essential ethical question – defining what is essential to lawyers’ autonomy – now confronts Victorian Attorney-General Rob Hulls.

Mr Hulls has not been helped in his choice by the (Tongs) economic analysis which he commissioned to break the impasse, because that report obfuscates the central question with its distracting split of the profession into two camps.[6] The costs of regulation go well beyond cashflow and encompass a quintessential diversion of ethical methods. It would be unfortunate if the Attorney-General thought that the issue of independence, however understood, was an ephemeral and Kantian concept that is just not as important, in a utilitarian sense, as how much money was left for legal aid. Deciding the issue on this financial basis is attractive in the short-term, but will leave the other ethical issues festering.

What does all this mean for the ethics of the national profession? The Law Council of Australia says that it is unconcerned by the structure of state-based complaints handling systems:

“The proposed harmonisation of the profession has never gone to structures. Whether it’s a law society, ombudsman or legal services commission applying the rules is not a factor. The important thing is that they are all applying the same standards”.[7]

Ethical considerations do in fact cover both rules and structures and the Attorney-General must not only make a convincing decision, but also communicate the reasons for same in ethical terms if he is to have any chance of laying the independence ghost to rest.

ADRIAN EVANS is associate professor in law at Monash University and former coordinator of Springvale Legal Service Inc.

[1] Anne Barbeliuk, “Move to shake up Law Society” The Mercury, 21 May 2001, p3.

[2] Martine Haley, “New watchdog to regulate lawyers” The Mercury, 18 April 2003, p5.

[3] Sam Strutt, “Regulation on the way in Queensland after scathing report” The Australian Financial Review, 6 December 2002, p52.

[4] Sam Strutt, “Watchdog set to end self-regulation” The Australian Financial Review, 16 May 2003, p57.

[5] See Kate Hamond,

[6] Katherine Towers, “Advantages of centralised system outweigh costs: audit” The Australian Financial Review, 13 June 2003, p57.

[7] Law Council of Australian Secretary-General Michael Lavarch in Josh Massoud, “Queensland action prompts Victorian debate” Lawyers Weekly, 16 May 2003, p6.


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