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Ethics: Am I my brother’s keeper?

Every Issue

Cite as: (2004) 78(7) LIJ, p. 83

Lawyers cannot safely assume that no professional duty exists to correct an opponent’s mistakes.

In the cutthroat world of litigation, where point scoring is seen by many as de rigueur, any duty to correct an opponent’s mistakes seems foreign. After all, it is reasoned, the adversary system entrusts to lawyers the responsibility to protect and further the interests of their own clients, not clients of an opponent.

To act otherwise may be a dereliction of the lawyer’s duty of fidelity to one’s client. So beyond cooperating with an opponent for the purposes of the efficient conduct of the proceeding, many lawyers see it as their duty to maximise any advantage stemming from an opponent’s mistake.

Yet the lawyer’s role cannot be categorised in quite so simple terms, for lawyers clearly owe a duty to the administration of justice. This duty is often cited to explain why lawyers cannot be a party to the presentation of false evidence in a proceeding. The Professional Conduct and Practice Rules 2003 speak in broader terms, however, admonishing lawyers in their dealings with other lawyers to act “in a manner that is consistent with the public interest”.[1]

Are there circumstances where taking advantage of an opponent’s error is inconsistent with the public interest? Chamberlain v Law Society of the Australian Capital Territory[2] suggests there may be.

The Federal Commissioner of Taxation had assessed the appellant (a legal practitioner) for tax totalling $255,579.20, but issued a writ which mistakenly claimed only $25,557.92. The appellant instructed an employee to have a consent judgment entered against him for the lesser amount. Unaware of the error, the Commissioner signed and filed the consent judgment. The appellant’s aim, which he ultimately achieved, was to gain a bargaining advantage over the Commissioner via an estoppel raised by the consent judgment.[3]

Success in the substantive proceedings, however, was no accurate barometer of the ethics of the appellant’s behaviour. In professional disciplinary proceedings the Full Federal Court held that a disciplinary order against him was called for. In reaching this conclusion, Black CJ said that to foster or induce a mistake that may involve the opponent in unnecessary expense or delay may be inconsistent with a lawyer’s duties to the profession, the community and the court. His Honour ’s concerns were that such conduct:

  • would be detrimental to a relationship characterised by courtesy and fairness that ought to exist between members of the profession, which in turn contributes to the effective and expeditious performance of legal work; and
  • may easily involve, or practically be close to, a misrepresentation.

Lockhart J similarly noted that it was the appellant’s active and elaborate role in procuring the entry of the consent judgment that marked his conduct as professionally blameworthy.

Chamberlain shows that, although the boundary between tough but legitimate tactics in an adversary system and unethical behaviour may be difficult to draw, lawyers should not assume that taking advantage of an opponent’s mistake invariably falls into the former category. Also, that the opponent is well resourced, knowledgeable and a frequent litigant will not exclude a disciplinary sanction.

But independent of possible disciplinary exposure, what should have Mr Chamberlain have done? Lockhart J was clearly of the view that the proper course was to have informed the Commissioner of the mistake. Of course, Chamberlain was an unusual case because the appellant personally sought to benefit from the opponent’s mistake. Yet this does not deny the value of the ruling, especially in light of various dicta in subsequent cases. In 1996 an English judge remarked: “even in the most hostile litigation (indeed, especially in the most hostile litigation) solicitors must be scrupulously fair and not take unfair advantage of obvious mistakes [of opposing lawyers]”.[4]

More recently again, in a case where the original statement of claim pleaded the wrong legislation, Kiefel J considered that “professional courtesy and the interest of both parties” required the error to have been brought to the applicant’s attention by the respondent’s lawyers.[5]

It follows that where the mistake in question involves the other lawyer’s client in unnecessary expense or delay, the proper course is to inform the latter of the mistake if to do so will not ultimately prejudice one’s own client. A short-term win may, in this respect, be little consolation if it means that the litigation extends for a longer period, or if a cavalier attitude prompts a less conciliatory attitude by an opponent or its lawyer.

Although the aforesaid may be an affront to some lawyers’ sense of fidelity to their client (or the self-satisfaction of outwitting an opponent), it highlights that, as participants in the administration of justice, lawyers’ responsibilities extend beyond their client.

GINO DAL PONT is a University of Tasmania Faculty of Law associate professor.

[1] Preface to “Relations with other practitioners”.

[2] (1993) 118 ALR 54.

[3] Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 (res judicata); Chamberlain v Deputy Commissioner of Taxation (1991) 98 ALR 617 (issue estoppel).

[4] Ernst and Young v Butte Mining Co [1996] 1 WLR 1605 at 1622 per Robert Walker J.

[5] Emirates Park Pty Ltd v Magic Millions Sales Pty Ltd [2002] FCA 1039 at [3].


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