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Independence rules

Independence rules

By Gino Dal Pont

Ethics Litigation 

Lawyer independence must function to moderate the trajectory and cost of litigation. Snapshot An ethical tension exists between the partisan nature of legal representation and the dictates of lawyer independence. The exercise of independent judgment by lawyers serves both the administration of justice and the interests of clients. The partisan role of a lawyer, in acting for and representing the interests of a client, is well understood by lawyers and clients alike. Indeed, some lawyers and perhaps many clients perceive it as the lawyer’s paramount function. Lawyers are often, to this end, described as advocates for their client’s causes, in turn suggesting a one-eyed pursuit of client objectives. Of course, this is an incomplete as well as inaccurate conception of proper legal representation. After all, it has long been recognised that lawyers’ paramount obligation is owed to the court or, more broadly, to the administration of justice, to which any inconsistent duty to clients (and others) must yield (in turn underscoring the notion of a lawyer being an officer of the court). It is, therefore, unsurprising that some of the most entrenched ethical dilemmas probe the boundaries between these two duties. A High Court judge has observed, in this vein, that the difference between lawyers and other professionals is that in no other profession does the common law require its members to act contrary to their client’s interests.1 In a significant way, what lies at the core of setting the priority between duties is lawyer independence. The ethical tension is revealed in the paradox that buttresses this independence: lawyers are expected to act in accordance with client instructions, and foster client interests thereby, while at the same time standing independently from the client. Lawyer independence has various permutations, none of which can be downplayed, and dovetails into what can be described as the exercise of an independent judgment in representing clients, whether or not before a court. The requisite lawyer independence has ramifications when it comes to both a lawyer’s duty to the client and his or her duty to the court (or administration of justice). When speaking of the latter, its tentacles extend beyond merely not misleading the court (or another party in the course of litigation). That the court relies on its officers to exercise an independent judgment informs its inherent jurisdiction to restrain lawyers from acting where that independence is threatened or undermined. This may, for instance, be so where a lawyer is likely to be called as a witness2 or otherwise has an interest (other than professional fees) in the outcome of the case.3 Associating too closely with the client’s cause or objectives can likewise threaten lawyer independence. In this instance, as in others, being overly driven by a client’s desires and predilections, whether in an aim to please the client4 or by reason of being intimidated by the client,5 can spawn unprofessional conduct. There are occasions, moreover, where lack of independent judgment can, even if ostensibly propelled by client desires, foster a conflict between lawyer and client interests. Perhaps the most obvious illustration targets lawyers’ costs. It is evidently in the lawyer’s interests to maximise what he or she can recover as costs from a client, and it can hardly be assumed that this necessarily aligns with the client’s interests. In a recent Family Court case, against a backdrop of a “win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences” approach to family law litigation, the judge stressed lawyers’ duty to minimise costs6 (which had accumulated to around $860,000). The call is for lawyers to be more proactive in confining the trajectory and cost of litigation, in the interests of both clients and the broader administration of justice. This call, which has witnessed replication in civil procedure reforms spanning most Australian jurisdictions,7 is hardly confined to family law. Ultimately, though, it drills down to a commitment to the exercise of independent judgment by lawyers, one nowadays enforced by the “stick” of disciplinary and costs recovery sanctions. Gino Dal Pont is Professor, School of Law, University of Tasmania. 1. D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [113] per McHugh J. 2. See, for example, Mitchell v Burell [2008] NSWSC 772. 3. See, for example, R & P Gangemi Pty Ltd v Luppino Pty Ltd (2012) V ConvR ¶54-815 (where the lawyer was propounding a cause on the client’s behalf prompted by the lawyer’s own error). 4. See, for example, Attorney-General v Bax [1999] 2 Qd R 9. 5. See, for example, Victorian Legal Services Commissioner v Merhi [2017] VCAT 1054. 6. Simic v Norton [2017] FamCA 1007 at [2], [28] per Benjamin J. 7. In Victoria, see Civil Procedure Act 2010 s24.

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