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Scandal puts ethics in focus

Scandal puts ethics in focus

By Arthur Moses SC

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Snapshot

  • The profession faces a challenging task of restoring public confidence in lawyers, the courts and the justice system.
  • Legal representative bodies have an obligation to support and lead the profession in this space.
  • Central to ensuring the integrity of legal client privilege is an emphasis on the ongoing professional education and development of the legal profession.  

Client professional privilege must be respected.

The Lawyer X scandal continues to shock the legal community across Australia as the Royal Commission into Management of Police Informants progresses.

There is no doubt we as a profession face a challenging task in the months ahead of restoring public confidence in lawyers, the courts and the justice system. But we need not wait for the findings of the Royal Commission to begin this important work.

The profession will carefully consider any recommendations by the Royal Commission.

However, there is already consensus among law societies and bar associations around Australia that in response to this scandal we must strengthen and redouble our efforts to educate both young lawyers and even the most seasoned practitioners on the highest standards of ethical conduct.

That is not to cast aspersions on current programs or practices. The overwhelming majority of Victorian barristers and solicitors are fearless advocates who go about their jobs every day in accordance with their ethical obligations. The presidents of the LIV and the Victorian Bar are strong leaders and have made very clear their profound disappointment in Lawyer X’s conduct.

But we must never be complacent when it comes to privilege. Client professional privilege is a fundamental protection and pillar of Australia’s legal system and is critical in ensuring compliance with the law and the maintenance of the rule of law in society. When breached, it jeopardises convictions and undermines public confidence in the courts, law enforcement, our criminal justice system and the legal profession.

It must be respected.

Central to ensuring the integrity of legal client privilege is an emphasis on the ongoing professional education and development of the legal profession, including young lawyers, of its fundamentals and appropriate application.

Ethics is already a compulsory component of annual continuing professional development for lawyers. But the Lawyer X scandal demonstrates why this must be viewed as much more than a simple tick-a-box exercise.

In a rare unanimous judgment last year, seven High Court judges held that Lawyer X’s actions in informing against clients constituted “fundamental and appalling breaches” of her duties to the court and to her clients.

The sanctity of privilege is a consideration that goes to the very heart of our professional duties. Representative bodies like the LIV and the LCA have an obligation to support and lead the profession in this space.\

While privilege is well entrenched in Australian law, changing technologies and business practices continually pose new threats to traditional ways of practising and raise new ethical dilemmas. These were illustrated recently in the Glencore matter in the High Court, where the key question was whether a regulator could use privileged material that had been disseminated into the public arena by a third party without the authority of the client who owns the privilege. This may become an increasing problem amid threats to cyber security and potential impacts on information held by lawyers.

Ethics induction, professional development and regular refreshers are critical to ensure ethical considerations remain at the fore of lawyers’ minds and practice.

It is important though that with any training, we get the balance right and ensure that the pendulum does not swing too far back the other way. If inappropriate claims of privilege are made by lawyers, we know such claims can be just as damaging as flagrant breaches of privilege, in obstructing the course of justice and undermining trust in the profession.

The Australian Taxation Office has recently raised concerns over the application of legal professional privilege when seeking information and documents as part of assurance and audit processes.

The LCA takes any perception of misbehaviour of legal practitioners very seriously.

Nobody is beyond the reach of the law, including lawyers when they engage in misconduct or act outside the scope of their duties.

If the legal profession is to be taken seriously, we must encourage and support lawyers to practise what we preach. And ensure we are preaching best practice. 

Arthur Moses SC is president of the Law Council of Australia.progresses.

There is no doubt we as a profession face a challenging task in the months ahead of restoring public confidence in lawyers, the courts and the justice system. But we need not wait for the findings of the Royal Commission to begin this important work.

The profession will carefully consider any recommendations by the Royal Commission.

However, there is already consensus among law societies and bar associations around Australia that in response to this scandal we must strengthen and redouble our efforts to educate both young lawyers and even the most seasoned practitioners on the highest standards of ethical conduct.

That is not to cast aspersions on current programs or practices. The overwhelming majority of Victorian barristers and solicitors are fearless advocates who go about their jobs every day in accordance with their ethical obligations. The presidents of the LIV and the Victorian Bar are strong leaders and have made very clear their profound disappointment in Lawyer X’s conduct.

But we must never be complacent when it comes to privilege. Client professional privilege is a fundamental protection and pillar of Australia’s legal system and is critical in ensuring compliance with the law and the maintenance of the rule of law in society. When breached, it jeopardises convictions and undermines public confidence in the courts, law enforcement, our criminal justice system and the legal profession.

It must be respected.

Central to ensuring the integrity of legal client privilege is an emphasis on the ongoing professional education and development of the legal profession, including young lawyers, of its fundamentals and appropriate application.

Ethics is already a compulsory component of annual continuing professional development for lawyers. But the Lawyer X scandal demonstrates why this must be viewed as much more than a simple tick-a-box exercise.

In a rare unanimous judgment last year, seven High Court judges held that Lawyer X’s actions in informing against clients constituted “fundamental and appalling breaches” of her duties to the court and to her clients.

The sanctity of privilege is a consideration that goes to the very heart of our professional duties. Representative bodies like the LIV and the LCA have an obligation to support and lead the profession in this space.

While privilege is well entrenched in Australian law, changing technologies and business practices continually pose new threats to traditional ways of practising and raise new ethical dilemmas. These were illustrated recently in the Glencore matter in the High Court, where the key question was whether a regulator could use privileged material that had been disseminated into the public arena by a third party without the authority of the client who owns the privilege. This may become an increasing problem amid threats to cyber security and potential impacts on information held by lawyers.

Ethics induction, professional development and regular refreshers are critical to ensure ethical considerations remain at the fore of lawyers’ minds and practice.

It is important though that with any training, we get the balance right and ensure that the pendulum does not swing too far back the other way. If inappropriate claims of privilege are made by lawyers, we know such claims can be just as damaging as flagrant breaches of privilege, in obstructing the course of justice and undermining trust in the profession.

The Australian Taxation Office has recently raised concerns over the application of legal professional privilege when seeking information and documents as part of assurance and audit processes.

The LCA takes any perception of misbehaviour of legal practitioners very seriously.

Nobody is beyond the reach of the law, including lawyers when they engage in misconduct or act outside the scope of their duties.

If the legal profession is to be taken seriously, we must encourage and support lawyers to practise what we preach. And ensure we are preaching best practice. 

Arthur Moses SC is president of the Law Council of Australia.


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