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Ethics: Frank and fearless

Ethics: Frank and fearless

By Donna Cooper and Michael Dolan

Ethics 

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There are some unique ethical challenges that government lawyers may face.

Snapshot
  • All lawyers must be ethical in the practice of their profession and be aware always that their paramount ethical duty is to the court and the administration of justice. 
  • Lawyers working within government bodies and agencies in their role as legal advisers are no different from lawyers involved in other forms of legal practice. 
  • Work as a government lawyer can be fascinating, but not without its challenges. You are there to provide expert advice and services, frankly, fearlessly and independently of your client in accordance with your professional obligations.

Australia’s Chief Justice Susan Kiefel wrote: “Lawyers may generally be said to be necessary to the working of the law in all its respects. But it is only the ethical lawyer who is essential to a system of justice”.1

All lawyers must be ethical in the practice of their profession and be aware always that their paramount ethical duty is to the court and the administration of justice which, on occasions, may conflict with other ethical duties including those owed to their clients and other persons.

In this respect, lawyers working within government bodies and agencies (federal, state, territory and local) in their role as legal advisers are no different from lawyers involved in other forms of legal practice. However, because the client of government lawyers is their employer, some unique ethical challenges can arise. 

Government lawyers are subject to legislative obligations specific to the public sector that may intersect with their obligations as lawyers. They should ensure that they have a sound knowledge and understanding of the relevant duties applicable to them. In Victoria these include:

  • the Public Administration Act 2004 (Vic)
  • “Safeguarding Integrity” – IBAC guide to the integrity system in Victoria (December 2016) 
  • individual statutory provisions for various government agencies, eg, Legal Aid Act 1978 (s16)
  • Revised Model Litigant Guidelines for the State of Victoria (March 2011)
  • individual codes of conduct or policies published by Victorian government departments and agencies, including the Victorian Public Sector Code of Conduct published by the Victorian Public Sector Commission.

The role of lawyers in government service

In a speech delivered to an LIV government lawyers conference in Melbourne in 2017, then Victorian Chief Justice Marilyn Warren said:

“Government lawyers are advisers to the government but not part of it. The role is fundamental to the rule of law. While closely associated with government, government lawyers remain fundamentally separate from it and provide the first check on any abuse of executive power 

. . . The role of the government lawyer is important. It matters. Governments may make ‘political’ mistakes with legal consequences. The role of the government lawyer is to provide strong, sometimes courageous, accurate and independent legal advice”.3

How does the role of a government lawyer differ from that of other lawyers including in-house counsel in corporations and organisations and within private practice? 

The unique difference has been described as follows:

“The government is a very special client, and a lawyer instructed by the government faces particular issues and duties. The lawyer must determine whether he or she has been properly instructed by the government. At times the lawyer may need to determine his or her own instructions on the basis that the government would necessarily instruct the lawyer to act in a particular way. As we shall see, there will even be occasions when the lawyer is required to refuse to carry out the express instructions given by those having authority to do so simply because those persons must necessarily have exceeded their authority. These issues take on extra significance because the government is a client which has powers and obligations which far exceed those of the normal citizen”.4

Case study 1

The minister wants to terminate the club’s licence for political reasons

You are a senior solicitor working within a government finance department. Your department licenses a piece of land to a private sporting club within your minister’s electorate. Ahead of a forthcoming election, the minister has promised the local community that the council can use the land to establish a recreational park and children’s playground. To do so, the minister advises you that the sporting club will need to be relocated. When approached, the sporting club refuses as it still has several years to run under its licence. Some buildings on the land are not in good order so the minister instructs you that the sporting club be given a 28- day direction under the licence to repair them. You are asked to prepare the required notice. It is clear to you that the sporting club will not be able to comply with such a direction and will be forced to leave.

What is your ethical position regarding compliance with your client’s instructions?

This matter came before the Supreme Court of NSW in 2012.5

In finding against the Commonwealth, White J said at [200] that “The NSWRA contended that the remedy notices were not given in good faith because the Commonwealth did not want the buildings to be repaired, but gave the notices simply to trigger a default that would enable it to terminate the licence so that it could honour a political promise made by the member for Kingsford Smith. I accept that that was the Commonwealth’s motivation”.

The lesson from this decision is that the government lawyer should have provided to the minister frank and fearless advice that the government could not and should not do what it intended using improper means. Such legal advice would have fulfilled the lawyer’s paramount duty to the court and the administration of justice.

“In all of the examples discussed the client is subject to the rule of law. This obviously affects the duties and responsibilities of the lawyer instructed to act for the government. An instruction given to such a lawyer to do something that is unlawful, or to assist in something that is unlawful is not an instruction that the client can give in accordance with the law. The lawyer acting for the government cannot accept such instructions. By definition the person purporting to give the instructions does not have authority to do so. The responsibility of the lawyer to the client is to take whatever steps may be appropriate and to give such advice as may be necessary in order to have the instructions changed or varied”.6

Who is my client?

A commonly faced question for government lawyers is, “Who is my client?” Legal advice may be sought by a minister, government department or agency on behalf of the Crown which is your client in the pure sense. The Crown may have several faces but is largely considered one entity. Disputes and differences in strategy and opinion may still arise between government bodies. However, while there may be several legal entities capable of being sued, a key difference to private practice is that a whole of government approach is often favoured. This means that government departments, agencies or ministers typically do not litigate against one another.

It is important to remember that a government lawyer’s client is the entity not the person giving the instructions. Determining who is the client can be very important when dealing with potential and actual conflicts of interest.

Client legal privilege

Client legal privilege is a substantive legal right owned by the client, but strict tests have been set by the High Court of Australia before the privilege will attach to certain communications. The relevant communication must be confidential and between lawyer and client or a third party in appropriate circumstances (eg, an expert witness), and come into existence for the dominant purpose of seeking or giving legal advice or for prosecuting or defending actual or reasonably anticipated litigation. “The chief purpose of client legal privilege is not to confer a right for the benefit of the client, but to facilitate the administration of justice.”

For client legal privilege to apply, a properly qualified lawyer must be involved, preferably one who holds a current practising certificate. A government lawyer’s client may not be able to claim client legal privilege where the legal advice was mixed in with other advice relating to things such as policy, commercial, financial or other advice or information. It is therefore important to separate out legal advice from other forms of advice to ensure that the client can claim the privilege.

Legal advice can often be shared between different government bodies without losing client legal privilege. Similarly, where the client is a government department or agency, a minister or other person acting on behalf of the government, client legal privilege is held by “the Crown” in right of the relevant state or the Commonwealth. Further, persons who exercise authority in relation to that privilege (eg, re waiver) may change over time, for example, if there is a change in ministerial office holder or a change in government.

There is a need to ensure that the office in which a government lawyer works is structured with sufficient supports to ensure that it can truly provide independent legal advice, namely advice without any personal loyalties, duties or interests influencing their professional legal advice (and therefore client legal privilege can be maintained in that advice).

Case study 2

We don’t want to release your advice

You are a solicitor in a departmental legal team. You provide a 10-page legal advice about a proposed change to some statutory regulations which the government proposes to make. As well as obtaining a law degree at university you also obtained an economics degree with honours and spent an early part of your career working as an economist. Included in your advice are two pages of text containing your comments about some possible adverse economic outcomes in the event that the regulations are changed as foreshadowed. Some months later a member of the Opposition makes a request under the Freedom of Information Act for your advice. 

Is your advice privileged?

A case of this nature was heard in the ACT Supreme Court in 2007.10

The trial judge examined several documents, one of which was an email containing a mixture of advice:

“This email attaches an extract from the MinterEllison advice. The latter is undoubtedly privileged. It is, however, severable from the substantive email, the subject of which seems to be whether the then chief executive officer of the plaintiff had exceeded his authority having regard to the agency or management agreement between the plaintiff and ActewAGL. But in the course of the email, Mr Macara refers to legal advice that he had earlier given to the plaintiff. It might be possible to excise the portions of the email which disclose the legal advice, but to do so would render the balance of the email unintelligible. It seems to me that this is a case where it would not be appropriate to attempt to split the email into privileged and non-privileged portions. In the circumstances, the whole of the email should be treated as privileged.”

Government lawyers and practising certificates

The VLSB+C published a helpful fact sheet in 2014 which identifies the key points for government lawyers under the Legal Profession Uniform Law. It states “Under the Uniform Law, government lawyers must, generally, have a practising certificate.

“A government lawyer is defined as someone who engages in legal practice only:

  • as an officer or employee of a government authority; or
  • as the holder of a statutory office of the Commonwealth or of a jurisdiction; or
  • in another category specified in the Uniform Rules”.11

The fact sheet also explains the three exceptions to the requirement for government lawyers to hold a practising certificate:

  • 'engage in legal practice' is defined not to include engage in policy work (which, without limitation, includes developing and commenting on legal policy)
  • a person who is not admitted to the legal profession but who, at any time in the 12 months before commencement of the Uniform Law, fell within the Legal Profession Act exemption (s2.2.2(2)(g)) is exempt in respect of his or her official functions as a government lawyer
  • a person engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction (other than the Uniform Law) may engage in legal practice without a PC”.12

Model litigant guidelines

All government bodies and agencies have an obligation to act as model litigants. Being a model litigant requires government to “act honestly and fairly in accordance with the highest professional standards”.13

Croft J of the Victorian Supreme Court in Comaz Aust Proprietary Limited v Commissioner of State Revenue put it this way:

“The Model Litigant Guidelines have evolved from the recognition at common law that governments should play fairly, and seek to bridle excessively adversarial behaviour by setting acceptable standards and boundaries for the conduct of litigation. It has been said that the guidelines reflect the expectations citizens have of their government and its agencies to respect the rule of law, to observe the spirit as well as the letter of the law, and to be fair, honest and even handed when dealing with members of the public”.14

Conclusion

The work of a government lawyer can be fascinating, but not without its challenges. “You are there to provide expert advice and services, frankly, fearlessly and independently of your client in accordance with your obligations as a legal practitioner.”15

Navigating through ethical issues may be made easier by contacting the LIV Ethics advice line on 9607 9336. ■


Donna Cooper is head of LIV Ethics, Wellbeing and Practitioner Support. Michael Dolan is special counsel, LIV Ethics, Wellbeing and Practitioner Support.

  1. Chief Justice, High Court of Australia, Susan Kiefel, "Ethics and the Profession of the Lawyer" 26 March 2010, http://www.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/kiefelj-2010-03-26.pdf.
  2. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, Rule 3.1, https://www.legislation.nsw.gov.au/regulations/2015-244.pdf.
  3. Chief Justice of Victoria, Marilyn Warren, Remarks to the Government Lawyers’ Conference, 23 June 2017. 
  4. Bradley Selway QC (as he then was), Solicitor-General for South Australia, "The Duties of Lawyers Acting for Government" (1999) 10 Public Law Review 114. 
  5. NSW Rifle Association Inc v Commonwealth [2012] NSWSC 818, http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2012/818.html.
  6. Note 4 above. 
  7. NSW Law Society, Handy Hints for Government Legal Practitioners, 2019 LS3240_Policy_Handy-hints-gov-sol_v3.pdf (lawsociety.com.au).
  8. Law Council of Australia, Client Legal Privilege, Policy Agenda, https://www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-and-ethics/client-legal-privilege.
  9. Note 7 above.
  10. Actew Corporation Limited v Mihaljevic & Ors [2007] ACTSC 39. 
  11. The Victorian Legal Services Board + Commissioner, Government Lawyers and the Uniform Law, Fact Sheet, November 2014, https://lsbc.vic.gov.au/government-lawyers-and-uniform-law.
  12. Note 11 above.
  13. Note 7 above, p5.
  14. Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294, para 74.
  15. Note 7 above, p5.

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