Fostering ethical discovery practice

12.61 The implementation of recommendations made elsewhere in this report should improve the general conduct and efficiency of discovery, and so reduce the likelihood of discovery abuse. However, it remains useful to consider how ethical discovery practice might best be fostered. This section will consider a number of methods to encourage high professional standards in the conduct of discovery. However, it may be useful first to consider whether lawyers know of their ethical obligations concerning discovery.

12.62 In the Consultation Paper, the ALRC asked whether lawyers and litigants were properly informed about their professional and legal responsibilities in relation to discovery.^[89] If they were not, the ALRC asked, what were the best ways of ensuring that lawyers and litigants were properly informed?^[90]

12.63 Some submissions argued that the obligations on lawyers and parties were already substantial and sufficient.^[91] A submission from a group of large law firms argued that

the existing framework of professional conduct rules, Court rules, Practice Directions and the common law impose appropriate obligations on lawyers and gives significant but appropriate powers to the Court.^[92]

12.64 The Law Council submitted that the ‘substantial ethical obligations relating to discovery’

clearly encompass the requirement that practitioners and litigants are fully informed and aware of their responsibilities. There are many judicial pronouncements that remind members of the profession of the enormous responsibility associated with the process of discovery. …

The Law Council is aware of proposals for the development of a process of certification that may also assist in ensuring that discovery responsibilities remain at the forefront of those lawyers involved.^[93]

12.65 It was submitted that discovery is often the topic of continuing legal education (CLE),^[94] although NSW Young Lawyers suggested that CLE seminars on the issue would help improve awareness.^[95] The OLSC (NSW) has stated that most regulators of the legal profession deal with discovery in the broader context of the ethical duties of lawyers, stressing that lawyers should not see themselves as ‘hired guns’, but have a duty to the court.^[96] Lawyers are also informed of their ethical duties at university, but ethical obligations concerning discovery ‘may not be emphasised within the law firm environment and during the day-to-day practice of law’.^[97] NSW Young Lawyers also argued for ‘greater industry awareness through each state’s law society—either via email or through industry magazines’.^[98]

Commentary on professional conduct rules

12.66 Professional conduct rules, as the primary site of articulated ethical obligations, fulfil a number of important roles within the Australian civil justice system. In particular they provide

a base for education, practical guidance to practitioners, and an agreed standard of behaviour to which disciplinary bodies can refer. For professional practice rules to be useful, the rules should represent attainable aims and be useful in dealing with the continuing ethical dilemmas of professional life, command respect and be enforceable.^[99]

12.67 However, professional conduct rules have been criticised for being too general and for not placing sufficient positive obligations on lawyers.

Too general

12.68 One criticism of the professional conduct rules is that they do not provide educators, practitioners, courts and disciplinary bodies with sufficiently specific and practical guidance on matters such as discovery practice. The ethical obligations in professional rules do not explicitly concern discovery. Rather, the obligations are general, and include: facilitating the administration of justice; not abusing court processes; narrowing the issues in dispute; properly advising clients; completing work as soon as possible; not misleading the court; and not destroying documents. Lawyers may be uncertain how to apply broad concepts to the specific scenarios that arise in everyday practice.

12.69 There appear to be two ways to approach this problem. The first is to amend professional conduct rules to include specific obligations concerning discovery. Such an approach would draw together existing broad obligations and make them more relevant to the discovery process. It might also impose new obligations, such as an obligation to disclose the existence of all documents considered relevant to the proceedings at the earliest practicable time.^[100]

12.70 Alternatively, commentary could be developed as part of, or to supplement, professional rules. This was the approach favoured by the ALRC in Managing Justice.^[101] Such commentary could provide ‘practical interpretations of the rules and examples of application’.^[102] A ‘principle-rule-commentary approach’, the ALRC argued:

combines appropriate features of these varied publications in one document, provides a more accessible and authoritative guide to professional conduct and improves the relevance of professional practice rules to the daily work of practitioners.^[103]

12.71 This second approach is also more aligned with the Draft National Law and National Rules, which have been described as ‘outcomes-based regulation’. The OLSC (NSW) has described ‘outcomes-based regulation’ as ‘moving away from reliance on detailed, prescriptive rules and relying more on high level, broadly stated rules or principles’. Outcomes-based regulation has been said to mean less red-tape and should avoid a narrow ‘box-ticking’ approach to ethics; principles have a broad application and can apply to a range of circumstances; principles are flexible and can respond to market innovations and other developments.^[104] Steve Mark, Legal Services Commissioner (NSW), has also said that:

Outcomes-based regulation can provide a basis for open dialogue between regulator and regulated firm, facilitating a co-operative and educative approach to supervision, particularly with respect to firms who are well-intentioned, but either ill informed, or simply confused as to what the regulatory provisions require.^[105]

Positive obligations

12.72 Professional conduct rules also often do not contain a positive or specific duty. For example, to the extent that the Model Rules provide that by choosing to confine a matter to the issues in dispute a lawyer will not have breached their duty to the client, the Model Rules have been criticised for not imposing a positive duty. This may be particularly relevant to the practice of trolley load litigation.^[106]

12.73 Similarly, with respect to delay, the Model Rules provide that a lawyer will not have breached their obligation to the client where they exercise forensic judgment so as to present the client’s case as quickly and simply as is consistent with its robust advancement.^[107] This rule has been criticised for not imposing a positive obligation on a lawyer to conduct a matter quickly and simply, but rather merely allows a lawyer to do so, operating in a ‘passive, defensive role (primarily for the benefit of the advocate) rather than in active support of the court’s function’.^[108] The Legal Profession Conduct Rules 2010 (WA), however, provides that a practitioner must, among other things, ‘confine the hearing of a matter to issues which the practitioner believes to be the real issues’ and ‘present the client’s case as quickly and simply as is consistent with its robust advancement’.^[109]

Submissions and consultations

Form and detail of professional obligations

12.74 In the Consultation Paper, the ALRC asked whether existing general legal ethical obligations in professional rules were sufficiently specific and clear so that lawyers were aware of their obligations concerning discovery and electronic discovery.^[110] The ALRC also asked whether professional conduct rules should be amended to include specific legal ethical obligations concerning discovery,^[111] or whether, as the ALRC proposed, these obligations should be expressed in commentary to the professional conduct rules.^[112] Such commentary might also address electronic discovery, the ALRC proposed.^[113]

12.75 A number of submissions argued that it was not necessary to introduce additional professional conduct rules specifically relating to discovery,^[114] particularly, as one submission stressed, in ‘the absence of any compelling evidence of wide-spread abuse’.^[115] The Law Council was satisfied that

the existing statement of obligations arising from the framework of legal ethical obligations created by legislation, Court Rules, Practice Directions and the rules of professional conduct is sufficiently clear and specific to ensure that lawyers are aware of their obligations relating to discovery.^[116]

12.76 Some submissions agreed that the rules are expressed in general or abstract terms, which may make them more difficult to apply.^[117] Accordingly, there was support of ‘the development of a practically focused commentary on those rules and obligations, providing concrete examples of ethical and legal issues concerning discovery’ and electronic discovery.^[118] The commentary would be ‘an excellent point of reference for practitioners and would raise much needed awareness’.^[119]

12.77 The Law Council also agreed that ‘the principle-rule-commentary approach will enhance understanding and assist solicitors to interpret and comply with their ethical obligations’ and said it was already developing commentary to the Australian Solicitors’ Conduct Rules:

The 2010 Australian Solicitors’ Conduct Rules will offer an enhanced and modern restatement of those obligations, structured under a principle-commentary approach. It is expected the updated Rules will be implemented—and the commentary published—before the remainder of the National Legal Profession Reform package presently before COAG. …

The commentary will be designed to explain and where relevant illustrate by example the application of the ethical principles embodied in the Rules. One aim of a detailed commentary is to improve the clarity of the Professional Conduct Rules and their application in practice, particularly in challenging circumstances.^[120]

12.78 Concerning whether such commentary should also focus on ethical obligations with respect to electronic discovery,^[121] the Law Council submitted that it intends to refer the ALRC’s concerns to its Professional Ethics Committee for consideration in the development of commentary to the conduct rules.

Best practice notes

12.79 In the Consultation Paper, the ALRC proposed that legal professional bodies issue to their members ‘best practice’ notes about the legal ethical obligations of lawyers with respect to discovery. The Law Society of WA and a group of large law firms supported this proposal.^[122] The group of law firms noted that the guidelines ‘should be focused on the practical issues that arise in applying the obligations’.^[123] The Australian Corporate Lawyers Association (ACLA) had ‘no real objection’ to such guidelines—they ‘might serve as a warning/reminder’—but expressed concern about how often they would be issued, whether they would be properly maintained, and ‘whether there is such frequency of problem in this area to warrant the proposal’.^[124]

12.80 The Law Council repeated that its Professional Ethics Committee was charged with the development of commentary to support the Australian Solicitors Conduct Rules and noted that this committee

has already identified that further ‘Best Practice’ or guidance product may be developed after the completion of the commentary to the Australian Solicitors Conduct Rules. The ALRC’s proposal in this regard will be referred to the Professional Ethics Committee for consideration.^[125]

ALRC’s views

12.81 The professional obligations of a lawyer with respect to discovery should be clear and explicit. This Report has not repeated the arguments for and against principles-based or outcomes-based regulation, but it seems clear that professional obligations concerning discovery should neither be so broadly expressed that they are vague and unhelpful, nor so precise and detailed that they become cumbersome, overly prescriptive, and of narrow application.

12.82 The ALRC sees no need to introduce new discovery-specific conduct rules. Specific rules for each element of a lawyer’s work are likely to make professional conduct rules unwieldy and inflexible, and might imply that there are no ethical obligations for work that does not have its own specific set of duties. Instead, the ALRC favours the introduction of discovery-specific commentary to professional conduct rules. Most, if not all, general ethical obligations will apply to the discovery process. Commentary would give lawyers guidance on how to apply broad professional rules to real and concrete problems that arise when conducting discovery. Accordingly, the ALRC supports the Law Council’s existing commitment to the development of commentary to the proposed Australian Solicitors’ Conduct Rules and recommends that this commentary include an explanation of the application of the Rules to discovery, with practical examples. In the event that some states and territories do not adopt the proposed Australian Solicitors’ Conduct Rules, or the commentary prepared by the Law Council, the ALRC directs its recommendation below to all legal professional associations.

12.83 The Professional Ethics Committee of the Law Council has noted that it may develop ‘best practice’ guidelines to supplement the commentary to the new professional conduct rules. The ALRC agrees that whether there is a need for such additional guidelines should become clearer when the commentary has been released. Any such practice notes would need to be updated regularly to respond to practitioners’ questions or evolving technological developments.

Enforcing ethical obligations

12.84 One obvious way to deal with discovery abuse is to pursue misconduct more pro-actively and discipline lawyers and others who commit discovery abuse. Professor Christine Parker and Associate Professor Adrian Evans have commented that ‘there are still few cases of disciplinary action being taken against lawyers for breach of their duty to the court or the law’ and that ‘it is hard to believe that there really are so few cases in each of these categories where disciplinary action might be warranted’.^[126]

12.85 A large proportion of disciplinary matters brought to the attention of relevant disciplinary bodies arise as a result of client complaints.^[127] However, courts, costs assessors and other lawyers also have a role to play in reporting alleged misconduct.

12.86 Under professional rules in Victoria and South Australia, lawyers have an obligation to disclose conduct that is contrary to the general standards of conduct expected of lawyers—that is, conduct that is dishonest, or calculated or likely to a material degree to be prejudicial to the administration of justice or diminish public confidence in the administration of justice—and any conduct or event that may adversely affect a lawyer’s ability to practise according to the professional rules.^[128] Whether such an obligation applies to lawyers reporting the conduct of other lawyers is unclear. It is arguable, however, that the obligation is restricted to self-reporting.

12.87 In addition, courts both as guardians of the administration of justice and in upholding their obligations under various pieces of legislation—the purposes of which are to facilitate the just, quick and inexpensive resolution of disputes—are charged with responsibility for responding to alleged lawyer misconduct. However, the ALRC understands that courts rarely initiate enforcement action in response to alleged ethical misconduct, other than by imposing costs orders.

12.88 Finally, in some jurisdictions, where a matter is subject to a costs assessment or review and the costs assessor considers that the legal costs charged are grossly excessive, they are under an obligation to refer the matter to the Legal Service Commission, or an equivalent body, to consider whether disciplinary action should be taken against the lawyer.^[129] Under the Draft National Law, a costs assessor:

(a) may refer a matter to the Commissioner if the costs assessor considers that the legal costs charged are not fair and reasonable; and

(b) must refer a matter to the Commissioner if the costs assessor considers that the legal costs charged, or any other matter raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct.^[130]

12.89 The ALRC understands that this also only occurs rarely.

12.90 In New Zealand, the United Kingdom and the US, rules require lawyers to report where they consider another lawyer’s conduct raises a ‘substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects’,^[131] constitutes ‘serious misconduct’,^[132] or where there are reasonable grounds to suspect the other lawyer is guilty of misconduct.^[133]

Submissions and consultations

12.91 In the Consultation Paper, the ALRC asked whether existing legal professional disciplinary structures were sufficient to deal with allegations of discovery abuse.^[134] If they were not, the ALRC asked, how should lawyers be disciplined for:

• a failure to comply with discovery obligations; or

• conduct intended to delay, frustrate or avoid discovery of documents.^[135]

12.92 The few submissions that directly addressed these questions argued that existing disciplinary structures were in fact sufficient and appropriate to deal with allegations of discovery abuse.^[136] The group of large law firms submitted that the focus should not be on punishment, but on ‘developing tools to help parties and their solicitors meet their discovery obligations as efficiently as possible’:

We agree with the views of his Honour Justice Finkelstein … that a focus on misconduct is a distraction from the main aim which is to get to trial as efficiently and fairly as possible.^[137]

12.93 One barrister submitted:

Because the ethical issues relating to lawyers abusing the discovery process are fundamental legal ethics issues it follows that current legal profession practice and conduct rules and procedures should be, and probably are, adequate for that purpose. The obvious adjunct to them, for blatant and glaring abuse of the process, on either side, would be to order the costs paid by the lawyer personally.^[138]

Whistle-blowing

12.94 In the Consultation Paper, the ALRC also asked about how best to ensure clients, lawyers and courts report allegations of lawyer misconduct.^[139] The ALRC also asked whether professional conduct rules should provide that a practitioner must promptly report misconduct arising in the context of discovery^[140] and, if so, what sort of conduct must they report.^[141]

12.95 Only two submissions addressed these questions. They stressed that ‘parties and their solicitors take their discovery obligations seriously’^[142] and that ‘legal practitioners generally discharge their obligations ethically and professionally and that acts of misconduct are rare’.^[143] This view, the Law Council submitted,

is supported by data contained in the reports produced by the independent legal services commissioners in Australian state/territory jurisdictions.^[144]

12.96 Both the group of large law firms and the Law Council also argued that, in the words of the submission from the law firms,

compliance with discovery obligations involves subjective decisions as to whether documents are relevant on which competent and reasonable lawyers may legitimately form different views, particularly in relation to documents of marginal relevance.^[145]

12.97 Mandatory reporting of misconduct was also not necessary, the group of large law firms argued, because:

• the adversarial process allows for a party’s compliance with its discovery obligations to be challenged and tested;

• the Court has the power to use cost sanctions against a party and its solicitors if they fail to observe their discovery obligations;

• a failure of a solicitor or barrister to properly perform his or her duties as an officer of the Court in relation to discovery may amount to professional misconduct that can be addressed by existing disciplinary processes; and

• it may be difficult for a practitioner to comply with a positive obligation to disclose misconduct. An allegation of misconduct not based on reasonable grounds could also be an abuse of process as the allegation being made may result in a party having to change its legal representation. It could lead to further interlocutory processes that extend the time and cost of the litigation process.^[146]

12.98 Concerning the question of how often costs assessors refer lawyers to disciplinary bodies for suspected overcharging,^[147] the Law Council submitted that in its view ‘legal practitioners generally do not engage in acts of gross overcharging’ and that

The data about findings in disciplinary proceedings contained in the reports of disciplinary authorities do not suggest that gross overcharging is a pervasive practice.^[148]

12.99 However, OLSC has stated that it is not uncommon for lawyers to be referred to disciplinary bodies for overcharging.^[149]

ALRC’s views

12.100 Consumers of legal services as well as the courts, costs assessors and other lawyers should play an important role in reporting misconduct. The ALRC has insufficient evidence of discovery abuse to justify recommending mandatory reporting of such abuse, particularly if this were to mean that discovery abuse were the only misconduct lawyers would be obliged to report. (It is beyond the terms of reference for this inquiry to consider the mandatory reporting of all professional misconduct.) Furthermore, the types of discovery that this Report is primarily concerned with—excessive and disproportionate discovery—will often involve matters of judgment and may be more difficult to clearly identify as abuse. Accordingly, it may not be reasonable to demand that practitioners must always report excessive discovery to regulators, though this is not to say that in appropriate circumstances, they should not.

12.101 In Chapter 7, the ALRC recommends the introduction of judicial education and training concerning discovery. This training might usefully include a discussion of when courts might report unethical discovery practices to disciplinary bodies.

Cultural change

12.102 Like many professionals, lawyers are influenced by the culture in which they work—by how their colleagues make decisions and what they believe their supervisors and clients expect of them. The Queensland Legal Services Commissioner, John Britton, has commented on the role of law firm culture and the ‘reality that individual lawyers conduct themselves in ways that are a function in part at least of the workplace cultures of the law firms within which they work’.^[150] Britton has suggested that the system ‘puts the spotlight on individual lawyers’ and ‘lets law firms almost entirely off the hook’.^[151]

12.103 Similarly, in addressing the weaknesses of the current regulatory regime, Professor Parker and others have been vocal in recognising the difficulties associated with identifying individuals within firm structures who are responsible for misconduct, particularly where potentially unethical or unprofessional behaviour may be an entrenched part of workplace culture.^[152]

12.104 In some jurisdictions, regulatory bodies have undertaken a more proactive and educative role in the enforcement of ethical obligations. In NSW, the OLSC’s approach is ‘regulating for professionalism’ within the framework of ‘education towards compliance’.^[153] The strategy involves working with lawyers to engender the development of an ethical legal culture, including requiring firms to ‘self-assess and report on their implementation of appropriate management systems’ as well as addressing individual misconduct and complaints.^[154]

12.105 The growth of commercial alliances between firms and corporations and the public listing of law firms has also increased the importance of ensuring that regulatory structures are responsive to the role played by firms and third parties in shaping the behaviour of individual lawyers, particularly where such structures may create tension between lawyer’s ethical obligations and those owed, for example, to a company’s shareholders.

12.106 Parker and her colleagues have argued that, although the values of individual lawyers influence their behaviour, ‘law firms and work teams structure and frame individual lawyer’s ethical decisions and behaviours’ and they do this in three main ways:

(a) limiting an individual lawyer’s capacity to ‘see’ ethical issues;

(b) constraining or creating options and opportunities for individual lawyers to make ethical judgments and act on them; and

(c) creating internal incentives, or magnifying external ones, that pressure individual lawyers to choose certain ethical behaviours.^[155]

12.107 Parker and her colleagues argue for ‘organisational level bulwarks to counteract organisational level pressures for unethical conduct’. This is broadly described as an ‘ethical infrastructure’:

A law firm ethical infrastructure means formal and informal management policies, procedures and controls, work team cultures, and habits of interaction and practice that support and encourage ethical behaviour. It might include the appointment of an ethics partner and/or ethics committee; written policies on ethical conduct in general, and in specific areas such as conflicts of interest, billing, trust accounting, opinion letters, litigation tactics and so on; specified procedures for ensuring ethical policies are not breached and to encourage the raising of ethical problems with colleagues and management; the monitoring of lawyer compliance with policies and procedures; and, ethics education, training and discussion within the firm.^[156]

12.108 Others have proposed that firms could engage in various forms of ‘ethical auditing’:

Departments and work-groups could be asked to formulate plans that would articulate standards or practice and propose mechanisms for ensuring compliance. On a rotating basis, departments, workgroups, and individual lawyers could be evaluated in terms of their performance with respect to these standards. …

It is time to begin to charge lawyers with responsibility for designing systems that regularly and actively analyse professional judgments.^[157]

12.109 Legal Services Commissions in both NSW and Queensland have developed voluntary questionnaires to encourage consideration of ethical issues by lawyers and law firms.^[158] A questionnaire about ethical discovery has been suggested in consultations.

Submissions and consultations

12.110 In the Consultation Paper, the ALRC asked how law firms might foster a culture of reasonable and ethical discovery practice.^[159] The submissions that addressed this question stressed that the proposed commentary to the professional conduct rules, discussed above, should help.^[160] This commentary ‘would support the continued development of a culture of ethical discovery practice’.^[161] NSW Young Lawyers also suggested that law firms could use this commentary to develop ‘policies and guidelines as a point of reference for their practitioners involved in discovery litigation’.^[162]

ALRC’s views

12.111 Discovery processes could be further improved and potential discovery abuse minimised by law firms—if they are not doing so already—training their own lawyers, setting strict ethical and practice standards, closely monitoring compliance with those standards, and insisting that discovery is to be pursued honestly, ethically, and in accordance with the letter and spirit of professional conduct rules. Law firms might, in this way, foster a culture of responsible litigation, professionalism, and ethical discovery practice. Such a culture should affect how litigation is conducted and focus on real decisions rather than mere ‘symbolic or formalistic ethics management initiatives that do not make any difference to everyday actions and behaviours’.^[163]

12.112 Professional conduct rules and discovery-specific commentary will be an excellent resource and reference point for firms. They should also be a strong foundation for induction and continuing legal education programs. It may not even be necessary for firms to develop guidelines that further interpret and apply professional conduct rules. However, law firms will need to continue to engage actively with the rules. This may only become more necessary under the proposed National Law and National Rules. Commentary to these rules might provide guidance in some detail, but one of the supposed benefits of principles and outcomes-based regulation is that they require ‘firms to think through how to comply’ and can therefore be ‘directly linked to management-based regulation’.^[164]

12.113 By regularly and actively engaging with the professional conduct rules, and considering how they apply to every stage of litigation, law firms can work to temper the aggressive adversarialism that has often been blamed for costly discovery practices.

Imposing obligations on parties and other non-lawyers

12.114 Lawyers do not have sole control over the conduct of discovery. Litigants, insurers, litigation funders, electronic discovery service providers and others can also greatly affect how litigation is conducted. In a submission to the VLRC’s Civil Justice Review,IMF Australia said that ‘[l]itigation funders, including insurers, have a greater capacity than most to systemically assist or retard the Court in achieving its Overriding Purpose’. IMF also stated:

Insurers, like funders, determine which claims are prosecuted and defended, choose the lawyers, instruct the lawyers and pay them and indemnify the insured in respect of adverse cost orders. None of these activities are currently regulated, leaving insurers, like funders, currently unaccountable for these activities.^[165]

12.115 The ALRC noted in its Managing Justice report that ‘many of the conduct issues associated with litigation concern not lawyers, but the litigants themselves’:

The justice system would operate quite differently if all litigants were reasonable, prudent, cooperative and fair.^[166]

12.116 Parties and other non-lawyers involved in federal litigation may be encouraged to play their part in facilitating an efficient and proportionate discovery process. Though the ALRC makes no formal recommendation about this topic, the chapter will now briefly note three ways in which this behaviour may be encouraged.

Overarching obligations

12.117 As discussed throughout this report, s 37N of the Federal Court of Australia Act provides that parties to a civil proceeding before the Court must conduct the proceeding in a way that is consistent with the overarching purpose of the civil practice and procedure, as defined in s 37M of the Act. Where they do not, the Court or judge must take that into account in awarding costs.^[167]

12.118 The VLRC considered in some detail the question of to whom its overriding obligations should apply, and its recommendation on this point was largely followed. The overarching obligations in the Civil Procedure Act 2010 (Vic) apply to parties, lawyers, law practices, and ‘any person who provides financial assistance or other assistance’ to a party where that person exercises either direct or indirect control over the conduct of the civil proceeding or of a party, including, but not limited to insurers and litigation funders.^[168] The court can make a range of orders where a participant contravenes the overriding obligations.^[169]

Best practice guidelines for litigants

12.119 In a submission to this Inquiry, a group of large law firms recommended the development of best practice guidelines for litigants:

It can be difficult to explain to clients the importance of and need to comply with a party’s discovery obligations. While large law firms have developed standard memoranda that explain this to their clients, this can be onerous for small firms. We recommend that a standard set of guidelines reflecting parties’ discovery obligations be developed, similar to that provided to all expert witnesses in the NSW Uniform Civil Procedure Rules. This could be set out in a Practice Note or Schedule to the Rules, and the Practice Note could also require the party’s deponent verifying the list to verify that he or she has read and understood the discovery guidelines. This would give more confidence to the participants in the litigation process that discovery obligations, including in relation to the discovery of ESI, had been explained to the parties in a clear and consistent form.^[170]

Model litigant rules

12.120 Model litigant rules are another way to impose duties and obligations on non-lawyers involved in litigation. As noted above, under the Legal Services Directions, the Commonwealth and its agencies must behave as model litigants in the conduct of litigation. This means the Commonwealth and its agencies, as parties to litigation, must act with complete propriety, fairly and in accordance with the highest professional standards.^[171] They must also endeavour to avoid, prevent and limit the scope of legal proceedings and keeping costs to a minimum.^[172] Indeed, the obligations contained in the Legal Services Directions go ‘beyond the requirement for lawyers to act in accordance with their ethical obligations’ under the legal profession acts and professional rules.^[173]

Legal education

12.121 There are concerns that current legal education with respect to ethical obligations may not fully equip lawyers to know ‘how to put ethics into action in real-life … contexts, or even to recognise ethical issues when they arise’.^[174] The following section gives a short overview of how discovery is now taught to lawyers and law students, and then proposes how this might be improved.

Academic qualifications

12.122 In all Australian jurisdictions, admission to practise as a lawyer requires the study of 11 areas of knowledge (known as the ‘Priestley Eleven’).^[175] These are the core subjects studied by law students in Australia. Discovery is usually taught in universities as part of civil procedure, one of these core subjects. Civil procedure in NSW, for example, includes the study of ‘obtaining evidence—discovery of documents, interrogatories, subpoena and other devices’.^[176]

12.123 Legal ethics is also taught at universities. For example, in NSW, law students must study professional and personal conduct in respect of a practitioner’s duty to the law, the Courts, clients and fellow practitioners.^[177]

Practical legal training

12.124 Civil procedure and ethics are studied again, with a different focus, as part of the practical legal training that must be completed before a person may be admitted to practice as a solicitor. To be admitted in NSW, for example, applicants must be competent in a set of skills, practice areas and values prescribed in the Legal Profession Admission Rules 2005 (NSW). Applicants must have achieved competence in, among other things, ‘civil litigation’ and ‘ethics and professional responsibility’.^[178]

12.125 Civil litigation practice refers to the ability of an entry-level lawyer to ‘conduct civil litigation in first instance matters in courts of general jurisdiction, in a timely and cost-effective manner’.^[179] This involves the ability to identify the issues likely to arise in a hearing and gather the necessary evidence. One of the listed means of gathering evidence is discovery.^[180]

12.126 Ethics and professional responsibility, the Rules state, includes:

• acting ethically;

• discharging the legal duties and obligations of legal practitioners;

• complying with professional conduct rules;

• complying with fiduciary duties;

• complying with rules relating to the charging of fees; and

• reflecting on wider issues.^[181]

Continuing legal education

12.127 Following admission to practice, in order to retain a practising certificate legal practitioners are required to complete a course of continuing legal education (CLE) or continuing professional development (CPD) each year. In October 2007, the National Continuing Professional Development Taskforce issued a set of national CLE Guidelines,^[182] which arose in part ‘from a concern that legal practitioners were not receiving sufficient ongoing education in legal and practical ethics and professionalism’.^[183]

12.128 The Guidelines recommend that practitioners be required to complete ten units^[184] of CLE activity each year, including at least one unit in each of the following ‘core areas’:

• practical legal ethics;

• practice management and business skills;

• professional skills;^[185] and

• substantive law (in some jurisdictions).^[186]

12.129 The Guidelines include a non-exhaustive, illustrative list of topics, arranged by these core areas. Topics listed under the practical legal ethics core area include ‘lawyer’s duties to the court’ and ‘ethics within a technical legal context’.^[187] While discovery is not specifically referred to in the list of examples of activities, in the ALRC’s view, a suitable study activity related to discovery could count towards a unit in the practical legal ethics core area, the professional skills core area or be studied as substantive law.^[188]

12.130 New South Wales, Queensland, Victoria and the ACT have either adopted the guidelines, or substantially based their scheme on the guidelines.^[189] Western Australia also requires practitioners to complete courses on ethics and professional responsibility, and legal skills and practice.^[190] Barristers in the ACT must also complete activities in ‘ethics and regulation of the profession’, and in substantive law and professional skills.^[191] In the Northern Territory, practitioners are required to complete a certain number of activities related to developing substantive law and legal practice competencies, but does not require particular courses in ethics.^[192]

Guidance from regulators of the legal profession

12.131 Guidance from regulators of the legal profession—in particular, state and territory bar associations, law societies and legal services commissioners—also plays a role in legal education. In addition to commentary to professional conduct rules and best practice guidelines (considered above), legal professional associations provide guidance through responses to individual inquiries,^[193] published ethics committee rulings,^[194] and online collections of articles and advice.^[195] Legal professional associations also maintain a register of disciplinary actions open for public inspection.^[196]

Submissions and consultations

12.132 In the Consultation Paper, the ALRC asked whether law students and lawyers were studying the legal and ethical responsibilities of lawyers with respect to discovery, and if so, whether existing training and education was sufficient.^[197] The ALRC also asked how law students and lawyers should be trained in the legal and ethical responsibilities of lawyers with respect to discovery^[198] and proposed that all of the key forms of legal education give appropriate attention to the legal and ethical responsibilities of lawyers in relation to discovery.^[199]

12.133 The ALRC heard that the matter was dealt with at some level in compulsory undergraduate litigation practice and procedure subjects.^[200] Michael Legg, a senior lecturer at the Faculty of Law, University of New South Wales, submitted that he teaches discovery to undergraduate students not by ‘overtly focusing on “ethics” but rather dealing with the obligations of legal practitioners and procedures regarded as best practice’:

The emphasis is placed on the duties that legal practitioners owe both to their clients and to the Court and that the conduct of discovery may bring those duties into conflict where clients want discovery to be conducted in a way that may be of technical advantage to them, i.e. imposing costs or causing delay but that such conduct is contrary to the lawyers’ duty to the court. The undergraduate subject then deals with the mechanics of how discovery works, which through the existence of the overriding purpose, brings into play the need to be cognisant of balancing justice, cost and avoiding delay. In the complex litigation subjects, and to a lesser degree in Litigation 1, emphasis is given to evaluating approaches to the conduct of discovery so that discovery may be conducted in the most efficient way possible.^[201]

12.134 NSW Young Lawyers, however, submitted that law students generally leave university without

any understanding of what an actual discovery entails, or with any knowledge of how a reviewing lawyer would go about assessing an actual document with proper method (reviewing for relevance, category, privilege and confidentiality). As a result, law students are ill-equipped to put together the individual pieces of law and practice together and perform an actual discovery.^[202]

12.135 Law students are also not given clear and comprehensive education on electronic discovery, NSW Young Lawyers submitted.^[203]

12.136 The Law Council and the group of large law firms submitted that the law and ethics of discovery is best taught though practical legal training and CLE.^[204] The challenges with discovery, the group of law firms said, were in the practical application of the obligations on a party and its solicitor.^[205] Discovery practice could be taught in the mandatory practical legal training ethics course, the Law Council submitted.^[206] While not branded as ‘ethics’ courses, the group of large law firms submitted, there were CLE courses on discovery that addressed the ethical obligations on both the parties and their solicitors.^[207] The law firms submitted that there was ‘no need for changes to the national CLE guidelines or requirements for legal practical training’.^[208] Speaking more generally, the Queensland Law Society expressed support for the provision of training to lawyers ‘regarding the ethical obligations and practical approaches with respect to discovery’.^[209]

12.137 ACLA, on the other hand, submitted that though ‘there may be a case for discovery being a small part of the CPD program of training in ethics,’ discovery was really a skill that

must be learned by practical experience rather than in a lecture or seminar or out of a text book … [ACLA] would not support it being part of a law degree or practical legal training.^[210]

12.138 On the question of whether more education was likely to reduce discovery abuse and misconduct in practice, most submissions were silent. Legg, however, argued that it would make a difference:

There may be recalcitrant individuals who will engage in discovery abuse and misconduct regardless of the level of education provided to them. However, in the vast majority of cases discovery and misconduct may be more determined by a cultural acceptance of certain misconduct within the profession as being consistent with adversarial litigation. … [E]ducation, particularly for law students and new members of the profession, can assist them to identify the situations where they may be asked to act in an improper way through having learnt that such conduct is not allowed.^[211]

12.139 But like most that considered the point, Legg noted the importance of the education being practical:

A clinical legal education program (and other forms of experiential learning such as case studies) also provide an important avenue for teaching the legal and ethical responsibilities of lawyers as they place students in real-life ethical dilemmas that they need to solve, albeit with the assistance of academics and/or practicing lawyers.^[212]

ALRC’s views

12.140 The study of a lawyer’s legal and ethical duties in relation to discovery should feature in existing university curricula, practical legal training, and in programs that form part of a lawyer’s continuing legal education. Continuing education is vital to ensure that lawyers are reminded of their ethical obligations and are able to consider and apply these in practice. Education also plays a key role in shaping legal culture. Admission rules across jurisdictions appear suitably broad and therefore should not need to be changed for universities and other providers of legal education to pay closer attention to ethical discovery practice.

12.141 In the ALRC’s view, although the topic can usefully be considered in subjects or programs dedicated to legal ethics, the ethics of good discovery practice should also be taught in core civil litigation subjects. Students and lawyers should understand that ethical discovery is intrinsic to good legal practice. Such subjects may usefully include real-life discovery problems and ethical dilemmas.

12.142 However, the most significant decisions about discovery in civil litigation before federal courts are likely to be made by experienced lawyers. The bulk of education about the law and ethics of discovery may therefore best be directed to practising lawyers who work in litigation and understand the real conflicts and difficulties of discovery. The ALRC therefore recommends that providers of CLE and in-house training pay particular attention to ethical discovery practices in relevant programs, such as those concerning civil litigation, ethics and management.

12.143 Providers of CLE and in-house training should also consider offering a subject dedicated to discovery. In Chapter 7, the ALRC recommends that the Federal Court, in association with relevant judicial education bodies, develop and maintain a continuing judicial education and training program specifically dealing with judicial management of the discovery process in Federal Court proceedings. Practitioners would also benefit from training directed at their role in facilitating a well-managed, efficient and proportionate discovery process. In particular, and in addition to the broader professional and ethical obligations noted above, practitioners would benefit from practically-focused training on the technologies and practices used to discover electronically-stored information and the preparation of discovery plans.