12.1 The professional and ethical obligations of lawyers, and how these obligations are exercised in practice, directly concern the practice and management of discovery of documents in litigation before federal courts. These obligations have a role to play in limiting the overuse, and reducing the cost, of discovery.

12.2 This chapter outlines the key sources of professional and ethical obligations concerning discovery and the existing and proposed disciplinary structures designed to monitor and enforce those and other professional and ethical obligations. The chapter then considers a range of potentially unprofessional or unethical discovery practices, with comments from submissions on their nature and extent in Australia. Broadly speaking, the submissions argued that discovery was in fact not widely abused in Australian federal litigation—or at least that there was no evidence of widespread abuse. It was stressed that, on the whole, lawyers conducted discovery responsibly and professionally. However, in the ALRC’s view, there is insufficient evidence to determine whether discovery is widely abused in federal litigation.

12.3 The chapter concludes by considering ways to foster professional and ethical discovery practices, and recommends: the development of discovery-specific commentary to professional conduct rules; and that providers of continuing legal education and in-house training provide training to legal practitioners on the law, practice and ethics of discovery. The chapter also suggests that law firms work to build work cultures that actively encourage and promote ethical and responsible discovery practices.