Ethical obligations

12.4 The professional and ethical rules and obligations are not less important than the ‘legal’ rules considered throughout this Report, nor are the two types of rules mutually exclusive. This chapter will focus on the more general professional and ethical duties placed on lawyers—duties or rules over and above those specifically developed to govern discovery practice. These ethical duties, and the enforcement mechanisms, are also more clearly directed to lawyers, as opposed to other parties.

12.5 In Australia, the key sources of lawyers’ professional responsibilities are general law, statute and professional rules—sometimes collectively referred to as the ‘law of lawyering’.[1] The statutory sources of ethical obligations in Australia include: the legal profession and civil procedure legislation in each jurisdiction; model laws; and other specific pieces of legislation.

Professional rules

12.6 The Australian legal profession is regulated on a state and territory basis. For most purposes, solicitors and barristers are regulated separately by professional bodies such as law societies and bar associations.[2] Lawyers practising in federal courts may be subject to regulation at a state and territory level. Legal profession rules are binding on Australian legal practitioners and Australian-registered foreign lawyers to whom they apply.[3]

12.7 While there are no national professional conduct rules in force, the professional conduct rules that apply to Australian legal practitioners are largely uniform. Most jurisdictions have now adopted some form of the Model Rules of Professional Conduct and Practice (Model Rules) developed by the Law Council of Australia (Law Council) in 2002.[4]

Legal profession legislation and the model laws

12.8 The legal profession legislation in each jurisdiction outlines general requirements for engaging in legal practice and obligations with respect to trust accounting and costs. The legislation also establishes regulatory bodies and processes for handling complaints against, and the discipline of, practitioners in the jurisdiction.[5]

12.9 The basis for legal profession legislation in all jurisdictions, except South Australia, is the Legal Profession Model Laws Project Model Provisions (Model Laws), developed by the Standing Committee of Attorneys-General (SCAG), with the Law Council.[6] The Model Laws were initially released in 2004 and revised in July 2006.

12.10 In February 2006, SCAG also released the Legal Profession Model Laws Project Model Regulations (Model Regulations), a revised edition of which was released in June 2007.[7]

12.11 The core provisions of the Model Laws and the Model Regulations that are relevant to this Inquiry relate to standards for legal education, definitions of misconduct,[8] costs disclosures and the regulation of legal practices.

Draft National Law and Rules

12.12 In early 2009, the Council of Australian Governments (COAG) embarked on the National Legal Profession Reform Project—a project to nationalise regulation of the legal profession in Australia. At the request of COAG, the Australian Government Attorney-General established a taskforce (the Taskforce) to consider options for the establishment of a ‘national legal profession and national regulatory framework, while retaining state and territory involvement and engagement by professional associations’.[9] In early 2011, the Taskforce released a draft Legal Profession National Law (Draft National Law) and draft Legal Profession National Rules (Draft National Rules).[10] These were lodged with COAG, and at its meeting on 13 February 2011, COAG ‘agreed in principle to settle reforms to legal profession regulation by May 2011 (with the exception of Western Australia and South Australia)’.[11]

12.13 One of the objectives of the Draft National Law is to ensure ‘lawyers are competent and maintain high ethical and professional standards in the provision of legal services’.[12]

Draft National Solicitors’ Rules and Barristers’ Rules

12.14 In line with a recommendation made by the ALRC in Managing Justice—A Review of the Federal Civil Justice System, Report 89, 2000 (Managing Justice)[13] and as part of the COAG National Legal Profession Reform Project, the Law Council and the Australian Bar Association (ABA) respectively have developed the Legal Profession National Rules: Solicitors’ Rules 2010 (Draft National Solicitors’ Rules) and Legal Profession National Rules: Barristers’ Rules 2010 (Draft National Barristers’ Rules).[14]

Other legislative obligations

12.15 There is also civil procedure legislation in some jurisdictions that regulates the conduct of participants in civil litigation and includes several provisions relevant to the discovery process.[15] For example, as discussed in earlier chapters of this Report, there is an obligation on lawyers to assist clients to act consistently with the overarching purpose of the Federal Court of Australia Act 1976 (Cth).[16] There is a similar obligation under other legislation.[17]

The Legal Services Directions

12.16 The Legal Services Directions 2005 (Cth) are a set of binding rules issued by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth) about the performance of legal work for the Commonwealth. The Legal Services Directions were first issued in 1999 and were revised and reissued in 2005 as a statutory instrument. Appendix B of the Legal Services Directions outlines the obligation of the Commonwealth and its agencies—and by extension, lawyers working for the Australian Government—to behave as model litigants in the conduct of litigation.[18]

Common law

12.17 The statute law outlined above is drawn from, and complements, the common law—in particular the law of contract, torts and equity—that governs ‘most incidents of lawyers’ relationships with their clients, the court and third parties’.[19] For example, a lawyer’s duty to his or her client arises in the context of the lawyer-client relationship, which is essentially a contractual relationship. Lawyers also owe a duty of care to their clients, which arises in tort, and a duty of confidentiality, arising in equity. This chapter will refer mainly to the statutory sources of law, outlined above, that complement this common law.

[1] See, eg, C Parker and A Evans, Inside Lawyers’ Ethics (2007), 4.

[2] A person who is entitled to practise as a barrister or solicitor in the Supreme Court of a state or territory is entitled to practise in any federal court, provided his or her name also appears in the Register of Practitioners kept by the Chief Executive and Principal Registrar of the High Court: Judiciary Act 1903 (Cth) ss 55B, 55C.

[3] See, eg, Legal Profession Act 2004 (NSW) s 711.

[4] Law Council of Australia, Model Rules of Professional Conduct and Practice (2002). The Model Rules form the basis for the following professional conduct rules: Professional Conduct and Practice Rules 1995 (NSW); Legal Profession (Solicitors) Rule 2007 (Qld); Rules of Professional Conduct and Practice (SA); Professional Conduct and Practice Rules 2005 (Vic); Legal Profession (Solicitors) Rules (ACT); Rules of Professional Conduct and Practice (NT). The Tasmanian rules have yet to follow: Rules of Practice 1994 (Tas). The Legal Profession Conduct Rules 2010 (WA) commenced on 1 January 2011.

[5]Legal Profession Act 2004 (NSW); Legal Profession Act 2007 (Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession Act 2004 (Vic); Legal Profession Act 2008 (WA); Legal Profession Act 2006 (ACT); Legal Profession Act 2006 (NT).

[6] Standing Committee of Attorneys-General, Legal Profession Model Laws (2nd ed, 2006).

[7] Standing Committee of Attorneys-General, Legal Profession Model Regulations (2nd ed, 2007).

[8] Professional misconduct at common law is conduct by a lawyer in their ‘professional capacity which would be reasonably regarded as disgraceful or dishonourable by [the lawyer’s] professional brethren of good repute and competency’: Allinson v General Council of Medical Education and Registration [1984] 1 QB 750, 763. Professional misconduct and unsatisfactory professional conduct is defined in Standing Committee of Attorneys-General, Legal Profession Model Laws (2nd ed, 2006) ss 4.2.1, 4.2.2. The statutory concepts are ‘neither exhaustive nor intended to restrict the meaning and application of misconduct at common law’: G Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010), 523. In South Australia the distinction is made between ‘unsatisfactory conduct’ and ‘unprofessional conduct’: Legal Practitioners Act 1981 (SA) s 5(1).

[9] National Legal Profession Reform Taskforce, Regulatory Framework (2009).

[10] National Legal Profession Reform Project, Legal Profession National Law: Consultation Draft (2010); National Legal Profession Reform Project, Legal Profession National Rules: Consultation Draft (2010).

[11] Council of Australian Governments, COAG Communiqué, 13 February 2011 <http://www.coag.gov.au/coag_meeting_outcomes/2011-02-13/index.cfm> at 18 March 2011.

[12] National Legal Profession Reform Project, Legal Profession National Law: Consultation Draft (2010), s 1.1.3.

[13] Australian Law Reform Commission, Managing Justice: A Review of the Civil Justice System, Report 89 (2000), Rec 13.

[14] Law Council of Australia, Legal Profession National Rules: Solicitors’ Rules (2010); Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010). Section 9.1.6 of the Draft National Law provides that the Law Council of Australia may develop proposed Legal Practice Rules, Legal Professional Conduct Rules and Continuing Professional Development Rules for solicitors. The section also provides that the Australian Bar Association may do the same for barristers.

[15] See, eg, Civil Procedure Act 2005 (NSW); Civil Procedure Act 2010 (Vic).

[16]Federal Court of Australia Act 1976 (Cth) ss 37M, 37N.

[17] See, eg, Family Law Rules 2004 (Cth) rr 1.04, 1.08(1); Civil Procedure Act 2005 (NSW) s 56; Civil Procedure Act 2010 (Vic) pt 2.2. Uniform Civil Procedure Rules 1999 (Qld) r 5(1); Civil Procedure Act 2005 (ACT) s 56(1). See also: J Spigelman, Just, Quick and Cheap: A New Standard for Civil Procedure (2000), Opening of Law Term address, 31 January 2000.

[18] Legal Services Directions 2005 (Cth). At the time of writing, these Directions were under review.

[19] G Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010), 15.