Introduction

4.1 The Terms of Reference for this Inquiry direct the ALRC to inquire into and report on, among other things, ‘the law, practice and management of discovery of documents in litigation before federal courts’ and the questions of the overuse and expense of discovery.[1] The Terms of Reference also direct the ALRC to have regard to ‘the sufficiency, clarity and enforceability of obligations on practitioners and parties to identify relevant material as part of the discovery process as early as possible’. The ethical and professional 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. Such obligations have a role to play in limiting the overuse, and reducing the cost, of discovery. Accordingly, this chapter considers the ethical and professional obligations of lawyers in the context of discovery.

4.2 The first part of this chapter outlines the key sources of legal ethical obligations in Australia and provides an illustrative overview of the nature and extent of several key forms of potential discovery abuse and misconduct, including identifying the key legal ethical obligations such conduct may contravene. It also outlines the current professional and court imposed disciplinary structures and mechanisms in place to enforce those obligations.

4.3 The second part discusses the overarching issues that arise with respect to legal ethical obligations and misconduct in the context of discovery, including: lack of awareness about, and the broad nature of, legal ethical obligations; the limited application of such obligations; and difficulties in enforcement. This part also includes a brief examination of the role and nature of legal obligations in a changing legal environment, in particular in the context of electronic discovery and the applicability of obligations outside traditional courtroom processes.

4.4 The final part of the chapter examines existing educational requirements in relation to the legal ethical obligations owed by lawyers and proposes a new approach to the education of lawyers in this area.

Legal ethical obligations

4.5 The preceding chapters discuss legal obligations imposed on parties to litigation by disclosure requirements or court orders for discovery, procedures prescribed to determine the extent of those discovery obligations, and the practices employed to discharge them.

4.6 At the same time, lawyers owe a series of concurrent legal ethical obligations to the administration of justice, including the court, their clients and other lawyers. This framework of legal ethical obligations may be characterised as a ‘duty matrix’,[2] and is the focus of this chapter.

4.7 The ethical and legal rules relating to discovery practice are not mutually exclusive, and the ‘ethical’ rules are no less important than the ‘legal’ rules. As Professor Gino Dal Pont has indicated:

the phrase ‘legal ethics’... is an oxymoron to the extent that ‘legal’ implies mandatory laws, whereas ‘ethics’ for many connotes discretionary rules. In this latter sense, some use the term ‘ethics’ to distinguish rules that are professionally binding on a lawyer (ethical rules) from rules that are legally binding (legal rules). But such a practice conveys the incorrect impression that the ethical and legal rules are mutually exclusive, and that legal rules are more important than ethical rules.[3]

4.8 To reflect this, the ALRC refers to the duties discussed in this chapter as ‘legal ethical obligations’. That said, the distinction can be useful, and so this chapter considers 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 crucially, the enforcement mechanisms—are also more clearly directed to lawyers, as opposed to other parties, than the other legal rules discussed earlier.

4.9 The nature and practical effect of these obligations on the behaviour of legal practitioners has evolved over time, which in part reflects the increasingly diverse practice of law and the evolution of the Australian legal system. For example, the growth of in-house legal counsel; the public listing of law firms; the rise of multidisciplinary firms; and the increasing role played by litigation funders may be seen to have ‘muddied’ the legal ethical waters.

[1] See the Terms of Reference at the front of this Consultation Paper.

[2]A Lamb and J Littrich, Lawyers in Australia (2007), 185.

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