Legal education

4.214 Education is vital to ensuring lawyers are aware of their legal ethical obligations and are able to consider and apply their obligations in practice. It also plays a key role in shaping legal culture.

4.215 Clearly then it is important that good discovery practice—grounded in consideration of legal ethical obligations—is incorporated into legal education at a university level, through the practical legal training that Australian lawyers must undertake before they may be admitted to practice, and in continuing legal education.[171]

Academic qualifications

4.216 In all Australian jurisdictions, admission to practise as a lawyer requires the study of 11 areas of knowledge (known as the ‘Priestley Eleven’).[172] These are the core subjects studied by law students in Australia.

4.217 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’.[173]

4.218 Legal ethics is also taught at universities. For example, in NSW, law students must study:

Professional and personal conduct in respect of practitioner’s duty:

(a) to the law;

(b) to the Courts;

(c) to clients, including basic knowledge of the principles of trust accounting; and

(d) to fellow practitioners.[174]

4.219 To the ALRC’s knowledge, ethics classes in Australian law schools do not routinely consider ethical discovery practice. Exceptions to this appear to be the content of a course called ‘Dispute Resolution and Ethics’ offered at the University of Adelaide, and parts of civil procedure and litigation subjects at the Australian National University and the University of Sydney which appear to include teaching focused on practical examples. The ALRC welcomes submissions that identify other courses or subjects that consider legal ethical obligations in the context of discovery.

Practical legal training

4.220 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.

4.221 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 practice’ and ‘ethics and professional responsibility’.[175]

4.222 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’.[176] 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.[177]

4.223 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.[178]

Continuing legal education

4.224 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.

4.225 In October 2007, the National Continuing Professional Development Taskforce issued a set of national CLE Guidelines,[179] which arose in part ‘from a concern that legal practitioners were not receiving sufficient ongoing education in legal and practical ethics and professionalism’.[180]

4.226 The Guidelines recommend that practitioners be required to complete ten units[181] of CPD 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;[182] and
  • substantive law (in some jurisdictions).[183]

4.227 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’.[184]

4.228 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.[185]

4.229 New South Wales, Queensland, Victoria and the ACT have either adopted the guidelines, or substantially based their scheme on the guidelines.[186] Western Australia also requires practitioners to complete courses on ethics and professional responsibility, and legal skills and practice.[187]

4.230 Barristers in the ACT must also complete activities in ‘ethics and regulation of the profession’; and in substantive law and professional skills.[188]

4.231 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.[189]

4.232 General legal ethics courses are common.[190] However, few CPD or CLE courses specifically cover ethical obligations in the context of discovery.[191]

Guidance from legal professional associations

4.233 Guidance from legal professional associations—in particular, state and territory bar associations and law societies—also plays a role in legal education. Where such guidance exists, it may be given in the form of individualised responses to inquiries,[192] published ethics committee rulings,[193] or online collections of articles and advice on certain topics.[194]

4.234 Earlier in the chapter, the ALRC proposed that the Law Council and law societies and bar associations in each state and territory develop commentary as part of, or as a supplement to, the professional conduct rules with a particular focus on the legal ethical obligations of lawyers in relation to discovery.[195] Such commentary would also play an important role in educating lawyers about their legal ethical obligations.

4.235 Finally, legal professional associations also maintain a register of disciplinary actions open for public inspection, the availability and content of which serves an important educative function.[196]

Legal education: issues arising

4.236 There are concerns that current legal education with respect to legal ethical obligations often ‘does not equip ... lawyers to know how to put ethics into action in real-life ... contexts, or even to recognise ethical issues when they arise’.[197] Such commentary highlights that it is important for legal ethical obligations to be taught using a range of teaching methods that encompass their practical application, including through case studies and skills courses.

4.237 Significant decisions about discovery in civil litigation before federal courts are likely to be made by experienced lawyers. If education is to play a significant role in improving discovery practice, particularly in the short to medium term, it is likely to be through CLE undertaken by practising lawyers who work in litigation and understand the real conflicts and difficulties that parties face in obtaining and disclosing relevant documentary evidence.

4.238 This may require that providers of CLE pay particular attention to the ethical discovery practices in relevant programs, such as those concerning civil litigation, ethics and management and consider the development of subjects specifically addressing ethical discovery practices.

4.239 Another way to educate practising lawyers in ethical discovery practices may be for all legal professional associations to issue ‘best practice’ notes about the legal and ethical responsibilities of lawyers with respect to discovery. These practice notes would ideally be updated regularly to respond to practitioners’ questions or evolving technological developments.

4.240 Ongoing legal professional education about legal ethical obligations generally, as well as those concerning discovery, may be essential to fostering professional integrity, as in order to act consistently with such obligations lawyers must have ‘current knowledge and awareness of the ethical framework within which they practice’.[198]

ALRC’s views

4.241 In the ALRC’s preliminary view, the study of a lawyer’s legal and ethical duties in relation to discovery should be incorporated, or expanded upon, in existing university curricula, through practical legal training, and in programs that form part of a lawyer’s continuing legal education.

4.242 Admission rules across jurisdictions appear suitably broad and therefore should not need to be changed in order for universities and other providers of legal education to pay closer attention to ethical discovery practice.

4.243 In the ALRC’s view, though the topic might 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.

Question 4–23 Are law students and lawyers studying the legal and ethical responsibilities of lawyers with respect to discovery? If so, is existing training and education sufficient?

Question 4–24 How should law students and lawyers be trained in the legal and ethical responsibilities of lawyers with respect to discovery?

Question 4–25 Is discovery abuse and misconduct likely to be reduced in practice if law students and lawyers are provided with more education about the legal and ethical responsibilities of lawyers with respect to discovery?

Proposal 4–4 Providers of legal education should give appropriate attention to the legal and ethical responsibilities of lawyers in relation to the discovery of documents in existing and proposed civil litigation, case management and ethics subjects that form part of:

  1. law degrees, particularly those required for admission to practice as a solicitor or barrister;
  2. practical legal training required for admission to practice as a solicitor or barrister; and
  3. continuing legal education programs, including those required for obtaining and maintaining a practising certificate.

Proposal 4–5 Legal professional bodies should issue to their members ‘best practice’ notes about the legal ethical obligations of lawyers with respect to discovery.

 

 

 

[171] Judicial education in discovery is discussed in ch 3.

[172] In NSW for example, these subject are set out in the Legal Profession Admission Rules 2005 (NSW) r 95(1)(b), sch 5. The Draft National Rules propose that approved areas of academic knowledge continue to reflect the Law Admissions Consultative Committee’s prescribed areas of knowledge, and that the list of recognised tertiary academic courses continue to reflect existing recognised academic courses: National Legal Profession Reform Project, Legal Profession National Rules: Consultation Draft (2010), ch 3, schs 1, 2.

[173]Legal Profession Admission Rules 2005 (NSW), sch 5.

[174]Ibid, sch 5.

[175]Ibid, sch 6. The Draft National Rules propose that the competency standards for entry level lawyers reflect the Law Admissions Consultative Committee’s existing competency standards and that the list of recognised courses of study also reflect the existing recognised practical legal training courses: National Legal Profession Reform Project, Legal Profession National Rules: Consultation Draft (2010), ch 3, schs 3, 4.

[176]Legal Profession Admission Rules 2005 (NSW), sch 6.

[177]Ibid, sch 6, Civil Practice, Explanatory Note.

[178]Ibid, sch 6, Ethics and Professional Responsibility.

[179]National Continuing Professional Development Taskforce, A Model Continuing Professional Development Scheme for Australian Lawyers (2007), [3.5].

[180]S Mark, Competing Duties: Ethical Dilemmas in Practice (presentation to Newcastle Law Society, 19 October 2009).

[181] In some jurisdictions the current requirement is completion of seven units, which will increase to ten units for practising certificates commencing on or after 1 July 2011: ACT Law Society, A Continuing Professional Development Scheme for Canberra’s Solicitors (MCPD Guidelines).

[182]National Continuing Professional Development Taskforce, A Model Continuing Professional Development Scheme for Australian Lawyers (2007), [3.5].

[183] See, eg, Law Institute of Victoria, Continuing Professional Development Rules (2008) r 5.2; Legal Profession Rules 2009 (WA) pt 2, div 2, r 10(2)–(4). Note, the Draft National Rules also propose that Australian legal practitioners must complete 10 CPD units of CPD activity each year including one unit relating to each of these first three core areas: practical legal ethics, practice management and business skills, and professional skills: National Legal Profession Reform Project, Legal Profession National Rules: Consultation Draft (2010), ch 11.

[184]National Continuing Professional Development Taskforce, A Model Continuing Professional Development Scheme for Australian Lawyers (2007), 7.

[185] See, eg, Law Institute of Victoria, Continuing Professional Development Rules (2008) r 5.2.

[186]Professional Conduct and Practice Rules 1995 (NSW) r 42.1.6; Law Institute of Victoria, Continuing Professional Development Rules (2008) r 5.2; Queensland Law Society Administration Rule 1995 (Qld) r 47(4); ACT Law Society, A Continuing Professional Development Scheme for Canberra’s Solicitors (MCPD Guidelines).

[187]Legal Profession Rules 2009 (WA) r 10. The Northern Territory has mandatory CPD requirements, but does not mandate the study of ethics: Legal Profession Regulations 2007 (NT) sch 2, reg 5.

[188]Legal Profession (Barristers) Rules 2008 (ACT) r 113; Australian Capital Territory Bar Association, Continuing Professional Development <www.actbar.com.au/> at 28 October 2010.

[189]Legal Profession Regulations 2007 (NT) sch 2, pt 2, div 1, r 2(2).

[190] See, eg, College of Law (NSW), Rule 42: Ethics & Professional Responsibility; Practice Management & Business Skills; and Professional Skills [Face to Face Seminar] (2010) <www.collaw.edu.au/> at 1 November 2010.

[191] See, eg, Legalwise Seminars, Legal Skills and Legal Ethics for All Lawyers [seminar] (2010) <www.legalwiseseminars.com.au/> at 30 September 2010.

[192] See, eg, New South Wales Bar Association, Urgent Ethical Guidance for Members <www.nswbar.asn.au/> at 25 October 2010; Queensland Law Society, Queensland Law Society Ethics Centre <www.qls.com.au/> at 1 November 2010; Bar Association of Queensland, From the President: Ethical Enquiries—Ethical Counsellors <www.qldbar.asn.au/> at 25 October 2010.

[193] See, eg, Law Institute of Victoria Ethics Committee, Ethics Committee Rulings <www.liv.asn.au/> at 1 November 2010.

[194] See, eg, Queensland Law Society, Ethics FAQs <http://ethics.qls.com.au/faq> at 1 November 2010; Law Society of South Australia, Professional Standards: Ethics and Professional Responsibility <www.lawsocietysa.asn.au/> at 1 November 2010; Law Institute of Victoria Ethics Committee, Ethics Resources <www.liv.asn.au/> at 1 November 2010.

[195] Proposal 4–1.

[196]Legal Profession Act 2004 (NSW) s 577; Legal Profession Act 2007 (Qld) s 472; Legal Profession Act 2007 (Tas) s 497; Legal Profession Act 2004 (Vic) ss 4.4.26, 4.4.27; Legal Profession Act 2008 (WA) s 452; Legal Profession Act 2006 (ACT) s 448; Legal Profession Act 2006 (NT) s 541.

[197]C Parker and A Evans, Inside Lawyers’ Ethics (2007), 217.

[198]S Mark, Competing Duties: Ethical Dilemmas in Practice (presentation to Newcastle Law Society, 19 October 2009).