Sources of legal ethical obligations

4.10 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’.[4]

4.11 As outlined above, the focus of this Inquiry is on discovery in the context of the federal civil justice system. However, to the extent that lawyers practising in the federal system are subject to regulation at a state and territory level, this chapter necessarily considers sources of obligations under state and territory legislation and professional rules.[5]

4.12 Of particular relevance in this context is that, in early 2009 the Council of Australian Governments (COAG) embarked on a project to nationalise regulation of the legal profession in Australia, referred to as the National Legal Profession Reform Project. 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’.[6] In April 2010 a consultation package was released, which included a draft Legal Profession National Law (Draft National Law) and accompanying draft Legal Profession National Rules (Draft National Rules).[7] At the time of writing a three-month public consultation period on the consultation package had closed and the Taskforce was considering submissions received.

4.13 While the obligations articulated and imposed by substantive legislation and rules provide an important framework on a professional level, the ethical practice of law also involves lawyers deciding ‘on a personal level ... what the rules mean, how to obey them [and] what to do when there are gaps or conflicts in the rules’.[8] This issue is addressed further with respect to approaches to the education of lawyers about legal ethical obligations.

General law

4.14 General law—in particular the law of contract, torts and equity—governs ‘most incidents of lawyers’ relationships with their clients, the court and third parties’.[9] For example, a lawyer’s duty to their client arises in the context of the lawyer–client relationship, which is essentially a contractual relationship. Also arising in the context of that relationship is the lawyer’s duty of care arising in tort and of confidentiality arising in equity.[10]

4.15 Further, while statute and rules largely govern the discovery process, ‘the substantive right to discovery still exists as a principle of equity ... and recourse is had to equity where the rules are silent’.[11]

4.16 However, to the extent that the key obligations relevant to the discovery context arise from statute and professional rules, the focus of this chapter is on those sources of legal ethical obligations, rather than general law duties.

Statute and delegated legislation

4.17 There are several statutory sources of legal ethical obligations in Australia, including: the legal profession and civil procedure legislation in each jurisdiction; model laws; and other specific pieces of legislation.

4.18 The legal profession legislation in each jurisdiction outlines general requirements for engaging in legal practice and obligations with respect to trust accounting and costs, as well as establishing regulatory bodies and processes for handling complaints against, and the discipline of, practitioners in the jurisdiction.[12]

4.19 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 of Australia (Law Council).[13] The Model Laws were initially released in 2004 and revised in July 2006.

4.20 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.[14]

4.21 The core provisions of the Model Laws and the Model Regulations that are of relevance to this Inquiry relate to standards for legal education, definitions of misconduct, costs disclosures and the regulation of legal practices.

4.22 In addition, as part of the National Legal Profession Reform Project, COAG, with the support of the Australian Government Attorney-General, released the Draft National Law and accompanying Draft National Rules. The Draft National Law encompasses those areas currently dealt with in legal profession legislation in each jurisdiction.[15]

4.23 There is also civil procedure legislation in some jurisdictions which regulates the conduct of participants in civil litigation and includes several provisions of relevance to the discovery process.[16] For example, the Civil Procedure Act 2010 (Vic) implemented a series of recommendations from the Victorian Law Reform Commission’s (VLRC) Civil Justice Review to improve the standard of conduct of participants in civil litigation and reduce costs and delay, including several measures applicable to discovery.[17] Of particular relevance to this Inquiry are the ‘overarching obligations’—the content and effect of which are discussed later in this chapter— imposed by the Civil Procedure Act on all parties to litigation and their legal representatives.

4.24 The statutory sources of legal ethical obligations outlined above are augmented by obligations—both legal and ethical—imposed by other specific pieces of legislation. These are discussed in this chapter only to the extent that they impose legal ethical obligations, rather than practice-directed obligations. For example, these include:

  • the obligation to act,[18] and assist their clients to act,[19] consistently with the overarching purpose of the Federal Court of Australia Act 1976 (Cth).[20] There is a similar obligation under various other pieces of legislation;[21] and

  • the obligation not to proceed unless there are reasonable prospects of success under legislation introduced to consolidate tort law and procedural changes in civil actions to encourage quicker and cheaper resolution of civil disputes.[22]

4.25 Finally, the Legal Services Directions 2005 (Cth) are a set of binding rules issued under s 55ZF of the Judiciary Act 1903 (Cth) by the Attorney-General 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.[23]

Professional rules

4.26 In Australia, the legal profession is essentially regulated on a state and territory basis. Traditionally, the legal profession was divided into solicitors and barristers. In many jurisdictions, the profession is now combined—either formally, or in practice. For most purposes, however, solicitors and barristers are regulated separately by professional bodies such as law societies and bar associations. Legal profession rules are binding on Australian legal practitioners and Australian-registered foreign lawyers to whom they apply.[24]

4.27 As is the case with legal profession legislation, while there are no national professional conduct rules in force, the professional conduct rules that apply to Australian legal practitioners are now largely uniform. Most jurisdictions have now adopted some form of the Law Council’s Model Rules of Professional Conduct and Practice (Model Rules)[25] developed in 2002.[26]

4.28 In line with a recommendation made by the ALRC in Managing Justice—A Review of the Federal Civil Justice System (ALRC Report 89)[27] 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).[28] At the time of writing, public consultation on these rules had closed and the Law Council and ABA were considering submissions received.

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

[5] 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.

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

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

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

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

[10] See discussion below in relation to civil liability laws which have consolidated tort law.

[11]B Cairns, Australian Civil Procedure (8th ed, 2009), 336.

[12]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).

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

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

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

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

[17]Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008). The reforms will take effect on 1 January 2011.

[18]Federal Court of Australia Act 1976 (Cth) s 37N(1).

[19]Ibid s 37N(2).

[20]Ibid s 37M. The overarching purpose provisions took effect on 1 January 2010.

[21] See, eg, Family Law Rules 2004 (Cth) rr 1.04, 1.08(1); Civil Procedure Act 2005 (NSW) s 56; Uniform Civil Procedure Rules 1999 (Qld) r 5(1); Civil Procedure Act 2005 (ACT) s 56(1). See: J Spigelman, ‘Just, Quick and Cheap: A New Standard for Civil Procedure’ (2000) Special Edition 6 Bar Brief Note also that the Civil Dispute Resolution Bill 2010 (Cth), which was being considered by the Senate Legal and Constitutional Affairs Legislation Committee due to report on 22 November 2010, includes a similar overarching purpose clause.

[22] See, eg, Civil Law (Wrongs) Act 2002 (ACT) ss 186–190.

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

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

[25]Law Council of Australia, Model Rules of Professional Conduct and Practice (2002).

[26] 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 Western Australian and Tasmanian rules have yet to follow: Legal Profession Rules 2009 (WA); Rules of Practice 1994 (Tas), however the ALRC understands that Western Australia is currently in the process of revising its professional conduct rules and has previously indicated it will adopt the Model Rules following the current revision by the Law Council and Australian Bar Association: Draft Professional Conduct Rules 2010 (WA).

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

[28]Law Council of Australia, Legal Profession National Rules: Solicitors’ Rules (2010); Australian Bar Association, Legal Profession National Rules: Barristers’ Rules (2010).