Ethical Issues for Government Lawyers

Gregory Ross Partner

Ethics & Professional

Responsibility

23 March 2016

Ethical Issues for Government Lawyers

Sources

Overlayer

Consistency and Primacy

Defining Good, Independent Advice

Understanding Confidentiality

Managing Conflicts

Understanding Model Litigant Principles

Ethical Issues for Government Lawyers The Maze

Lawyer Laws Public Sector Rules

Legal Profession Uniform Law Legal Profession Uniform Law Application Act Legal Profession Uniform Regulation 2015 Legal Profession Uniform Law Application Regulation 2015 Legal Profession Uniform General Rules 2015 :-

Admission Rules 2015 Australian Solicitors Conduct Rules 2015 Legal Practice (Solicitors) Rules 2015 Continuing Professional Development (Solicitors Rules 2015)

Public Sector Employment Act Public Sector Codes of Conduct Public Sector Governance Issues

Ethical Issues for Government Lawyers Base Provisions

• Legal Profession Uniform Law (Victoria)

• Legal Profession Uniform Law Application Act

• Legal Profession Uniform Regulation 2015

• Legal Profession Uniform Law Application Regulation 2015

• Legal Profession Uniform General Rules 2015:- – Admission Rules 2015

– Australian Solicitors Conduct Rules 2015

– Legal Practice (Solicitors) Rules 2015

– Continuing Professional Development (Solicitors Rules 2015)

Ethical Issues for Government Lawyers Some Overlayer Issues

• Public Sector Employment Act

• Public Sector Codes of Conduct

• Public Sector Governance Issues

• Oversight Agencies and the Media

Ethical Issues for Government Lawyers Defining Good, Independent Advice

• Who is the client

• The Crown/the State/the Authority/the Minister/the Departmental Secretary/the CEO/the Rest

• Objective Practical Advice v Unduly Facilitative Advice

Ethical Issues for Government Lawyers Understanding Confidentiality

• General lawyer confidentiality

• Confidentiality Agreement Obligations

• Confidentiality Obligations – Legal e.g. Privacy Laws

Ethical Issues for Government Lawyers Managing Conflicts

• Internal to Agency

• Cluster Conflict– rare but possible

Ethical Issues for Government Lawyers Understanding Model Litigant Principles 1

Civil, All Courts Tribunals Enquiries and Arbitration Including ADR

? Curially Enforced

Subject to internal guidelines and Premier's Memoranda

More than acting honestly and consistently with core rules and beyond normal lawyer ethical obligations but to do with complete propriety, fairness and acting in accordance with highest professional standards

Ethical Issues for Government Lawyers Understanding Model Litigant Principles 2

Promptness and avoiding unnecessary delay Paying legitimate claims without litigation where

clear liability exists Consistent handling of claims Avoid cost of litigation where possible including

usable tentative dispute solution Minimise costs by not requiring other party to

prove things known to be true and not contesting liability where the state or agency knows the issue is really about quantum

Ethical Issues for Government Lawyers Understanding Model Litigant Principles 3

Don't disadvantage claimants lacking resources to litigate claim

Avoid technical defences without good cause

Don't prosecute appeal without reasonable prospect of success

Does not prevent legitimate steps to be taken in pursuing litigation and testing or defending claims

Ethical Issues for Government Lawyers Understanding Model Litigant Principles 5

Does not prevent: –

Recovery of costs and enforcing costs orders;

Relying on Legal Professional Privilege or other privilege including Public Interest Immunity;

Pleading limitation periods;

Seeking security for costs;

Opposing unreasonable repressive claims or processes;

Requiring opposing litigants to comply with procedural obligations;

Moving to strike out untenable claims or proceedings.

Ethical Issues for Government Lawyers Some Links

• www.lawsociety.com.au/ForSolicitors/professionalstandards/ruleslegislation/

index.htm

• http://www.justice.nsw.gov.au/legal-services-

coordination/Documents/cabinetapp-mlp.pdf

• http://arp.nsw.gov.au/m2009-17-briefing-senior-counsel

• http://www.justice.nsw.gov.au/legal-services-

coordination/Documents/cabinetapp-ebp.pdf

• https://www.comlaw.gov.au/Details/F2012C00691

• http://www.justice.nsw.gov.au/legal-services-

coordination/Documents/cabinetapp-mlp.pdf

• © Eakin McCaffery Cox 2016 Presentation Gregory Ross

• Copyright and contribution Notice

• This work is copyright and except as permitted under the Copyright Act (Australia) 1968 no part of it may be reproduced, stored or transmitted by any electronic or other process without the prior written permission of the copyright owners.

• The author acknowledges the contribution by Debbie Tran, Solicitor, of Eakin McCaffery Cox to the content of this paper.

• Limited permission • The authors and copyright owners grant to the Legalwise and those attending its seminar of 16 June2015 a limited, free, non-exclusive, perpetual

right to copy or reproduce this work for personal or in-house training purposes, on the conditions that it: • Attributes the source of the work • Reproduces the above copyright notice on any partial or full copy of this work • Does not edit or alter the work in a manner that renders any of the information in it incorrect or misleading or derogates from the integrity of the

work.

• Disclaimer • This work was prepared for the presentation of a seminar and is intended to provide a broad overview about the topics covered.

• Neither it nor the ensuing discussion are intended, and must not to be relied upon, as legal advice. While the authors have made every effort to

ensure the information in this work is up to date and accurate, they do not accept any responsibility or liability for any errors or inaccuracies.

The Boring Bits