There was first the AMP fallout at the banking royal commission which raised the question of the proper role of in-house legal counsel. Their role has always been uniquely challenging, relative to external practitioners. The challenge principally arises from the rule that in-house counsel is, despite having a singular and paying employer, first an officer of the court and has an overriding duty to the court. This duty overrides the duty to the employer.

As such, a degree of independence and autonomy from the employer is necessary to discharge these non-negotiables. Oftentimes, these are embraced in principle but rarely implemented to its required extent. Therein lies the challenge for them.

Of a more serious, urgent and contentious nature however, is the role of a criminal defence barrister. Acting for George Pell, Robert Richter QC made various statements during Pell’s plea hearing including that Pell’s offences were “no more than a plain vanilla sexual penetration case where the child is not volunteering or actively participating.” Reflected Richter: “[i]n seeking to mitigate sentence I used a wholly inappropriate phrase for which I apologise profusely to all who interpreted it in a way it was never intended.”

If he apologised out of personal reflection, this is proper and honourable. If he did so as a response to public outcry, this is problematic. It is widely accepted in the legal fraternity that the role of a defence lawyer is to zealously represent their client without fear, favour or prejudice.

Contrary to popular understanding, their role is not to “get people off”, but to test the state’s evidence and ensure that the state has proven their allegations beyond a reasonable doubt. Thus, every person charged with a criminal offence has the right to legal representation to ensure that takes place.

The alternative is arbitrary arrests, convictions and imprisonment. Not even the critics would find this acceptable. Yet there are those in society who share the view held by the bystander in the Pell case who yelled at Richter “what’s it like defending a rat?”. They represent the uninformed and ignorant segment of society. The expectations of Victorian barristers under the barrister’s rules is to “accept briefs to appear regardless of their personal beliefs”.

There is a deeper phenomenon emerging. As a larger number of emotionally-charged cases are tried through the courts with greater prominence than in the past (such as sexual and child abuse) and more royal commissions are issued (such as into Aged Care Quality and Safety, and another into Management of Police Informants and potentially into disability abuse) and the potential for mass litigation arising from them, the role of a lawyer will come under sharper scrutiny and increased pressure from politically-correct snowflakes of society fundamentally incapable of maturely respecting the role of a lawyer or even differing or opposing viewpoints, but rather resorting to intimidation of, in the target audience here, the lawyers, specifically, defence barristers.

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It is imperative that these lawyers remain focused on the task at hand and operate under the canopy of their “paramount duty to the administration of justice”. They “must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person”.

In doing so, however, they must also not “engage in conduct which is likely to diminish public confidence in the legal profession”. That does not require lawyers, representing their clients before the courts or royal commissions, to be and nor must they ever be the delivery agents of social policy, spokespeople for political correctness or mouthpieces of the public. Nor must they be accountable to the public. That is the primary province of the legislature and the executive.

Lawyers are the spinal cord of the rule of law. But their slippery situation makes it necessary for them, led by their professional bodies and their regulators, to seize the opportunity to publicly re-emphasise their roles and recalibrate society’s expectations of them.

Nilay B. Patel is a Melbourne lawyer.