How the legal profession will change as a result of the Lawyer X inquiry
In considering the extent of breaches committed by former barrister Nicola Gobbo, the Lawyer X inquiry has recommended major changes to the legal profession to alter how lawyers manage client relationships and ensure the misconduct does not repeat itself.
In the final report into the Royal Commission into the Management of Police Informants (RCMPI), commissioner Margaret McMurdo has condemned Ms Gobbo’s misconduct as “inexcusable” and issued a warning to lawyers to fully understand their duties to the profession and ensure that they are upholding legal standards at all times.
“When lawyers deliberately betray their client’s trust or act in ways contrary to a client’s interests, it can have a devastating impact on the client. It is also, as this inquiry shows, apt to undermine integrity of the criminal justice system and a public confidence in the legal profession,” Commissioner McMurdo warned in part one of four of the final report.
Commissioner McMurdo said regulation within the profession exists to protect both the consumer and public and to support the proper administration of justice. Elements in legal standards exist to ensure lawyers are reaching ethical benchmarks and a failure to do so harms the whole of the profession and diminishes public trust in the vital work.
Due to limits of the commission’s terms of reference, it was not able to conduct a whole-of-profession review. However, it has focused on the specific aspects of the profession that supports ethical conduct of lawyers and has made a number of recommendations.
“While Victoria’s legal profession regulatory framework has changed significantly since Ms Gobbo practised as a lawyer, there is scope to further strengthen aspects of it,” the final report set out.
“It is important that lawyers fully understand the duty of confidentiality they owe to their clients and their responsibility to maintain professional boundaries. It is then beneficial to clarify and harmonise these aspects of the conduct rules.”
Starting at legal ethics education, Commissioner McMurdo has recommended that the inclusion of practical and scenario-based learning – both at the university level and continuing professional development – would support lawyers to understand what the common ethical issues that can arise are and how to manage them. Strengthening awareness of and access to ethical supports is also important, the commissioner said.
She has also recommended reforms to strengthen the rigour of the admission process and support access to independent legal representation for people in custody.
When it comes to complaints made about lawyers, Commissioner McMurdo suggested that the Victorian Legal Services Commissioner holds sole responsibility for complaints, so that there is a “single, consistent, independent approach” to their management.
Commissioner McMurdo said that while the current Victorian model – to delegate parts of its power to the Victorian Bar – has benefits, it runs the risk of public perception that the model “lacks independence, given the Victorian Bar is to advocate on behalf of all its members”. The change would recognise the importance of public confidence.
In a statement, Victorian Bar president Christopher Blanden QC said it supports these recommendations and will be working closely with the Victorian Legal Services Board, and the Board’s commissioner, to implement the changes as they apply to barristers.
“The commissioner’s robust investigation of these serious matters and implementation of recommendations in the report will enable the justice sector to move forward,” noted Mr Blanden, adding: “These findings of the royal commission should strengthen public confidence in integrity of the administration of justice and those upholding it.”
The commission also considered benefits and risks of having mandatory requirements for lawyers to report the misconduct of their peers and came to the conclusion that the introduction of this reporting may “deter misconduct by lawyers, encourage adherence to high ethical standards” and “strengthen confidence in the profession. On top of that, it would bring the legal profession in line with others with these kinds of requirements.
Finally, in light of the events that led to the inquiry, Commissioner McMurdo suggested the legal profession regulators and professional associations work together to develop communications material for the public on lawyers’ professional and ethical obligations with the aim of restoring and maintaining confidence in the profession and justice system.
Law Institute of Victoria (LIV) president Sam Pandya said it may take years to recover from the actions of Victoria Police and Ms Gobbo and that the Law Institute would work to implement the recommendations in the final report to support recuperation.
“We have always held that it is never appropriate to use a lawyer as a human source, and it is a clear breach of their ethical obligations to the courts and their clients,” he said.
Related articles on the final report:
- Lawyer X report: RCMPI recommends DPP examine Gobbo’s potential criminal conduct
- Nicola Gobbo’s conduct ‘duplicitous, inexcusable’, final report finds