Speaking at the Australian Corporate Lawyers Association (ACLA) national conference in Sydney today, Federal Attorney-General Philip Ruddock urged lawyers to remember they are not masters, but servants of the law.
A corporate lawyer once joked that, on the rare occasions he visited a court, he felt like a lapsed Catholic going to Church. Like a lapsed Catholic, a corporate lawyer will receive less exposure to stern admonitions to observe the rules of the Order.
Yet, as Lord Denning observed of in-house counsel: “The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties as officers of the court”.
I am not here to deliver a sermon. But I think it is pertinent to reflect on the importance of traditional legal ethics.
I use the word ‘traditional’ because, in recent times, the concept of ethical legal practice has become infected with a new and, in my view, unappealing interpretation.
This ‘modern’ ethical view, which prioritises social and political considerations above the lawyer’s duty to the client, provides little guidance to lawyers when faced with the practical ethical dilemmas that confront them in day to day practice.
It muddies the responsibilities of lawyers and ultimately undermines their professional legitimacy.
Traditional View of Legal Ethics
The traditional view of legal ethics revolves around a practitioner’s responsibilities: to the law, to the court or tribunal, to fellow practitioners and to the client. A practitioner’s duty to the law consists of a duty to uphold and obey it, in both a professional and a personal capacity. A practitioner’s duty to the court requires the practitioner to display honesty, integrity and candour, and to discharge all duties owed to courts and tribunals.
Practitioners also owe their clients a duty to exercise due skill and diligence, to maintain their obligations of confidentiality and to avoid conflicts of interest. Finally, practitioners owe a duty to fellow practitioners to deal with them in an honest and professional manner.
Ultimately, as Sir Gerard Brennan said: “Ethics are not what the barrister knows he or she should do: ethics are what the barrister does”.
In that spirit, it is more meaningful for me to bring to mind one of the most revered lawyers in popular fiction, Atticus Finch from Harper Lee’s novel, To Kill a Mockingbird.
In keeping with the cab rank rule, he took on an unpopular client, whom no one else wanted to represent, and defended him against accusations of a heinous crime which evoked community outrage.
Having taken that client on, and in the face of great public hostility and social ostracism, he did not yield to the pressure to soften his defence.
Instead, he represented his client to the best of his abilities and in accordance with the law. In doing so, he fulfilled not only his duties to his client, but still more importantly to the court and the law. It is important to note that, in pursuing his noble course of action, Atticus Finch was not fighting to overturn the law. He was fighting to uphold it.
The ‘New’ Legal Ethics
No one, I imagine, would question my assertion that the character of Atticus Finch embodies the finest traditions of the profession. Yet these traditions are being polluted with a cruder and, in my view, misconceived view of legal professional ethics.
This view sees the mere representation of the client, within the constraints of traditional duties to the law and the court, as an insufficiently grand role for the lawyer. Instead, it holds the lawyer responsible for effecting broader social and political change.
In a recent speech to the Australian Women Lawyers’ Conference, the Shadow Attorney-General, Nicola Roxon, said “[t]he whole business of law is actually not based around service to a client”.
I contrast the Shadow Attorney-General’s view with that of Geoffrey Robertson QC, who said “there can be no greater honour than representing a man in his personal affairs”.
Similarly, those of you here today have the honour of representing Australia’s great companies, which form the backbone of Australia’s economy and provide jobs for thousands of Australians.
The time-honoured traditional ethics to which I have referred provide lawyers with practical guidance in the conduct of their professional affairs. The lawyers conduct is directed to advancing the interests of the client, within the confines set by the overriding duties to the law, the court and fellow practitioners.
For instance, if the client seeks advice on how to minimise tax legally, the lawyer’s duty to the client dictates that such advice should be given. If the client seeks advice on how to avoid tax unlawfully, the lawyer’s duty to the court and the law dictates that such advice may not be given.
But stripped of the basic duty to the client, professional ethics cease to provide this clarity of guidance. For in the absence of the client’s interests, the lawyer has only his or her own interests and prejudices as a basis for determining where to go within the broad field of action permitted by duties to law and court.
Perhaps the lawyer should not seek to minimise the client’s tax, on the basis that tax revenue funds useful services. Perhaps the lawyer should seek to minimise the client’s tax in the hope of a pay rise. It is the duty to the client that provides an answer.
Judging Lawyers by their Clients
Once legal practice becomes, in Ms Roxon’s words, “not actually based around service to a client”, the lawyer becomes tainted with the moral status of the client’s cause — for service of that cause is no longer a professional responsibility and is therefore a choice.
Those of you who represent the corporations that it is fashionable to condemn at dinner parties will know what I mean. You will have had the experience of telling a new acquaintance what you do, only to be greeted with the cry of, “How can you work for them?”
In her recent speech, the Shadow Attorney-General joined this chorus when she talked about “lawyers behaving badly”.
The examples she cited spanned the corporate and government sectors. They included, for example, “those denying freedom of information requests” and “the lawyers who thought up the … Pacific Solution”.
I am disturbed that the Shadow Attorney-General thinks it is “bad behaviour” for lawyers to provide advice on policies that were endorsed by the Australian people through the democratic process. This is to impugn the ethics of lawyers based not upon the propriety of their professional conduct, but upon the commentator’s approval of the client’s cause.
I believe it is a departure from the great tradition embodied by Atticus Finch, in which the very essence of legal ethics is to disregard the political incorrectness of the client’s cause, on the basis that everybody is entitled to bona fide legal advice and representation.
The duty of the lawyer is not to judge the client, but to represent the client, subject to the overriding duties to the court and the law. The lawyer is not accountable for the actions of the client, so long as those overriding duties have been observed.
Those duties require the lawyer to provide frank and fearless advice, and preclude the lawyer’s facilitation of unlawful activities. Subject to these significant qualifications, the lawyer is not to be visited with the sins of the client.
Indeed, it is interesting that the Shadow Attorney-General does not extend her philosophy into the field of criminal law. If she did, she would presumably condemn the legal representatives of terrorists and murderers as “lawyers behaving badly”.
Misdirection of Pro Bono Work
It is not only government and corporate legal work that is maligned by the ‘new’ interpretation of legal ethics. One of the noblest expressions of the profession’s traditional ethics is the performance of pro bono work.
I encourage all those present not to neglect this fundamental duty. Yet I am concerned that an increasing shade of moral vanity is colouring the performance of this duty.
For example, the decision of some lawyers to provide pro bono assistance to asylum seekers in appeals which are utterly without merit runs contrary to their professional duty to the court. The assumption of these practitioners is that it is appropriate to run hopeless proceedings in a bid to undermine laws with which they personally disagree.
In my view, such behaviour is the very antithesis of ethical legal conduct. It wastes the resources of the courts and falsely raises the expectations of the client. There is, of course, no shortage of potential clients in genuine need and with genuine cases, in disputes forced upon them rather than freely chosen — a disadvantaged citizen victimised by a loan shark, or an elderly pensioner seeking to fashion a will.
Yet many of these cases do not carry the same moral cachet as more politically fashionable areas of practice.
To borrow the more colloquial explanation of US writer PJ O’Rourke: “Everybody wants to save the world; nobody wants to help Mum do the dishes”.
Let me encourage all of you here to help Mum do the dishes. It may not draw accolades or win plaudits at dinner parties. But therein lies its true nobility.
Community Legal Centres
Similarly, I recently drew to public attention a examples of inappropriate expenditure of taxpayer funds by Community Legal Centres. Community Legal Centres play a valuable role in providing legal services to disadvantaged members of our community.
I was alerted to instances where taxpayer-funded resources were used to run blatant political campaigns on fashionable issues. I cannot help but wonder whether such incidents are the result of the growing confusion between the roles of lawyers and of social activists.
Organising targeted protests in the offices of marginal seat MPs is an activity more consistent with the role of undergraduate activist groups than with the traditional view of the lawyer’s role. Such activity diverts public resources away from the true function of community legal centres — to provide high quality legal services to disadvantaged members of the community. The Australian Government will therefore address this.
In accordance with the principles of accountability and financial probity, we will adopt a model for assessing the adequacy of funding for community legal centres that will focus on practical outcomes being delivered to clients.
There are many vigorous and dynamic pro bono programs being conducted by lawyers across Australia — including regional and remote areas. The very best of these do not necessarily pursue social cases of interest to the lawyers. They have a clear and practical focus on helping people in need.
Although not characteristically glamorous or high profile, this work gives ordinary Australians improved access to the benefits of our justice system.
The Political Process
This is not to say that lawyers should not take an active interest in issues of broad social policy, beyond the individual cases in which they are involved. Yet the law reflects the moral values of the whole community, as expressed through its democratically elected representatives.
Contributing to the political conversation that shapes our nation’s laws is the right, and indeed the duty, of every citizen.
However, such contributions must be made by lawyers in a personal capacity not a professional one. Our professional bodies have helped to blur this distinction.
For example, of the 28 media releases issued by the Law Council of Australia this year, 24 entered the political fray on topics of contention. Indeed, 8 were devoted to David Hicks, and a further 7 were addressed to attacking the either the Government’s proposed border protection changes or its customary law legislation. Not one related to the push to create a national legal profession.
For the nation’s peak professional body to have so little to say about the profession and so much to say about the politically fashionable issues du jour is surprising.
Do not misunderstand me: lawyers can and should participate in debate on these issues. But these are issues of personal political conviction, not professional solidarity.
In seeking to cast a ‘lawyers’ position’ on these political issues, the Law Council takes us further down the dangerous road towards the professional equivalent of imperial overreach.
There is an assumption by some lawyers that they are gifted with unique insights into the appropriate moral content of the law, insights which should take precedence over the popular will as expressed through the democratic process.
For example, Lex Lasry QC, in the 2006 Law Week Oration, argued that the role of lawyers is changing in just such a direction: “It is lawyers, particularly those concerned with the criminal law and other human rights issues, that must become more involved in the debate because it is lawyers who understand the consequences and the potential of the erosion of the individual freedoms we take for granted”.
Mr Lasry’s army of legal crusaders is to counteract “the ease with which frightened voters would be content to empower police forces and intelligence agencies in a way they could not previously have dreamed of”.
With respect, I think that most Australians are capable of determining for themselves the appropriate balance between their civil liberties and the very real need to protect the community from terrorism.
Consider also the following extracts from an address by Julian Burnside QC on the Government’s 2001 border protection laws: “Plainly, the Government understood that (with an election due shortly) a show of toughness against helpless refugees would be electorally popular amongst the large number of Australians who had responded positively to far-Right racist political programs … The struggle for justice fell onto the shoulders of a few lawyers with human rights concerns”.
The claim that an enlightened legal elite must lead a bewildered populace out of error strikes me as more than a little patronising. Indeed, this disdain for those outside the legal priesthood does little to raise the profession in the eyes of a nation disposed towards a robust egalitarianism.
Yet it is a disdain which pervades all too much of the commentary emerging from some sections of the profession.
I note in passing that occasionally, even the self-appointed guardians of our moral conscience turn out to have feet of clay.
Model Litigant Obligation
Practitioners like yourselves, who still serve clients, not causes, have many opportunities to demonstrate a commitment to traditional legal ethics. Adherence to these traditional ethics has benefits not only for clients but for the broader community.
A powerful way for in-house lawyers to assist their employers to be good corporate citizens is by urging compliance with the model litigant obligation that applies to government and its agencies. As many of you will know, this obligation requires the Government, when engaged in litigation, to act honestly and fairly, with complete propriety and in accordance with the highest professional standards.
It has never prevented the Commonwealth from acting firmly and properly to protect its interests. It does not preclude all legitimate steps from being taken to pursue claims by the Commonwealth. Nor does it preclude the Commonwealth testing or defending claims against it.
While it has its origins in the common law, the model litigant obligation is also codified for the Commonwealth in the Legal Services Directions 2005, which are rules about the purchase and use of legal services by the Australian Government.
These Directions are a legislative instrument, and compliance with them by Government departments and agencies is mandatory. This year I amended the Directions to require Government chief executives to annually certify their compliance, including the measures they take to ensure compliance and prevent breaches.
It is essential that the Government can be clearly recognised as a model litigant. And I see compelling reasons why the private sector should also act consistently with the model litigant principles — for example, by handling litigation in accordance with the rules set out in the Directions.
Doing so would enhance the reputation of Australia’s corporations, domestically and abroad. It would also assist in making litigation practice in Australia less adversarial and more cost effective for participants.
In addition, it would re-emphasise the traditional ethical values that should always be the first point of reference in guiding lawyers’ conduct.
In-house lawyers should therefore work within their corporations to raise awareness of the model litigant principles. They could be agents of change in the culture of corporate litigation.
In closing, let me express my gratitude to you for the work that you do as corporate lawyers. It may not attract the same approbation as working as a human rights lawyer in Geneva, or running High Court appeals for influential NGOs. But without you, the wheels of commerce in Australia would grind to a halt, causing real hardship to real people.
If acting as facilitators of business sounds less grand than acting as the moral conscience of the nation, do not feel slighted.
We are members of a privileged profession, and with that privilege come responsibilities. One responsibility is to adhere to the traditional legal ethics which I have discussed.
Another is to maintain a decent humility about our role. As lawyers, we are not masters but servants of the law.
Philip Ruddock, Federal Attorney-General