The WA Legal Practice Board has thumbed its nose at the national legal reform process and installed its own set of conduct rules.
Formally gazetted in the Western Australian parliament last week (23 November), the Western Australia Legal Practice Board (LPB) has updated the previous local set of guidelines, but not included the recommendations contained in the Law Council of Australia (LCA) submission to the Legal Profession Reform Taskforce.
"Given the current work being undertaken by the profession in relation to national law reform, the Law Council is disappointed with the decision by Western Australia to pass a new set of professional conduct rules," Glenn Ferguson, the president of the LCA said.
"It is hoped that in due course, the COAG Taskforce National Profession legislative package will be implemented nationally, meaning all Australian jurisdictions will be subject to the new national professional conduct rules."
Under the WA Legal Profession Act 2008, the LPB were, for the first time, given the power to make legal professional conduct rules. They replace the old professional conduct guidelines, which were not made into formal laws.
The Law Society of WA, the Bar Association of WA and the Legal Profession Complaints Committee were all consulted before the new rules - to apply from 1 January 2011 - were tabled before Parliament.
The Law Society of Western Australia had also argued for the adoption of the proposed national professional conduct rules.
"We were disappointed that the Legal Practice Board (LPB) chose to implement a new set of local rules, rather than adopt the national rules prepared by the Law Council of Australia," WA Law Society president Hylton Quail said.
Opposition to the actions of the LPB had been brewing for some time.
When WA released its draft legal professional rules, Robert Milliner, the chief executive partner of Mallesons Stephen Jaques and the Large Law Firm Group chairman, wrote a letter in March to Professor Michael Lavarch, the chair of the National Legal Profession Reform Project Consultative Group and Roger Wilkins, the secretary to the Attorney General's Department. In the letter, Milliner expressed his concern that the WA rules did not apply the draft national professional conduct rules.
"I am therefore surprised that Western Australia, having approved the LCA's conduct rules through the LCA Board (the Law Society of WA and Bar Association of WA represents the state on the LCA Board), would then endeavour to develop a different set of rules for Western Australia," Milliner wrote at the time. "This appears to be another example of behaviour which is not consistent with a commitment to national uniformity."
WA LPB executive director Graeme Geldart told Lawyers Weekly that the submissions of the WA Law Society and proposed national conduct guidelines were taken into consideration, but it was important that WA was able to legislate for its own set of regulations.
"We were developing the professional conduct rules in Western Australia while the proposed national rules were still being drafted, and even now, they are still only in a consultancy phase," he said. "We believed that we could develop a set of rules that would better represent Western Australian practitioners and worked with those bodies to achieve that."
Geldart said he was aware that by adopting such a stance it might rankle various legal bodies, and that the WA LPB was open to incorporating any national conduct rules that might be legislated in the future.