September 2016


Rule of law is society’s bedrock

By Justice Martin Daubney
This is an edited version of the 2016 annual Geoff Masel Memorial Lecture

Lawyers are defined by their profession’s adherence to and observance of ethical duties.

If practitioners are to attain and retain the privilege of the status they have earned by admission to the profession, they should be attentive to maintaining and developing a contemporary conception of the ethical duties that define them.

A lawyer's ethical duty cannot be displaced by commercial reality.

In 1993, Sir Anthony Mason said: "The professional ideal is not the pursuit of wealth but public service. That is the vital difference between professionalism and commercialism."

It will be a challenge in the developing legal services environment to maintain our profession's claim to ethical status. But it is a challenge that must be met, or we will lose our status as a profession and be relegated to the ranks of mere service provider. That provides good reason for us, individually and as a profession, to be alive to, and constantly reviewing, our understanding and application of the ethics that underpin our profession.

The courts and professional bodies can pronounce on ethical standards until they are blue in the face, but the real life application of those standards comes down to a moral choice by the individual practitioner. The real test of ethical behaviour is when a lawyer's personal values and attitudes must respond to ethical situations that arise unexpectedly and spontaneously in practice.

The paramount duty that binds us is the duty to the court. Sir Gerard Brennan, in Giannarelli v Wraith, states the message clearly. "A client - and perhaps the public - may sometimes think the primary duty of counsel in adversary proceedings is to secure a judgement in favour of the client. Not so."

Chief Justice Mason, in Giannarelli v Wraith, emphasised the status of the duty to the court and noted the potential for tension between that duty and the duty to the client, saying: "A barrister's duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgement in the conduct or management of a case in which he has an eye not only to his client's success but also to the speedy and efficient administration of justice."

Mason CJ concluded that, if advocates’ immunity were removed, there would be a real risk the potential liability of counsel would influence the exercise of their independent judgement by making them more mindful of the need to avoid any possibility of liability to the client, leading to a conclusion that exposure of counsel to advocates’ liability "would create a real risk of adverse consequences for the efficient administration of justice".

In 2005 the High Court, while reaffirming Giannarelli v Wraith, reconsidered the policy considerations that underpin advocates’ immunity. In D'Orta-Ekenaike v Victorian Legal Aid the plurality said: "Although reference is made in Giannarelli to matters such as ... the potential competition between the duties an advocate owes to the court and a duty of care to the client ... each was, and should be, put aside as being, at most, of marginal relevance to whether an immunity should be held to exist."

The plurality expressly said the line of reasoning pointing to a potential conflict between the duty to the court and the duty to the client wrongly assumed the duties might conflict. "They do not; the duty to the court is paramount."

In 1998, Justice David lpp wrote in the Law Quarterly Review that there were four broad categories of lawyers’ duties to the court: disclosure; not to abuse the court process; not to corrupt the administration of justice; and to conduct cases efficiently and expeditiously.

The first three categories were derived from the public interest in ensuring the administration of justice is not subverted or distorted by dishonest, obstructive, or inefficient practices. The fourth reflected community attitudes and standards.

So-called "transactional lawyers" might spend their lives well away from courtrooms but, at a practical level, the court should never be far from their minds. The ultimate litmus test when a deal is being brokered or contractual terms drafted must be: How will this stand up in court if things go pear shaped because, for example, there is a default, or the parties have a falling out, or a government regulator comes knocking on the door?

The grab-bag of principles we describe under the label "duty to the court" are emanations of the paramount duty that binds us as officers of the court, the duty to the administration of justice. That duty is owed to the community at large and founded in the essential public interest in the proper administration of justice. That is why lawyers must not merely observe but foster respect for the law and its administration.

When you, as a lawyer, engage in a negotiation on behalf of a client, or represent a client at a mediation, you are simultaneously performing two roles:

  1. Your role in your capacity as an officer of the court, under which your paramount duty is to the administration of justice, and
  2. You are an advocate for your client, under which you owe a range of duties to your client which are trumped only by the paramount duty.

The duty to seek efficiency and expedition might be manifested by the following conduct:

• you should use the mediation process to identify the real issues in dispute and facilitate agreement about non-contentious issues
• you should prepare adequately for mediation
• you should prepare clear and succinct opening statements, and
• you should consider taking the mediation out of the strict confines of the court-related dispute, ie, assist the client, where appropriate, to explore resolution within a broader context.

Using the mediation process for an ulterior purpose may be a breach of the paramount duty. Ulterior purposes would include using the mediation as a fishing expedition, using it as an opportunity principally to interrogate an opponent to test their case or their potential as a witness, using it principally to ascertain facts not disclosed and not necessarily liable to be formally disclosed, or simply using mediation as a delaying tactic.

Mediation is not a litigation tool; it is a legitimate, controlled process with the object of dispute resolution, not dispute enhancement. One immutable component of the paramount duty is the lawyer's duty to act honestly.

Some commentators draw distinctions between a lawyer's conduct in a mediation and in a straight negotiation. Some suggest there is no law that requires lawyers to be open and transparent in negotiation but where does one draw the line between mere puffery and overstatement and misleading or deceptive conduct? If that line cannot be drawn with confidence, how can a lawyer be sure whether they are fulfilling or breaching their paramount duty?

Other commentators contend lawyers owe the same, or similar, duties of truthfulness and fairness in negotiations with other parties as they do in litigation. They argue tactics such as posturing and strategic misrepresentation, said by some to be the "rules of the game" for negotiation, are simply impermissible under both common law duties and professional conduct rules.

We have inherited an adversarial mode of practice and that adversarial mindset is reflected in many negotiation tactics.

Bond University’s Professor Wolski identified three broad guidelines for truthfulness in negotiation:

  1. A lawyer cannot knowingly, by some positive act or statement, lie or misrepresent their client's position. Silence, however, is not prohibited.
  2. If a practitioner makes a statement about a client's case, which he or she learns to be false, the practitioner is under a duty to correct the statement.
  3. A practitioner has no duty to inform an opposing party of relevant facts and documents, subject to any requirements imposed by substantive law and relevant legislation.

Those guidelines reflect the minimum required to comply with the duty of honesty in the context of a straight negotiation. Some commentators have suggested they fall short of, and indeed contradict, the intentions that underlie collaborative approaches to negotiation.

The rule of law is the bedrock on which our civilised society rests. The rank of officer of the court confers privilege and prestige, but with that rank comes the correlative responsibility of devoting ourselves to maintaining and protecting the rule of law through the proper administration of justice. That is the defining hallmark of our profession.

The ongoing challenge for each of us is not just in remaining faithful to the paramount duty but in ensuring, individually and collegially, that our observance of that duty responds appropriately to the rapidly changing environment in which we practise.

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