A lively debate between senior lawyers from the bar, the big firms, the regulator, and community legal centres was held on 20 June, with a disruptive ethicist adding to the discussion on whether law is a profession or a business, a “noble pursuit or a profit centre”.
The debate was held in the ceremonial court of the Federal Court of Australia in Sydney, before an audience of 150 judges, senior lawyers, academics and others interested in the topic of the debate.
This is the second of three ethics events organized by the Australian Academy of Law, the third scheduled for October 2017, with details to be announced.
The debate was opened by the President of the Academy Dr Kevin Lindgren QC, and the closing words were given by Professor Rosalind Croucher, the forthcoming chair of the Australian Human Rights Commission.
A recording of the debate – 1 hours 30 minutes – is at this link of the Academy’s website.
The debate
The President of the Law Council of Australia, Fiona McLeod SC, chaired the debate with provocative questions asked and issues raised for a panel comprising Don Robertson of Herbert Smith Freehills, Noel Hutley SC, Dr Attracta Lagan of Managing Values, John McKenzie, the NSW Legal Services Commissioner and Dr Linda Tucker of Community Legal Centres NSW. Full details at this link.
A hypothetical – “please alter your advice”
An opening hypothetical question was asked, and suggested answer given:
Q. A barrister advises that a client is not liable for breach of contract but is potentially liable for misrepresentation. The solicitor asks that the reference to misrepresentation be omitted, because it was not asked for in the brief.
A. The barrister decides to omit but adds to the advice that “this advice is confined to the question of contractual liability only, and does not address any other potential liability of the client”.
Some of the issues
These sort of issues were raised with and by the panel:
- clients who ask for legal advice before they decide whether to retain you to give that advice
- transnational work in jurisdictions with lower or less clear ethical principles, for example, as to the duty of full disclosure on ex parte applications
- less government funding for the legal assistance sector resulting in reliance on volunteers and paralegals
- accountants adopting higher ethical values, through changes to their Code of Ethics, to report serious crime. Should lawyers?
- are the ethical challenges that lawyers face changing?
- are those challenges different for those doing business in Asia where the concepts of judicial and professional independence are not entrenched?
- do the legal regulators allow the need for lawyers to adapt to changing circumstances and pressures of practice – “wiggle room” with ethical standards?
- how will the adaption of principles of corporate social responsibilities, modern slavery and the UN guiding principles for business and human rights change or impact on lawyers’ practices and advice to corporate clients?
- what are the pressures on senior partners of the major firms in managing the ethical standards of their new lawyers?
- Where are the challenges for junior barristers increasingly encouraged to take direct briefs, or low fee matters, in effect acting as solicitor and counsel?
- community legal centres have the pressures of distance, resources, and language and clients often have multiple interrelated social and economic challenges – what are the ethical pressures to maintain a case load and spend good but minimum time with clients?
- is artificial intelligence a potential benefit? Or hindrance?
Some questions asked of the panel were these. How would you deal with these four?
- A client wants to seek an ex parte injunction in the US rather than Australia because there is no requirement of full disclosure or undertaking as to damages in the US?
- A client asks you to include a ‘forensic accountant’ in the litigation team and also take a friend to sit in court. It turns out the accountant is a deregistered solicitor and the friend is a bikie debt collector.
- Prompt advice on an unusual area of law is needed. A first draft of your court submissions is prepared by someone claiming Harvard qualifications in a remote country, overnight, cheaply. They look ok, and your memory of the subject in your law studies is little rusty, but you haven’t time to check them. Do you put your name to them?
- A client instructs you in a major new matter but you suspect that they have done so to conflict you out. No work arrives beyond the first email for weeks. The other side calls and you begin to act and have time on the clock before realising it’s the same matter. How do you navigate? What if the client asks you to act pro bono?
Details of the Australian Academy of Law are here, including its essay prize, and forthcoming events, the next being ‘Bringing Science, Technology and Law Together to Solve the Illegal Fishing Challenge’.
Michael Murray, Fellow of the Australian Academy of Law
