Questions from Government lawyers often arise in relation to a range of obligations in practice, particularly concerning ethical questions or difficult situations. In this bulletin it is intended to provide a ready reference guide to aid government lawyers and those having a connection to their practice in understanding some of the more commonly encountered situations and solutions.
By virtue of being admitted to practice, a government lawyer is subject to the Australian Solicitors’ Conduct Rules. The Rules should be regarded as a first “port of call” in examining any ethically challenging situation. The Rules in fact at the beginning recite that their purpose is to “assist solicitors to act ethically.” In this sense they should not be regarded as punitive measures which are turned to after the event. Moreover they should be consulted regularly as an adjunct to managing risk and ensuring sound legal practice occurs.
Most government lawyers perform legal services in the nature of solicitors’ work. Accordingly the relevance of these Rules cannot be understated in respect of most issues. What then are some of the more typical issues which arise in the course of government legal practice as relevant to the Rules?
Who is your client? This is a fundamental matter for any solicitor particularly where their day to day activities are carried out in and around their usual client’s premises or around potential clients and/or instructors. Is the client a particular person as an office holder or is it the Department at large? That provides an easy demarcation. However it may be necessary in some cases to consult the Position description and duty statements of the lawyer if any doubt exists. From there, when instructions are provided at the outset, it is important for a file opening and recognition made of the client for whom those instructions are to be carried out.
The importance of ascertaining and confirming the appropriate client sets the foundation of the basic duties as a solicitor. Numerous duties may arise under the retainer as well as to the conduct generally of the lawyer carrying out the instructions both to the client, to the court, to the public and profession generally. This is important bearing in mind, that any breach of the Rules, is capable of giving rise to disciplinary action over professional conduct.
Some of the specified duties under the Rules include the general duty to the court and the administration of justice. A duty of confidentiality in respect of solicitor and client communications is a highly relevant duty which must remain in constant focus in any legal practice, particularly one involving government and public administration.
Familiarity between government lawyers and non-legal staff within a Department can risk causing a blurring and loss of focus in respect of the duty of confidentiality. There must be a conscious ongoing consideration as to who may be privy to communications and information in respect of each and every set of instructions within the legal practice. The client may of course specifically authorise disclosure in a particular case or generally in respect of information which would otherwise be confidential. In such case that authorisation should always be confirmed in writing before any confidentiality is waived.
Government lawyers also understand that there may well be legislative requirements binding them especially to confidentiality in respect of certain information gained in the course of their tenure. These duties, as well as the duties as legal practitioners under the Rules for duties arising in office, extend beyond any tenure in government service.
Another dilemma which arises in internal practices is the potential for over familiarity with the client. This leads to a constant need to be aware of fundamental duties owed to a client as set out under the Rules. This includes avoidance of any compromise to the lawyer’s own integrity and professional independence as well as carrying out their duties “competently, diligently and as promptly as reasonably possible” as the Rules stipulate. These can all be a challenging set of duties and responsibilities, particularly when resources are stretched and time lines are demanding.
A means to improve compliance and manage risk within an in-house legal environment is through a specific “legal office manual” setting out the obligations of legal practitioners within the practice. Ideally it should be tailor made to the individual practice while at the same time retaining the generic features of most law office manuals in terms of compliance with the Rules, routine administrative items such as the handling of correspondence, management of files and time limitation or court calendars, and reference to the various obligations under the common law. It should also specify issues such as confidentiality and the limited circumstances of waiver of privilege or confidentiality.
As has been the experience with law claims generally in the private profession, risk management strategies, including practice manuals and documented procedures, dramatically reduce the instance of claims against those who have implemented such measures. This can equally apply in respect of Governmental legal practices in terms of ensuring minimising risk of infringement with the Australian Solicitors Conduct Rules.