The Law Society of New South Wales recently published the second edition of "A Guide to Ethical Issues for Government Lawyers." The document provides an important and useful guide to lawyers working within government, as well as private practitioners who are retained by government agency. The guidelines were first published in 2003, and after a review of the guide in 2010, the Government Solicitor's Committee has helped to provide this important and useful updated version. The guide is designed to provide assistance on ethical issues that face any government lawyer or private practitioner who acts for government, and also provides some case studies and answers to assist practitioners in understanding how the principles will be applied. The new guidelines are intended to be read in conjunction with the relevant practice rules and statement of ethics, and will continue to be updated as required.
While the guidelines are not binding on legal officers, they do provide important information on the ethical and professional responsibilities of lawyers working with government agency. Some important insights and information from the new guidelines include the following:
- It is unethical for a legal officer to accept a retainer if the legal officer’s workload is too great to allow them to serve the client competently and diligently.
- Legal officers themselves must act as “model litigants” in all their dealings with the courts (indicating that legal officers must go further than merely ensuring that client agencies conduct themselves as “model litigants”).
- There is a distinction drawn between policy and legal advice, and it is acknowledged that policy issues are often woven into requests for legal advice. It is not unusual for legal officers to advise on matters that are concerned solely with policy or management.
Significant sections include:
Good, Independent Advice
- Legal officers are to accept instructions to advise or represent honestly, competently and diligently.
- Legal officers should provide professional legal services, whether or not their advice is welcome.
- A legal officer is not entitled to public oppose government policy concerning any matter in which they are or have been acting.
- Information given in confidence should be kept confidential, during and after employment, unless the agency authorises disclosure, there is an overriding legal duty to disclose, or a legal immunity for doing so.
- It is not unethical to make a protected disclosure.
- It is not unethical to pass on legal advice to another agency in accordance with law or government policy.
- Legal officers should advise client agencies to conduct themselves as model litigants. They should act in accordance with model litigant rules and assist agencies to do so.
Conflict of Interest
- Legal officers must deal fairly with their clients, free of the influence of any interest that may conflict with their clients’.
- Public sector law also prohibits conflicts of interest on the part of public sector employees.
- Legal officers should not act for more than one agency, for an individual and an agency, in the same matter if they have conflicting interests. This is so, even where the conflict was not apparent at the beginning but becomes evident later.
Giving Policy Advice
- A legal officer who is instructed to help the agency to carry out a transaction, does not have to offer unsought advice on the wisdom of the transaction. It is, however, appropriate to point out the legal effect of such provisions being drafted to carry out the transaction.
- Advice may be sought from legal officers about a matter of policy or management discretion. It is not unethical to provide such advice, but it is desirable, to prevent misunderstanding, to separate clearly the legal advice from the policy or management advice.
- The legal officer should consider whether this type of mixed advice may later raise questions about whether, for the purposes of legal professional privilege, the dominant purpose of the advice was legal or something else.
External Legal Service Providers
- If an agency is bound to refer particular types of matter to the Government legal agency, the legal officer should ensure that it does so.
- A legal officer must act diligently in every case: to brief and assist external legal service providers and raise any problems with their advice.
A copy of the new guidelines can be found here.