SlideShare a Scribd company logo
1 of 14
Download to read offline
Ethical Issues for Government
Lawyers
Gregory Ross
Partner
Ethics &
Professional
Responsibility
23 March 2016
Ethical Issues for Government Lawyers
 Sources
 Overlayer
 Consistency and Primacy
 Defining Good, Independent Advice
 Understanding Confidentiality
 Managing Conflicts
 Understanding Model Litigant Principles
Ethical Issues for Government Lawyers
The Maze
Lawyer Laws Public Sector Rules
Legal Profession Uniform Law
Legal Profession Uniform Law
Application Act
Legal Profession Uniform Regulation
2015
Legal Profession Uniform Law
Application Regulation 2015
Legal Profession Uniform General Rules
2015 :-
Admission Rules 2015
Australian Solicitors Conduct Rules
2015
Legal Practice (Solicitors) Rules
2015
Continuing Professional
Development (Solicitors Rules
2015)
Public Sector Employment Act
Public Sector Codes of Conduct
Public Sector Governance Issues
Ethical Issues for Government Lawyers
Base Provisions
• Legal Profession Uniform Law (Victoria)
• Legal Profession Uniform Law Application Act
• Legal Profession Uniform Regulation 2015
• Legal Profession Uniform Law Application Regulation 2015
• Legal Profession Uniform General Rules 2015:-
– Admission Rules 2015
– Australian Solicitors Conduct Rules 2015
– Legal Practice (Solicitors) Rules 2015
– Continuing Professional Development (Solicitors Rules 2015)
Ethical Issues for Government Lawyers
Some Overlayer Issues
• Public Sector Employment Act
• Public Sector Codes of Conduct
• Public Sector Governance Issues
• Oversight Agencies and the Media
Ethical Issues for Government Lawyers
Defining Good, Independent Advice
• Who is the client
• The Crown/the State/the Authority/the
Minister/the Departmental Secretary/the
CEO/the Rest
• Objective Practical Advice v Unduly Facilitative
Advice
Ethical Issues for Government Lawyers
Understanding Confidentiality
• General lawyer confidentiality
• Confidentiality Agreement Obligations
• Confidentiality Obligations – Legal e.g. Privacy
Laws
Ethical Issues for Government Lawyers
Managing Conflicts
• Internal to Agency
• Cluster Conflict– rare but possible
Ethical Issues for Government Lawyers
Understanding Model Litigant Principles 1
 Civil, All Courts Tribunals Enquiries and Arbitration
Including ADR
 ? Curially Enforced
 Subject to internal guidelines and Premier's
Memoranda
 More than acting honestly and consistently with core
rules and beyond normal lawyer ethical obligations
but to do with complete propriety, fairness and
acting in accordance with highest professional
standards
Ethical Issues for Government Lawyers
Understanding Model Litigant Principles 2
Promptness and avoiding unnecessary delay
Paying legitimate claims without litigation where
clear liability exists
Consistent handling of claims
Avoid cost of litigation where possible including
usable tentative dispute solution
Minimise costs by not requiring other party to
prove things known to be true and not contesting
liability where the state or agency knows the
issue is really about quantum
Ethical Issues for Government Lawyers
Understanding Model Litigant Principles 3
 Don't disadvantage claimants lacking resources to
litigate claim
 Avoid technical defences without good cause
 Don't prosecute appeal without reasonable prospect
of success
 Does not prevent legitimate steps to be taken in
pursuing litigation and testing or defending claims
Ethical Issues for Government Lawyers
Understanding Model Litigant Principles 5
Does not prevent: –
 Recovery of costs and enforcing costs orders;
 Relying on Legal Professional Privilege or other privilege
including Public Interest Immunity;
 Pleading limitation periods;
 Seeking security for costs;
 Opposing unreasonable repressive claims or processes;
 Requiring opposing litigants to comply with procedural
obligations;
 Moving to strike out untenable claims or proceedings.
Ethical Issues for Government Lawyers
Some Links
• www.lawsociety.com.au/ForSolicitors/professionalstandards/ruleslegislation/
index.htm
• http://www.justice.nsw.gov.au/legal-services-
coordination/Documents/cabinetapp-mlp.pdf
• http://arp.nsw.gov.au/m2009-17-briefing-senior-counsel
• http://www.justice.nsw.gov.au/legal-services-
coordination/Documents/cabinetapp-ebp.pdf
• https://www.comlaw.gov.au/Details/F2012C00691
• http://www.justice.nsw.gov.au/legal-services-
coordination/Documents/cabinetapp-mlp.pdf
• © Eakin McCaffery Cox 2016 Presentation Gregory Ross
• Copyright and contribution Notice
• This work is copyright and except as permitted under the Copyright Act (Australia) 1968 no part of it may be reproduced, stored or transmitted by
any electronic or other process without the prior written permission of the copyright owners.
• The author acknowledges the contribution by Debbie Tran, Solicitor, of Eakin McCaffery Cox to the content of this paper.
• Limited permission
• The authors and copyright owners grant to the Legalwise and those attending its seminar of 16 June2015 a limited, free, non-exclusive, perpetual
right to copy or reproduce this work for personal or in-house training purposes, on the conditions that it:
• Attributes the source of the work
• Reproduces the above copyright notice on any partial or full copy of this work
• Does not edit or alter the work in a manner that renders any of the information in it incorrect or misleading or derogates from the integrity of the
work.
• Disclaimer
• This work was prepared for the presentation of a seminar and is intended to provide a broad overview about the topics covered.
• Neither it nor the ensuing discussion are intended, and must not to be relied upon, as legal advice. While the authors have made every effort to
ensure the information in this work is up to date and accurate, they do not accept any responsibility or liability for any errors or inaccuracies.
The Boring Bits

More Related Content

Similar to Ethical issues for Government Lawyers 23.3

Professional Ethics for CPAs - What the Rules Say and How to Interpret Them
Professional Ethics for CPAs - What the Rules Say and How to Interpret ThemProfessional Ethics for CPAs - What the Rules Say and How to Interpret Them
Professional Ethics for CPAs - What the Rules Say and How to Interpret ThemMcKonly & Asbury, LLP
 
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Financial Poise
 
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...Financial Poise
 
Entrepreneurial marketing
Entrepreneurial marketingEntrepreneurial marketing
Entrepreneurial marketingSajad Nazari
 
Small Business Essentials
Small Business EssentialsSmall Business Essentials
Small Business Essentialsbobweil
 
Time management for lawyers by abhishek sharma
Time management for lawyers by abhishek sharmaTime management for lawyers by abhishek sharma
Time management for lawyers by abhishek sharmaAbhishek Sharma
 
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...Traklight.com
 
Overview of regulatory change in legal services market (June 2020)
Overview of regulatory change in legal services market (June 2020)Overview of regulatory change in legal services market (June 2020)
Overview of regulatory change in legal services market (June 2020)Legal Evolution PBC
 
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...Financial Poise
 
CV_[MUZAMMIL M SHAH UP DATED JAN 2016
CV_[MUZAMMIL M SHAH UP DATED JAN 2016CV_[MUZAMMIL M SHAH UP DATED JAN 2016
CV_[MUZAMMIL M SHAH UP DATED JAN 2016Muzammil Mujtaba Shah
 
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...UCICove
 
Personal Finance Professional Ethics & Standards of Practice - A Professional...
Personal Finance Professional Ethics & Standards of Practice - A Professional...Personal Finance Professional Ethics & Standards of Practice - A Professional...
Personal Finance Professional Ethics & Standards of Practice - A Professional...milfamln
 
New Judge Mentor Program Presentation
New Judge Mentor Program PresentationNew Judge Mentor Program Presentation
New Judge Mentor Program PresentationWASCJA
 
What industry (and clients) expect from lawyers
What industry (and clients) expect from lawyersWhat industry (and clients) expect from lawyers
What industry (and clients) expect from lawyersLawSikho
 

Similar to Ethical issues for Government Lawyers 23.3 (20)

Data Privacy and IP Due Diligence
Data Privacy and IP Due Diligence Data Privacy and IP Due Diligence
Data Privacy and IP Due Diligence
 
Professional Ethics for CPAs - What the Rules Say and How to Interpret Them
Professional Ethics for CPAs - What the Rules Say and How to Interpret ThemProfessional Ethics for CPAs - What the Rules Say and How to Interpret Them
Professional Ethics for CPAs - What the Rules Say and How to Interpret Them
 
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...
Hot Off the Presses: Recent Cases & Decisions (Series: Legal Ethics - Best Pr...
 
How to Start an Intellectual Property Law Practice
How to Start an Intellectual Property Law PracticeHow to Start an Intellectual Property Law Practice
How to Start an Intellectual Property Law Practice
 
Ip 101 for Startups
Ip 101 for StartupsIp 101 for Startups
Ip 101 for Startups
 
ALA Training: Legal Ethics
ALA Training:  Legal EthicsALA Training:  Legal Ethics
ALA Training: Legal Ethics
 
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...
I Know What You Did Last Summer: Workplace Investigations (Series: Protecting...
 
Entrepreneurial marketing
Entrepreneurial marketingEntrepreneurial marketing
Entrepreneurial marketing
 
Small Business Essentials
Small Business EssentialsSmall Business Essentials
Small Business Essentials
 
EILS Seminar: Workplace Investigations
EILS Seminar: Workplace InvestigationsEILS Seminar: Workplace Investigations
EILS Seminar: Workplace Investigations
 
Time management for lawyers by abhishek sharma
Time management for lawyers by abhishek sharmaTime management for lawyers by abhishek sharma
Time management for lawyers by abhishek sharma
 
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...
Traklight Webinar with Shane Olafson and Kyle Siegal on Patent Dos and Don'ts...
 
Overview of regulatory change in legal services market (June 2020)
Overview of regulatory change in legal services market (June 2020)Overview of regulatory change in legal services market (June 2020)
Overview of regulatory change in legal services market (June 2020)
 
Admin Law TRIBUNALS.pdf
Admin Law TRIBUNALS.pdfAdmin Law TRIBUNALS.pdf
Admin Law TRIBUNALS.pdf
 
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...
Workplace Investigations (Series: Protecting Your Employee Assets: The Life C...
 
CV_[MUZAMMIL M SHAH UP DATED JAN 2016
CV_[MUZAMMIL M SHAH UP DATED JAN 2016CV_[MUZAMMIL M SHAH UP DATED JAN 2016
CV_[MUZAMMIL M SHAH UP DATED JAN 2016
 
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...
Common Pitfalls and Key Considerations in Getting (and Keeping) Intellectual ...
 
Personal Finance Professional Ethics & Standards of Practice - A Professional...
Personal Finance Professional Ethics & Standards of Practice - A Professional...Personal Finance Professional Ethics & Standards of Practice - A Professional...
Personal Finance Professional Ethics & Standards of Practice - A Professional...
 
New Judge Mentor Program Presentation
New Judge Mentor Program PresentationNew Judge Mentor Program Presentation
New Judge Mentor Program Presentation
 
What industry (and clients) expect from lawyers
What industry (and clients) expect from lawyersWhat industry (and clients) expect from lawyers
What industry (and clients) expect from lawyers
 

Ethical issues for Government Lawyers 23.3

  • 1. Ethical Issues for Government Lawyers Gregory Ross Partner Ethics & Professional Responsibility 23 March 2016
  • 2. Ethical Issues for Government Lawyers  Sources  Overlayer  Consistency and Primacy  Defining Good, Independent Advice  Understanding Confidentiality  Managing Conflicts  Understanding Model Litigant Principles
  • 3. Ethical Issues for Government Lawyers The Maze Lawyer Laws Public Sector Rules Legal Profession Uniform Law Legal Profession Uniform Law Application Act Legal Profession Uniform Regulation 2015 Legal Profession Uniform Law Application Regulation 2015 Legal Profession Uniform General Rules 2015 :- Admission Rules 2015 Australian Solicitors Conduct Rules 2015 Legal Practice (Solicitors) Rules 2015 Continuing Professional Development (Solicitors Rules 2015) Public Sector Employment Act Public Sector Codes of Conduct Public Sector Governance Issues
  • 4. Ethical Issues for Government Lawyers Base Provisions • Legal Profession Uniform Law (Victoria) • Legal Profession Uniform Law Application Act • Legal Profession Uniform Regulation 2015 • Legal Profession Uniform Law Application Regulation 2015 • Legal Profession Uniform General Rules 2015:- – Admission Rules 2015 – Australian Solicitors Conduct Rules 2015 – Legal Practice (Solicitors) Rules 2015 – Continuing Professional Development (Solicitors Rules 2015)
  • 5. Ethical Issues for Government Lawyers Some Overlayer Issues • Public Sector Employment Act • Public Sector Codes of Conduct • Public Sector Governance Issues • Oversight Agencies and the Media
  • 6. Ethical Issues for Government Lawyers Defining Good, Independent Advice • Who is the client • The Crown/the State/the Authority/the Minister/the Departmental Secretary/the CEO/the Rest • Objective Practical Advice v Unduly Facilitative Advice
  • 7. Ethical Issues for Government Lawyers Understanding Confidentiality • General lawyer confidentiality • Confidentiality Agreement Obligations • Confidentiality Obligations – Legal e.g. Privacy Laws
  • 8. Ethical Issues for Government Lawyers Managing Conflicts • Internal to Agency • Cluster Conflict– rare but possible
  • 9. Ethical Issues for Government Lawyers Understanding Model Litigant Principles 1  Civil, All Courts Tribunals Enquiries and Arbitration Including ADR  ? Curially Enforced  Subject to internal guidelines and Premier's Memoranda  More than acting honestly and consistently with core rules and beyond normal lawyer ethical obligations but to do with complete propriety, fairness and acting in accordance with highest professional standards
  • 10. Ethical Issues for Government Lawyers Understanding Model Litigant Principles 2 Promptness and avoiding unnecessary delay Paying legitimate claims without litigation where clear liability exists Consistent handling of claims Avoid cost of litigation where possible including usable tentative dispute solution Minimise costs by not requiring other party to prove things known to be true and not contesting liability where the state or agency knows the issue is really about quantum
  • 11. Ethical Issues for Government Lawyers Understanding Model Litigant Principles 3  Don't disadvantage claimants lacking resources to litigate claim  Avoid technical defences without good cause  Don't prosecute appeal without reasonable prospect of success  Does not prevent legitimate steps to be taken in pursuing litigation and testing or defending claims
  • 12. Ethical Issues for Government Lawyers Understanding Model Litigant Principles 5 Does not prevent: –  Recovery of costs and enforcing costs orders;  Relying on Legal Professional Privilege or other privilege including Public Interest Immunity;  Pleading limitation periods;  Seeking security for costs;  Opposing unreasonable repressive claims or processes;  Requiring opposing litigants to comply with procedural obligations;  Moving to strike out untenable claims or proceedings.
  • 13. Ethical Issues for Government Lawyers Some Links • www.lawsociety.com.au/ForSolicitors/professionalstandards/ruleslegislation/ index.htm • http://www.justice.nsw.gov.au/legal-services- coordination/Documents/cabinetapp-mlp.pdf • http://arp.nsw.gov.au/m2009-17-briefing-senior-counsel • http://www.justice.nsw.gov.au/legal-services- coordination/Documents/cabinetapp-ebp.pdf • https://www.comlaw.gov.au/Details/F2012C00691 • http://www.justice.nsw.gov.au/legal-services- coordination/Documents/cabinetapp-mlp.pdf
  • 14. • © Eakin McCaffery Cox 2016 Presentation Gregory Ross • Copyright and contribution Notice • This work is copyright and except as permitted under the Copyright Act (Australia) 1968 no part of it may be reproduced, stored or transmitted by any electronic or other process without the prior written permission of the copyright owners. • The author acknowledges the contribution by Debbie Tran, Solicitor, of Eakin McCaffery Cox to the content of this paper. • Limited permission • The authors and copyright owners grant to the Legalwise and those attending its seminar of 16 June2015 a limited, free, non-exclusive, perpetual right to copy or reproduce this work for personal or in-house training purposes, on the conditions that it: • Attributes the source of the work • Reproduces the above copyright notice on any partial or full copy of this work • Does not edit or alter the work in a manner that renders any of the information in it incorrect or misleading or derogates from the integrity of the work. • Disclaimer • This work was prepared for the presentation of a seminar and is intended to provide a broad overview about the topics covered. • Neither it nor the ensuing discussion are intended, and must not to be relied upon, as legal advice. While the authors have made every effort to ensure the information in this work is up to date and accurate, they do not accept any responsibility or liability for any errors or inaccuracies. The Boring Bits