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