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New year, new focus: Ethics for Australian Government in-house lawyers

20 February 2024

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New year, new focus: Ethics for Australian Government in-house lawyers

Acting Chief Justice Mossop of the ACT Supreme Court, speaking at the ceremony to mark the opening of the 2024 legal year, adopted Sir Winston Churchill’s words at his first cabinet meeting: “I have nothing to offer, but blood, toil, tears and sweat.” The Acting Chief Justice announced that a year of “hard and unglamorous work for all involved” lies ahead. His Honour’s focus on the fundamentals of legal practice seems appropriate given the various inquiries and reports over the last year, with many aspects of them acting as a reminder of our professional responsibilities.

Issues for government lawyers

Recommendation 19.2 of the Report on the Royal Commission into the Robodebt Scheme emphasised the need for regular training for in-house lawyers and a duty to avoid any compromise to integrity and professional independence. Noting that much of the case law and guidance around ethical issues focuses on private practice and litigation, it is important to recognise the particular issues government lawyers face.

Last year, Justice Mossop identified common ethical situations which government lawyers may face and provided useful consideration of topics such as:

  • draft advice which is not finalised
  • requests not to put advice in writing
  • requests to change advice
  • content of requests for advice
  • assumptions that may not be reliable
  • dealing with past advice that is wrong
  • dealing with conclusions you disagree with.

Nonetheless, His Honour indicated more guidance should be provided to assist government lawyers.

Australian Government lawyers must comply with the Legal Services Directions 2017 (Cth) which set standards on particular issues. The Australian Government has committed to reviewing the Directions and they may provide further assistance in future.

While every fact situation is different, having a framework to work through when issues arise is useful. The following approach can assist in ensuring we are able to make the best ethical decisions:

  • start with our fundamental professional duties
  • seek assistance from guidance and resources
  • embed working through ethical issues in everyday practice.

Fundamental ethical duties

Interestingly, much of the current guidance and recommendations on ethical issues directs the focus of government lawyers to the professional duties reflected in the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and equivalent legislation in each jurisdiction. If faced with an ethical dilemma, reference to those fundamental professional duties is an excellent place to start. Importantly, our paramount duty is to the court and the administration of justice. This is supported by the other fundamental duties to:

  • act in the best interests of the client
  • be honest and courteous
  • deliver legal services competently, diligently and as promptly as reasonably possible
  • avoid any compromise to integrity and professional independence.

Guidance and resources

When determining how to apply those fundamental principles to a specific fact situation, there are various resources to assist, including case law and judicial commentary. Law societies also publish guidance for government lawyers, for example, A Government Lawyer’s Guide to Rules on Ethical Issues from the NSW Law Society.

The capacity to discuss ethical issues with colleagues, particularly senior practitioners, should not be underestimated, noting requirements to maintain client confidentiality. For those with practising certificates, you can seek support from your law society.

Embedding ethical considerations in your work

The requirement to complete one hour of professional training on ethics and professional responsibilities for those holding practising certificates should be seen as just the beginning. Discussing and working through practical ethical issues and scenarios regularly assists with understanding how to resolve different situations. This will help you be better prepared and aware of the available support options.

While ethical issues may be ‘unglamorous’ and giving them the attention they deserve requires hard work, the past year has highlighted their importance to all lawyers.

At our upcoming Australian Government lawyers CLE day on 12 March, we will share practical steps lawyers can take when facing ethical issues and look at the available resources that can assist with decision-making. View our program and register here.

If you have any questions about this article, please get in touch with our team below

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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