Presented by The Honourable Chief Justice EDW Alstergren, The Honourable Justice R McK Robson and His Honour Judge Josh Wilson QC at Deakin University, Downtown Campus - 25 February 2019

DEAKIN UNIVERSITY
DOWNTOWN CAMPUS
JUDGES ON ETHICS
A TWILIGHT LECTURE BY
THE HONOURABLE CHIEF JUSTICE E D W ALSTERGREN
Chief Justice of the Family Court of Australia
Chief Judge of the Federal Circuit of Australia
THE HONOURABLE JUSTICE R McK ROBSON
Justice of the Supreme Court of Victoria
Professor of Law Deakin University
HIS HONOUR JUDGE J D WILSON QC
Judge of the Federal Circuit Court of Australia
Professor of Law Deakin University


Introduction

  1. This twilight lecture has been devised with a view to launching Deakin University law students into their careers in the law with some useful guidance.
  2. The three authors and presenters are sitting judges. Between them they claim over 130 years’ experience in the law, mostly as barristers, Queen’s Counsel and judges (state and federal).
  3. Legal ethics is a topic which calls for detailed knowledge at all times of your professional life. The consequences to you are too great for even an unwitting transgression of them. In extreme instances the transgressor may be dealt with for contempt of court. Lesser contraventions can lead to disciplinary action by a law society or other professional body. Conversely, an ethical life in the law will lead to fulfilling and satisfying years of practice.
  4. In making the observations that follow, we stress that the practice of the law is a profession. True, in the law you are busily engaged in advancing the interests of another person, yet in the pursuit of your calling you are expected (and required) to abide by, to the letter, an array of obligations that regulate precisely how you comport yourself.
  5. Ethics in a profession seemingly driven by profit is something of a curiosity not easily understood. That is why we thought it desirable to impart some limited comments so as to better assist you to understand how certain obligations transcend everything else you might do in your practice of the law.

Ethics in a Profession Driven by Profit

  1. At once you will be struck by two seemingly contradictory precepts. The first is the conventional driver of life in a first world liberal democracy of reward for effort, expressed in monetary terms as “profit”. The foils to that first precept are the duties under which all of you will operate upon admission to practise. In almost every professional calling by which people derive income, business and ethics do not overlap, a proposition famously extolled by Milton Friedman, the Nobel Peace Prize-winning economist who in 1970 said1 –
  2. The social responsibility of businesses is to increase profits.

  3. Former Deakin Law School Dean, Professor Mirko Bagaric, observed that business and ethics do not overlap when commenting on Milton Friedman’s principle thesis that the responsibility of business is to increase profits. In his paper Legal Ethics is (Just) Normal Ethics:  Towards a Coherent System of Legal Ethics2   Professor Bagaric said the following –

    Given the economic imperative to make money out of law and the handsome wages most lawyers earn, it is obvious that Friedman’s argument can be extended to the legal profession – the argument being that law is simply one form of business, like stockbroking, banking, television, football or hairdressing.

  4. Milton Friedman’s economic statements are not the guiding light of the law. The desire to make an income must be subjugated to the obligation to act in the best interests of the client and the duty not to use the law primarily as a money-making venture. This point was extolled by Maxwell P and Nettle JA on the Victorian Court of Appeal in the case of Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd.3
  5. The facts of that case may be briefly summarised. Melbourne City Investments Pty Ltd (“MCI”) was incorporated on 1 November 2012. One Mr Elliot, a solicitor, was its sole director and shareholder. On the day of its incorporation MCI purchased small parcels of shares in Treasury Wine Estates and Leighton Holdings respectively, each costing less than $700. In 2013 MCI, as lead plaintiff, issued securities class actions against Treasury Wine Estates and Leighton Holdings under the Corporations Act in the form group proceedings commenced under pt 4A of the Supreme Court Act. MCI did not stand to gain much compensation if it was successful in its proceedings but, if MCI was successful, Mr Elliot would receive a substantial award of costs.
  6. Allowing the appeal, the majority made some pertinent observations. Namely, Maxwell P and Nettle JA said4 “the only legitimate purpose for bringing a proceeding is to vindicate legal rights or immunities by judgment or settlement” and “unless the predominant purpose of bringing a proceeding is a legitimate purpose, the proceeding is an abuse of process and is liable to be stayed”, citing Williams v Spautz.5   The majority also examined the notion of collateral advantage. With reference to Goldsmith v Sperrings Ltd6 and Flower & Hart v White Industries (Qld) Pty Ltd,7 the majority observed –

    The authorities distinguish between two types of case. On the one hand, a proceeding will not be regarded as an abuse of process by reason only that it is brought for the purpose of taking collateral advantage of any judgment or settlement in vindication of legal rights or immunities which might be obtained in the proceeding. On the other hand, if a proceeding is brought for the predominant purpose of obtaining collateral advantage from the existence of the proceeding as such, as opposed to collateral advantage flowing from any judgment or settlement in vindication of legal rights or immunities which might be obtained in the proceeding, it will be an abuse of process and liable to be stayed.8

  7. Further, the majority held that –

    The processes of the Court do not exist — and are not to be used — merely to enable income to be generated for solicitors. On the contrary, they exist to enable legal rights and immunities to be asserted and defended. … The fact that success will result in the solicitors’ fees being paid does not affect the propriety of the proceeding.9

  8. Thus, the court found that the proceeding by MCI against Treasury Wine Estates fell into the second category, that is, for the predominant purpose of creating an income-generating vehicle for its solicitor by inducing the defendant company to pay Mr Elliot’s fees rather than advancing MCI’s interest in vindicating its rights or obtaining a remedy.10  Therefore the court stayed proceeding issued by MCI.
  9. Whether you agree or disagree, and whether you like it or not, despite the commercial nature of the business of the law the practice of the law has at its immutable foundation a collection of duties, without a deep knowledge of which you will be condemned to fail in your practice of the law.
  10. The comments that follow must be examined in context. We recognise that this speech is directed to an audience of high-achieving, young, motivated people who while wanting to make a difference in their professional lives are mostly motivated by the desire to be the best they can. If in the process that provides certain largesse, then that is a bonus and one by which you may equally be motivated, and rightly so. But herein lies the tension. By all means be the best you can be. By all means devote yourselves to enhancing the commercial interests of your clients and by all means derive all the largesse you can. But never – repeat, never – do so in a way that compromises in any shape or form the ethical obligations we will canvass with you today. Aside from the philosophical imperative that you are expected to act honourably at all times in the practice of an ancient and noble profession, in the practice of the law the pursuit of profit is subordinated to the maintenance of a strict and uncompromising body of rules that sets the practice of the law apart from almost every other professional calling on earth. Our ethics must prevail at all times. Our ethics take priority over profits. You simply must not only know and understand that at this juncture of your lives in the law but you must enthusiastically embrace all that comes with the notion. If you do not, look elsewhere for your future for you have no place in the law. But if you do embrace our basic instructions tonight, your career in the law is likely to be intellectually stimulating, satisfying, as remunerative as you want it to be and as happy as you make it. Above all else, act ethically at all times. Remember, clients will come and clients will go. Your good reputation takes a lifetime to build and to maintain – it can be lost in a single unethical act.

Your duties to the court

  1. It is widely acknowledged that the four categories into which Justice David Ipp (then of the Supreme Court of Western Australia) divided a lawyer’s duties to the court remain entirely apposite. At the time, Ipp J was describing events as at January 1998 that being the date of his famous article described below. Thirteen years later, Justice Kenneth Martin of the Supreme Court of Western Australia described Ipp J’s writings as ground-breaking. Martin J’s article appeared as Between the devil and the deep blue sea: Conflict Between the duty to the client and the duty to the court.11  As will later become apparent – there is no conflict between a lawyer’s duty to his or her client and the lawyer’s duty to the court. At all times the paramount duty is to the court.
  2. At all events, Ipp J’s article was indeed ground-breaking. Its fame was galvanised when published in the pre-eminent Law Quarterly Review journal under the title Lawyers Duty to the Court,12 a must-read document for you all even though one or two doctrines have been modified by more recent authority of the High Court of Australia and Australian legislation. In 1998 Ipp J was essentially drawing together the threads of learning derived from many hundreds of years of common law, predominantly British, on the subject of a lawyer’s duty to the court.

To whom is the duty owed?

  1. Ipp J said several things of immense relevance to you as aspiring practitioners. In no special order, his Honour said that the duty to the court is a “duty”, properly so-called even though –
    1. the duty is not owed to any particular judge;
    2. the duty is owed to the community at large; and
    3. the duty has a pivotal role in the administration of justice.
  2. If contravened, the breach of duty attracts sanguine consequences for the contravener. Those duties cannot be delegated.

Why does the duty arise?

  1. So far as the reasons for imposing the duties are concerned, they are twofold. In the first is the rationale that certain duties are derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest, obstructive or inefficient practices. In the second is the rationale that the duty to conduct cases efficiently and expeditiously is itself a reflection of community standards, attitudes and expectations.

Officers of the court

  1. Pursuant to what phenomenon do these duties arise, you may ask?  The duties arise because as admitted legal practitioners, or “Australian lawyers” as you will be known, you become an officer of the court. Historically, an officer of the court was bound by an overriding duty to the court. In certain common law jurisdictions an historical distinction exists between solicitors as officers of the court who owed such duties as opposed to barristers who were not officers of the court and therefore did not owe those duties. However, persons in many (although not all) Australian jurisdictions are admitted as Australian lawyers, (there being no formal difference between solicitor and barrister) so both are regarded as being officers of the court upon whom the duty to the court rests. Superior courts retain an inherent power to deal with officers, a point highlighted in Rondel v Worsley.13
  2. Ipp J divided the lawyer’s duty to the court into four subsets. It must fairly be said that his Honour’s distillation of the duty in those terms was something of a first, even though illustrations of the existence of the duty and countless illustrations of its breach pre-dated his Honour’s article by hundreds of years. Ipp J’s distillation of the general duties to the court were these –
    1. a duty of disclosure owed to the court;
    2. a duty not to abuse the court’s process;
    3. a duty not to corrupt the administration of justice;  and
    4. a duty to conduct cases efficiently and expeditiously.
  3. Before going to the detail of each of those elements, it is important to bring to your attention three decisions of the High Court of Australia that contained essential observations about a lawyer’s duty to the court. Those decisions are essential because they bind each of you, irrespective of earlier or different observations from other cases, particularly those from the House of Lords in cases such as Arthur JS Hall & Co v Simons.14  The three Australian cases are –
    • Giannarelli v Wraith;15
    • D’Orta-Ekenaike v Victoria Legal Aid; and
    • Attwells v Jackson Lalic Lawyers Pty Ltd.17
  4. If you are not already familiar with the main holdings of those three High Court decisions, you need to be because they will inform you how to behave in your professional life as lawyers.

The duty of disclosure

  1. One of the highest duties under which you will operate as a lawyer is the duty to never mislead the court. You are forbidden from stating facts that are untruthful. You are not permitted to mislead the judge about the true facts. You are not permitted to conceal from the judge facts that should been brought to the judge’s attention. You are not permitted to knowingly allow your client to deceive the court. For a more elaborate examination of those strictures, the House of Lords decision in Rondel v Worsley18 provides a useful guide.
  2. At once it will be apparent that the obligations just mentioned may clash with the lawyer’s duty of confidentiality commanding the lawyer to keep secret all communications of a confidential nature imparted by the client to the lawyer. This is particularly relevant to the lawyer’s obligation that forbids the lawyer from concealing facts that should have been brought to the attention of the judge, especially where, by bringing those facts to the attention of the judge the client will be adversely affected. In any conflict between a lawyer’s duty to the court and the duty to keep communications between lawyer and client confidential, the duty to the court is paramount, a point observed above.
  3. The situation with ex parte applications to the court is of special relevance. When a party makes an ex parte application the court does not have the benefit of a contradictor to the applicant. Therefore, all parties to the litigation are not before the court. Ex parte applications commonly arise where the circumstances of the application are urgent or where the proposed relief will be thwarted or rendered nugatory by the giving of notice to the respondent to the application. In an ex parte application, it is the unqualified duty of the applicant’s lawyer to make full disclosure to the court, a proposition of undeniable antiquity dating back to the 1850 English decision in Dalglish v Jarvie,19 most recently restated by the Court of Appeal in Brink’s-Mat Limited v Elcombe.20
  4. Aligned to the duty to the court is the obligation of the lawyer to know the law. Ipp J has described this obligation as a duty. If the obligation in truth is a “duty”, sadly the duty is frequently breached through poor preparation or simple omission. The House of Lords in Glebe Sugar Refining Co v Greenock Port and Harbours Trustee21 held that counsel has a duty to bring all relevant authorities to the attention of the court, whether or not those authorities assist the party that counsel represents. That is a very big obligation.
  5. The duty of disclosure is a critical duty with which lawyers must be intimately familiar.

The duty not to abuse the court’s process

  1. All lawyers are under a positive obligation to ensure that the litigation process is not used as a vehicle for a purpose other than a proper purpose. Lawyers must never abuse the court process. A seemingly infinite variety of ways to abuse the court exists and no useful purpose is served in cataloguing them beyond pointing out some instances that higher courts have denounced. Those include –
    • misleading the court, engaging in rampant obstructionism and raising arguments or issues that are bound to fail;
    • bringing or maintaining litigation for an ulterior purpose, as was held in Re G Mayor Cooke;22
    • advancing a fictitious cause of action, as was held in R v Weisz; Ex parte McDonald;23
    • using discovered documents for a collateral purpose, as was held in Harman v Home Department State Secretary;24
    • advancing litigation where the cause of action is not verified as being reasonably arguable;
    • taking unfair advantage of an obvious mistake made by a lawyer’s opponent, as was held in Ernst & Young v Butte Mining Plc.25
  2. Undertakings that once given, are later breached, will lead to a lawyer being disciplined severely, as was held in A Ltd v B Ltd.26
  3. Lawyers should not permit themselves to be drawn into any of those circumstances. If that means the client terminates the retainment of the lawyer, then so be it. The lawyer’s duty is higher than his or her client’s wishes.

The duty not to corrupt the administration of justice

  1. One of the most frequently asked questions is what a lawyer is to do when his or her client tells the lawyer that the client in fact committed the crime with which the client is charged. The question can only be usefully answered in stages, depending on when the client reveals his or her wrongdoing.
  2. If the client confesses to the lawyer prior to the trial, the lawyer must not advance a case of the client’s innocence, although the client is entitled to put the prosecution to its proofs, as was held in Tuckiar v R.27
  3. A lawyer must never assert as true that which he or she knows to be false.
  4. Nor must a lawyer assist in any way in dishonourable or improper conduct, as was held as long ago as the 18th century in R v Delaval.28
  5. A lawyer must not knowingly allow an untrue affidavit to be sworn, as was held by the House of Lords in Myers v Elman.29
  6. Where a lawyer obtains confidential information from a client in the course of representing that client, the lawyer will be restrained by injunction from using the information so obtained against the client if the lawyer subsequently acts for a different client whose interests diverge with the earlier client. The Supreme Court of Victoria made extensive observations about that in Spincode Pty Ltd v Look Software Pty Ltd.30  The authorities were helpfully drawn together by barrister Stephen Warne in an article The administration of justice ground for restraining solicitors from acting summarised.31 

The duty to conduct cases efficiently and expeditiously

  1. Time and time again pronouncements have been made by the High Court and other courts on the public interest being promoted by the prompt and economic disposal of litigation. Cases such Sali v SPC Ltd,32 Galea v Galea33 and Aon Risk Services Ltd v Australian National University34 serve as illustrations. In Victoria, the Civil Procedure Act 2010 (Vic) enshrines in law what are called “overarching obligations”. You need to be extremely conversant with those. The effect of those principles is that the lawyer must exercise skill, care and judgment to determine points of fact and law that are fairly arguable then jettison the rest. Gone are the days when a lawyer was said to have been under a duty to take all points. That was certainly the law as derived from Baron Bramwell in Johnson v Emerson.35  It is no longer good law.
  2. Lawyers are expected to co-operate with the court. The Full Court of the Supreme Court of Victoria held as much in R v Wilson & Grimwade.36
  3. Again, the way this duty may be breached is many and varied. Some were catalogued by the Australian Government Solicitor in Legal Briefings, 24 July 2015, number 107 to include the following37 –
    • failing to comply with court deadlines, thereby creating delays, costs and other prejudice in the proceedings;38
    • bringing proceedings and appeals for the purposes of creating a delay rather than the proper adjudication of legal rights;39
    • filing clearly deficient pleadings;40
    • creating false issues through tactical denials and refusals to admit matters known to be true;41
    • running arguments that are disproportionately lengthy, complicated and tendentious;42
    • conversely, failing to present arguments that are adequate to enable the court to determine significant legal issues;43
    • bringing proceedings on the basis of voluminous and poorly defined evidence rather than proper pleadings;44
    • filing affidavits that ignore the rules of evidence or are unnecessarily complicated and prolix.45

The lawyer’s duty to fellow practitioners and to your clients

  1. In any consideration of this issue it is important to understand that different obligations arise depending on whether the lawyer practises as a solicitor or as a barrister. Different obligations apply. We have not practised as counsel for some time so any advice to be offered about your duties to fellow practitioners and to your client is best left to others. That said, we can offer a word of general guidance.
  2. On a daily basis, members of counsel at the Bar practise the law to the high professional standards required of them. The practice of criminal law is a fine example. Every day, barristers represent defendants accused of serious crimes, testing the evidence adduced by the state to ensure that persons are only convicted of offences if a jury is satisfied of the accused’s guilt beyond reasonable doubt on admissible evidence properly proved.
  3. If you are in any doubt about whether or not you are in murky water on a particular issue, ask for help. Ask someone more senior. Ask an acknowledged leader in the field. Ask an advice line for guidance. Almost every lawyer is generous of spirit, ever willing to assist.
  4. The practice of the law is an ancient and honourable profession. It is one of the three learned professions. If you conduct yourself ethically at all times you will enjoy a satisfying and rewarding career.

25 February 2019
The Honourable Chief Justice E D W Alstergren
The Honourable Justice R McK Robson
His Honour Judge J D Wilson QC

Footnotes


1 New York Times newspaper, 13 September 1970.

2 (2003) 3 Queensland University of Technology Law and Justice Journal 367.

3 (2014) 45 VR 585.

4 Ibid [9].

5 (1992) 174 CLR 509, 533, 543.

6 [1977] 1 WLR 478, 489-90 (Lord Denning MR).

7 (1999) 87 FCR 134, 150-1.

8 (2014) 45 VR 585 [11].

9 Ibid [14].

10 Ibid [12].

11 (2011) 35 Australian Bar Review 252.

12 (1998) 114 Law Quarterly Review 63.

13 [1969] 1 AC 191.

14 [2002] 1 AC 615.

15 (1988) 165 CLR 543.

16 (2005) 223 CLR 1.

17 [2016] HCA 16.

18 [1969] 1 AC 199.

19 [1850] 42 ER 89.

20 [1988] 1 WLR 1350.

21 [1921] SC (HL) 72.

22 (1889) 85 TLR 407.

23 [1951] 2 KB 611.

24 [1983] 1 AC 280.

25 [1996] 1 WLR 1605.

26 [1996] 1 WLR 665.

27 (1934) 52 CLR 335.

28 [1763] 97 ER 913.

29 [1940] AC 282.

30 (2001) 4 VR 501.

31 Stephen Warne, The administration of justice ground for restraining solicitors from acting summarised (25 November 2006) The Australian Legal Profession Liability Blog <http://lawyerslawyer.net/2006/11/25/the-administration-of-justice-ground-for-restraining-solicitors-from-acting-summarised/>.

32 (1993) 67 ALJR 841.

33 (1990) 19 NSWLR 263.

34 (2009) 239 CLR 175.

35 (1871) LR 6 Ex 329.

36 [1995] 1 VR 163.

37 Tim Begbie, Legal Briefing Number 107, Duties to the court (24 July 2015) Australian Government Solicitor <https://www.ags.gov.au/publications/legal-briefing/br107.html>

38 Kelly v Jowett (2009) 76 NSWLR 405 (at [30]–[31] and [86]–[88]).

39 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 143 (Lee, Hill and Sundberg JJ); Saragas v Martinis [1976] 1 NSWLR 172 (Moffit P, with whom Hutley and Glass JJA agreed).

40 Modra v State of Victoria [2012] FCA 240 (Gray J).

41 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 (Ipp J).

42 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 (Pembroke J at [30]–[34]); Superior IP International Pty Ltdv Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 (Reeves J).

43 Saragas v Martinis [1976] 1 NSWLR 172 (Moffit P, with whom Hutley and Glass JJA agreed).

44 Director of Consumer Affairs Victoria v Scully (No 2) [2011] VSC 239 (Hargrave J).

45 Kinda Kapers Charlestown v Newcastle Neptunes Underwater Club [2007] NSWSC 329; Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931; and Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822.