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Tending the bar

By John Cain and Kate Hamond
August 18 2002

American TV dramas such as Ally McBeal have a got a lot to answer for in shaping the image of the legal profession in Australia. The self-absorbed lawyer manages to flutter her way through her workplace and into the courtroom. The Practice, as well as Rumpole of the Bailey, are better at presenting the real-life moral dilemmas faced by lawyers, but even these programs provide only a snapshot of the law.

A lot of legal work is not a ratings winner and is far from glamorous. For a start, most lawyers are involved in work other than criminal law. They are not running off to court every morning trying to save the lives of clients on death row.

I am not suggesting that the public image of lawyers is entirely shaped by what we see on television. The cost of justice, the slowness of the litigation process and a general cynicism of the law as an institution are factors. However, it is also true that viewers often find it hard to accept the concept that their favourite TV hero can defend someone whom they know is guilty.

But it isn't the lack of reality in TV drama that frustrates me. Most legal dramas conveniently ignore the nature of the professional relationship that starts almost as soon as a client walks through the door of a legal office and continues well beyond the conclusion of the case.

All practising lawyers have entrenched ethical duties to the law, the court and their clients, which they must observe in the interest of the administration of justice.

The scenario goes something like this. If you have got a legal problem, you make an appointment with a solicitor. You sit down in the chair and outline your problem. The solicitor gives you advice and you provide the relevant documents.

From the moment you engage a lawyer, he or she has a fiduciary and ethical duty to act in good faith and honestly. If the solicitor has a potential conflict of interest in acting for you, he or she cannot act as your legal representative. Anything that you tell your solicitor is in absolute confidence unless it involves the concealment of a crime or other exceptional circumstances. If the solicitor betrays that confidence, the solicitor can be sued for damages.

The duties of a lawyer are very complex. For example, if a client involved in a Family Law case tells his solicitor that he wants to kill his ex-wife, the solicitor must weigh up how serious the threat is. Where does the solicitor's duty belong? Is it to the client or the law? If the client has the demonstrated will and capacity to carry out the threat, the solicitor must report it to police, therefore fulfilling the duty to the law.

Professional ethics now make up an important part of the law course and lawyers need to observe ethical standards in the conduct of their business. Good-quality client service, combined with high standards of professional ethics, is the key to successful legal practice.

Personal integrity and reputation is crucial. Without that, your currency as a lawyer can be worthless. Ethical behaviour really is the raison d'etre.

In 1996, Justice Michael Kirby warned lawyers not to lose sight of old values. In a speech to the St James Ethics Centre in Sydney, he speculated about whether it was possible to maintain noble ideals while practising in the world of commercial realities.

Most importantly, Justice Kirby said legal idealism endured because there remained lawyers "who are as committed to the ideals of service and dispassionate advice as existed in times gone by".

As Justice Kirby recognised in his speech, the legal profession has its own "heroes and role models in Australia". He said there were the "fine leaders of the Bar who daily accept the call to do pro bono work, just as their predecessors did in earlier times. Women lawyers who blaze a trail for equal opportunity in the law. Aboriginal lawyers.who will help to change two centuries of attitudes. Gay lawyers who courageously break down ancient stereotypes and refuse to accept prejudice from society, least of all from their colleagues".

Lawyers in Victoria echo these sentiments. Whether it is by volunteering at legal centres or conducting cases on a pro bono basis, Victorian lawyers are active participants. To my knowledge, there is no other profession that has built in to its basic ethical foundation the requirement to undertake pro bono work.

As Justice Kirby reflected, the challenge now is to "preserve and, where necessary, defend the best of the old rules requiring honesty, fidelity, loyalty, diligence, competence and dispassion in the service of clients above mere self-interest and, specifically, above commercial self-advantage. Yet to move with the changing direction of legal services in a global and national market".

It is incumbent on lawyers to maintain the highest standards of ethical behaviour in this ancient and honourable profession. Are we up to it? I certainly believe we are. But don't believe everything you see on television.

- John Cain
John Cain is the Law Institute of Victoria's chief executive officer and has been a lawyer for 20 years.


Victoria is on the verge of getting a new system for handling complaints against lawyers.

You could be excused for not knowing this because, until now, there's been little public debate about the proposed changes.

The lack of an open debate might explain why the proposals are so fundamentally flawed and, if implemented, will deliver us a system less independent than the one we have now.

Upholding public trust should be a starting point of any system for regulating and disciplining a profession. The prime purpose of regulating the legal profession is the protection of the public.

Loss of public trust is bad, both for the consumers of professional services and for the profession itself.

The public can have confidence in a regulatory system only if it is seen to be impartial, accessible and transparent in its deliberations. Above all, it must be seen to be independent - free from any real or perceived bias, external influence or conflict of interest.

This is not just the view of one lone regulator in Victoria. The above set of criteria was laid down in a report commissioned by the council of state and federal attorneys general as part of a broader initiative to harmonise regulation of the legal profession in the various jurisdictions around Australia.

There has also been a review of regulation of the profession in Victoria, and the authors of that report also listed "openness, accountability and independence" as their chief criteria.

Why then, after all their fine and lofty rhetoric, have the reviewers recommended a new system for handling complaints which will be less independent than the existing one?

Everyone agrees the current system has its faults, not least of which is the confusing multitude of doors through which legal consumers can take their complaints.

Since 1997 there has been a regime of what's known as co-regulation, with complaints received and investigated by both the Legal Ombudsman's Office and the lawyers' professional associations - the Law Institute representing solicitors and the Bar Council representing barristers.

Aside from there being no single entry point for complaints, there is further confusion for the consumer over the type of complaints each investigative body is entitled to handle.

It's reasonable to interpret co-regulation, with all its imperfections, as an interim measure - the halfway point between the old system of self-regulation and the ultimate goal of fully independent regulation.

The rhetoric driving the review process certainly seemed to endorse that idea, and the new structure proposed by the reviewers does have the appearance of greater independence.

But, alas, it is just appearance.

The reviewers have called for the establishment of a Legal Services Commission, a body largely modelled on its namesake now operating in New South Wales. The Commission would act as a single entry point for receiving complaints, a welcome idea that addresses one of the key faults of the present system.

However, the catch, and it's a very big catch, is what happens to those complaints once they go through the Commission's door.

In most cases, complaints against lawyers of alleged misconduct or unsatisfactory conduct will be referred to the lawyers' professional associations for investigation.

In short, under this new, supposedly more independent system, the role of the professional associations in investigating lawyers will actually be enhanced.

My office strongly believes that for a complaint-handling system to be truly independent and to be seen to be independent, all conduct complaints must be received and investigated by a single, independent authority.

In order to build and maintain public confidence in the complaint-handling process, there should be no lingering questions about conflict of interest.

There may have once been a role for the Law Institute and the Bar Council in handling complaints against their members, back in the days when it was compulsory for lawyers to belong to those organisations.

But membership of the professional associations is now voluntary. It is worth noting that less than 70 per cent of Victorian solicitors choose to continue to be members of the Law Institute.

The primary function of the professional associations now is to represent and advance the interests of members. That legitimate advocacy role should not be confused with, or compromised by, a policing role.

Change is needed to make the complaint-handling system more transparent and accountable, and simpler for legal consumers to engage.

It is fair for the public to ask why the reviewers, charged with designing such a system, have not lived up to their own rhetoric.

- Kate Hamond
Kate Hamond is Victoria's Legal Ombudsman



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