Book Review: Professional Responsibility and Legal Ethics in Queensland

The publication of a textbook devoted to the regulation of the legal profession in Queensland is long overdue. Though Legal Ethics in Australia is very well served by Professor Dal Pont’s authoritative “Lawyers Professional Responsibility”, Queensland has not had its own book on legal ethics since 1986 when the Honourable Glen Williams QC updated Professor Harrison’s seminal work “The Law and Conduct of the Legal Profession in Queensland’. Though parts of Harrison’s book are still relevant to today’s legal practitioners1, the enacting of the Legal Profession Act 2004 and 2007 (‘LPA 2004 & LPA 2007’ respectively) brought considerable change to the mechanisms surrounding the investigation and prosecution of ethical breaches.  

The text opens with an introductory chapter which explains the movement in professional responsibility under the new regime. The authors point out2

“The current regulatory regime establishes a set of legal conduct rules that are more concerned with establishing and preserving the integrity of the legal services market and the confidence of consumers in the quality of services and products within that market, than they are with ‘doing the right thing’ in a purely moral sense.

“The traditional distinction between law as a business and law as a profession no longer applies. The current regulatory regime relies on competition as a process of rivalry and free market forces to provide access to legal services of the highest quality and at the lowest price3. The notion of unethical or unsatisfactory professional conduct has been re-conceptualised. It is no longer judged in terms of what lawyers are entitled to expect of each other with regards to meeting professional standards. Instead, it is assessed in terms of what members of the public, as consumers of legal services, are entitled to expect of a reasonably competent Australian legal practitioner.

“The regulatory regime for the provision of legal service in Queensland now resembles, in many respects, the approach to consumer protection that applies more broadly under Pt V Div 1 of the  Trade Practices Act 1974 (CTH) and the equivalent provisions of the State and Territory Fair Trading Acts regarding the supply of goods and services generally.”

If that conceptualisation suggests that the idea of a “profession” as opposed to a “trade” or “business” has ceased to have relevance, many will argue with it4 but the text does not examine that matter and it is not the place to do so here.

The text is designed both for the profession and the student of law. The nature of legal publishing is such that many law books are targeted at or more towards law students. As such the book is expressed in a simple and easy to understand way. Rather than being an annotated version of the LPA 2007, it is broken up into chapters covering such areas as “The regulatory regime: Conduct standards, investigation and prosecution”, “Communications: Effective, professional, timely and courteous” and “Barristers’ Obligations”. The authors suggest that the legislation has rort “significant changes to the regulation of the profession”. It is this theme which is not borne out by the facts. The Acts have changed the form rather than the substance of ethics in Queensland.

There is no doubt that the public today expect more from the legal profession than ever before. As Lord Steyn put it in Lawal v Northern Spirit Ltd [2004] 1 All ER 187 at 196 [22]:

“What the public was content to accept many years ago is not necessarily     acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago.”

Chapter 1 addresses the regulatory regime introduced by the 2004 Act. This is a necessary introduction to the office of the Legal Services Commissioner, its powers and duties and the mechanics of its acting upon complaints. The text provides frequent references to the annual report of the Legal Services Commission 2006/07 and diagrams and flowcharts showing analysis of complaints, the way they are addressed and processed, and a pyramid of enforcement for established breaches.

One might be forgiven for thinking there is a superfluity of detail in this Chapter, particularly after the Introduction clearly explains the new regime. However the detail has a peripheral relevance to the topic of professional responsibility. Perhaps in later editions the authors may feel that the need for the explanations are less pressing.

Chapter 2 begins by pointing out that the “new statutory professional standards ‘unsatisfactory professional conduct’ and ‘professional misconduct’, significantly expand the reach of professional disciplinary proceedings. They now include not just traditional ethical misconduct, but conduct arising from incompetence or a lack of diligence as well.”

It continues:

“the extent to which they cover poor standards of services, such as a practitioner involving the client in unreasonable delays; or giving the client inaccurate information; or failing to keep the client informed about the progress of the matter, is unclear. The LPA draws a distinction between ‘consumer complaints’, that is, complaints not involving any issue of unsatisfactory professional conduct or professional misconduct, and ‘conduct complaints’, being those involving an issue of unsatisfactory professional conduct or professional misconduct.”

 The LPA 2004 and LPA 2007 have provided a system which is more transparent. The introduction of an independent government agency to oversee investigation and prosecution of ethical breaches has relieved the profession of the charge of jobbery, “Caesar judging Caesar”, which was levelled at it. I believe it was a charge that was unfairly laid, and figures bear that out, but I understand that in these times of media scrutiny and limited understanding of the nature of professional obligations, such a move was beneficial.

The text has shortcomings. It lacks a critical analysis of the law. It seems to accept without question that “significant changes” have occurred when, in fact the information and cases provided in the book demonstrate otherwise. For example the reader is told that;

“[a]lthough traditional ethical duties such as the paramount duty to the court and the administration of justice, honouring undertakings and avoiding conflicts of duty and interest are as relevant today as they have always been, the culture and context in which the ethical duties of lawyers are benchmarked and assessed is increasingly commercial and consumer orientated”5,

Yet the authors do not identify how this new cultural context is impacting on the disciplining of the legal profession in Queensland.

Where once we referred to “clients” the Act now calls them “consumers of legal services”. The fundamental basis for assessing lawyers’ responsibilities remains, as it has always been, a matter for a court. The Court however is now only a single judge and the interpretation of ethical obligation involves the interpretation of the legislation, but it uses the old common law principles.

Too much emphasis is placed on charges which are more imagined than real. The reader is told:

“The new regime promotes risk management on the part of practitioners. It requires Incorporated Legal Practice (ILPs) and Multi-disciplinary Practises (MDPs) to ensure that ‘appropriate management systems’ are implemented so that the ‘professional obligations’ of the lawyers under the LPA can be maintained”.

This suggests that the maintenance of professional standards is something which is done via managerial practises within firms rather than lawyers abiding by their professional obligations according to the oath they took when admitted to practice.

The authors go on;

“With this in mind, the Queensland Law Society and the Legal Services  Commission have identified 10 areas of sound legal practise — the so called ‘10 commandments’ — which need to be addressed to ensure that appropriate management systems are in place. One is more likely to hear these days, talk of these ‘10 commandments’ of appropriate management systems in relation to lawyer ethics and accountability, laid down by statutory regulators external to the profession than of the latest deliberations of superior court judges and senior members of the profession itself about the question of what constitutes ethical legal practise”.

The fact that the Legal Services Commission is more vocal in its views about what does and does not constitute unethical behaviour is no doubt an important consideration for the profession. As the investigative and prosecuting body it is useful for the profession to understand its policies. However to suggest that the views of the Commission are somehow more important than that of the court is, at the very least, misleading. The policy approaches of the LSC are as useful to the legal profession as the policy approaches of the Department of Public Prosecutions is to those practising criminal law. It is strange to see this text pedalling similar ideas to students and professionals, considering that not one of the 22 judgments involving the LSC cited by the book involve the ‘10 commandments’ of “appropriate management systems” mentioned.

In fact s 13 of the LPA 2007 makes clear the “new” regime does not alter in any way the inherent jurisdiction and power of the court over legal practitioners. The authors would have been better served to have given a closer reading to the legislation and the cases rather than to the Legal Services Commission Annual report.

The removal of senior members of the profession as the arbiters of ethical behaviour is, in my opinion, ultimately destructive to the profession. The new ethical regime now in place does not alter the fundamentals of ethical conduct. The development of 10 commandments of appropriate management is not itself a bad thing, but that is a systemic rather than fundamental change. Senior partners in firms set the tone for the firm. They lead by example and provide a model for those in the firm to follow.

We are told “encouraging lawyers to consider themselves as the providers of a service within a market inevitably leads to benchmarking of their professional duties against elements of that market”.6 This is at odds with the acceptance the authors have shown to the notions that there is a “deeper ethical framework”.7 The professional duties of the profession are, as they have always been, ‘benchmarked’ against considerations of common law responsibilities of truth, honesty and maintenance of the rule of law

We are told “the emphasis is now on ensuring good performance from consumer’s perspective in terms of the price quality and level of service provided by lawyers and whether they provide value for money”. In not one of the 22 cases that have gone before the Legal Services Tribunal to date have these considerations been mentioned

A shift to market forces will lead to a breakdown in ‘service’ if the legal profession abandon its traditional obligation to the court.

Though we are told, “there is little doubt that this keen focus on the regulation of the market and the protection of the consumers will benefit many of those who retain the services of Queensland lawyers”, it is unclear how this focus is relevant since it is not a consideration for the ultimate arbiter of ethical conduct, the court. Further, considerations of the protection of the public (as opposed to consumers) is not new and has long been a vital consideration for the court.8

The authors continue “the oversight and accountability mechanisms provided by the new regulatory regime are far more objective and transparent than those previously in place”.9 There is undoubtedly more transparency about the new system, but whether it is more objective than the previous system is a matter of debate. The LSC has now been operating since 1 July 2004. In that time no barrister has been struck off the role of practitioners for misconduct. In the preceding 4 years (2000-2003) the old “oversight and accountability mechanisms” for regulating barristers, the Barristers Board, brought actions in court for the removal of barrister’s names from the role and was successful on all occasions.11

Chapter 2 examines the rationale for solicitor-client fiduciary obligations, confidentiality, avoiding conflicts of duty, concurrent representation and topics related to those. It quotes liberally from reported decisions and produces “scenarios” apparently provided by the Legal Services Commission at conferences for use by delegates. The results of their deliberations are part of the scenario.

Chapter 3 addresses the supervision of incorporated and multi-disciplinary partnerships, including a chapter on costs disclosure and billing practices.

Chapter 8 deals with negligence and the latest in professional responsibility as demonstrated in D’Orta-Ekenaike v Victoria Legal Aid11. Negligence as a disciplinary issue is addressed at 8.115. One might query the necessity to examine the topic, other than as a disciplinary matter, in such detail. There is a general tendency in all manner of textbooks to dwell on advocate immunity, but absent a disciplinary aspect, little purpose is served in a lengthy analysis of that topic here.

The remaining chapters address matters of conduct by solicitors and barristers with references to the decided cases. Each Chapter commences with a list of the topics dealt with, and where each may be found. This is helpful for the busy practitioner who can turn immediately to the particular point.

The authors have conveniently added four Appendices, namely:

1)    Legal Profession (Solicitors Rule) 2007

2)    2007 Barristers Rule

3)    Queensland Legal Services Commission, Prosecutions guidelines

4)    Lexon Insurance Queensland Conveyancing Protocol.

The general setting-out of this work deserves special mention. I have already observed that each chapter begins with a list of topics and their paragraph numbers. There is much more. All cases are printed on darkened pages, titled “Case Study”. The facts are set out economically and relevantly. Then there are Legal Services Commission scenarios which are identified by boxing. They are informative even if they have something of a populist bent. Finally, the index, which this subscriber regards as a vital aspect of text books, is comprehensive and detailed.

You will conclude from the foregoing that the work is consumer friendly. It has attained that advantage at the cost of style. One could never mistake it for one of the Common Law Library series. It lacks dignity. That observation goes to the heart of much of what this work is about. Sadly, no longer is the impetus for lawyers to “do the right thing” and to be an example to other members of society. Apparently, it is to satisfy the almighty consumer, a level of moral decency which may fall at the lower end of the scale.

James Crowley QC

Footnotes

1. See for example the chapters on Legal History in “Harrison’s Law and Conduct of the Legal Profession in Queensland”, 1986 Lawbook Company
2. Page 2.10
3. See Hon. Sir D Dawson ‘The Legal Services Market’ (1996) 5 Journal of Judicial Administration 47 at 148.
4. See for example, Kirby J ‘Legal Profession Ethics in Times of Change’ (1996) 14 AUSN Bar Review 170.
5. Preface page v “Professional Responsibility and Legal Ethics in Queensland” Crones, Stobbs & Thomas, Law Book Co 2008.
6. Preface page vi.
7. Preface page v.
8. See Clynes v New South Wales Bar Association (1960) 104 CLR 186 at 202, Queensland Law Society Inc v A Solicitor [1989] 2 QdR 331 at 340 and Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 270.
9. Preface page vi.
10. See Barristers Board v Darveniza [2000] QCA 253, Barristers Board v Young [2001] QCA 556 and Barristers Board v Pratt [2002] QCA 532.
11. (2005) 223 CLR 1.