In a well known passage in Ziems v The Prothonotary of the Supreme Court of New South Wales, Kitto J said that a barrister “…is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar”.1
That passage was quoted relatively recently by the Chief Justice in Barristers’ Board v Young2 and by McHugh J in D’Orta-Ekenaike v Victorian Legal Aid.3 In this evening’s paper, one of the topics I propose to discuss concerns the content of that traditional “relationship of intimate collaboration with the judges…in the high task of endeavouring to make successful the service of the law to the community.” In particular, I will refer to the perennial question about the extent to which a barrister is required to subordinate the client’s instructions about the pursuit, or defence, of litigation to the barrister’s obligation to promote the efficient administration of justice.
It is timely to revisit these issues in light of the recent commencement of the 2011 Barristers Rule on 23 December 2011, when that statutory instrument was gazetted under the Legal Profession Act 2007. I am encouraged to refer in a little detail to these rules because their application is not restricted to this State. In the preface of the 2011 Barristers Rule, r 3 provides that “these rules apply throughout Australia to all barristers”. Whatever may be the legal effect of that statement, I understand that it is likely to become an accurate statement of fact. I am informed that those bar associations around the country which have not yet adopted the same rules will likely do so in the near future.
Whilst the 2011 Barristers Rule involves no fundamental departure from the previous ethical rules, there are some interesting changes. Before I discuss those changes, I will briefly sketch the background to the statutory regulation of barristers in Queensland and make some observations about the legal status and effect of the 2011 Barristers Rule.
When the Bar Association was formed, it adopted the rules of the English Bar. In 1969, the Association circulated to its members a collection of ethical rulings made over the years. Subsequently Williams J (later Williams JA) included a collection of rules prepared with reference to the former English rules and the Bar Association’s ethical rulings as an appendix to the second edition of Harrison’s Law and Conduct of the Legal Profession.4 The Association subsequently participated in the development by the Australian Bar Association (“ABA”) of model rules and produced its own versions of the rules. Those rules contractually bound members of the Bar Association of Queensland, but they could not bind the relatively few barristers who were not members. The Supreme Court could exercise its inherent jurisdiction to discipline errant barristers, but the Bar Association lacked other practical means of disciplining non-members for less serious transgression which did not justify proceedings in the Supreme Court.
Statutory regulation of barristers’ ethics in Queensland commenced in 2004, when the Legal Profession Act 2004 authorised the making of rules specifying standards of conduct expected of persons who engage, or intend to engage, in legal practice as a barrister in Queensland. Pursuant to that provision, the Legal Profession (Barristers) Rule 2004 commenced on 1 July 2004. That Rule was subsequently replaced by the Legal Profession (Barristers) Rule 2007 under the Legal Profession Act 2007, which commenced on 1 July 2007. There was not much difference between the content of the 2004 and 2007 Rules.
In 2009, the Council of Australian Governments commenced a National Legal Profession Reform Project with a view to creating a uniform, nationwide system of regulating the legal profession. The ABA website notes that the ABA had by then already commenced work on a national set of conduct rules for barristers. The proposed national rules were finalised by the ABA in early February 2010, with remaining inter-jurisdictional differences concerning only minor matters. Those rules were duly adopted by the Bar Association of Queensland and are now in force. As I have indicated, it seems only a matter of time before they are in force throughout Australia.
The National Legal Profession Reform Project also resulted in a draft of the proposed Legal Profession National Law (“the National Law”), which was intended to create a nationwide framework for regulation of the legal profession, including the introduction of a new National Legal Services Board, Legal Services Commissioner and a publicly available Australian Legal Profession Register. Not all States have decided to adopt it and Queensland has not yet legislated to do so.
The introduction of a legislative framework for regulatory barristers’ ethics legislation facilitated the enforcement of ethical obligations, if only because the legislation applies to all barristers, not merely members of the Bar Association. But has the regulatory activity affected the content of barristers’ ethical obligations? The 2004 Barristers Rule adopted the rules of the Bar Association of Queensland as in force before the 2004 Act intervened. The 2004 and 2007 Acts and the 2007 Barristers Rule also did not introduce any major change in barristers’ core ethical obligations, although the legislation added to the mechanisms for dealing with ethical transgressions and the 2007 Act made important changes in the law concerning fees. The 2011 Barristers Rule also embodies the same core ethical obligations as its predecessors.
But there are some differences between the 2007 and 2011 rules. Furthermore, whilst the new statutory regime has not introduced any fundamental change in the nature of the profession or in the content of barristers’ ethical obligations, the mere expression of barristers’ ethical obligations in a set of rules made under legislative authority was a significant, indeed radical, change in direction.
To many lawyers, the concept of attempting to reduce the ethics of the advocate to a mere set of rules is problematic. Sir Gerard Brennan’s view was that it was not merely difficult but quite inappropriate. In a lecture entitled “Ethics and the Advocate”, which is quoted in Professional Responsibilities and Legal Ethics in Queensland,5 Sir Gerard Brennan observed:
“The first, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the barrister knows he or she should do: ethics are what the barrister does. They are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion. There is no really effective forum for their enforcement save individual acceptance and peer expectation. However, among those who see themselves as members of a profession, peer expectation is sufficient to maintain the profession’s ethical code. Ethics give practice expression to the purpose for which a profession exists, so a member who repudiates the ethical code in effect repudiates members of the profession.”
At first glance, the introduction of statutory instruments setting out ethical rules was wholly antithetical to those views, but reference to the empowering legislation and to the Rules themselves reveals a more complex picture. In this regard, I will refer to four, interrelated, features of the regulatory scheme.
First, under the 2007 Act the rules are made by the Bar Association, not by the executive or the Parliament. Section 217(a) of the Legal Profession Act 2007 provides that the main purposes of the relevant part, Pt 3.2, are “to promote the maintenance of high standards of profession conduct by providing for legal profession rules to regulate persons who may engage in legal practice, or the practice of foreign law, in this jurisdiction.” In the same part, s 220 empowers the Bar Association to make rules about legal practice in Queensland engaged in by Australian legal practitioners as barristers. Under s 222, “legal profession rules” (a Solicitors Rule or a Barristers Rule) may make provision about any aspect of legal practice, including standards of conduct which, in the case of the Barristers Rule, are expected of Australian legal practitioners and Government legal officers. The Bar Association makes such rules, but s 225 provides that the rules have no effect unless the Minister notifies the making of them. The legislation does not include any provision which empowers any entity other than the Bar Association to amend the rules. In short, the executive’s role is limited to bringing into force new rules made by the Bar Association. In this way, the bar itself remains responsible for framing ethical rules. In practice it also participates in the formal enforcement of those rules, though its role in investigating complaints is now performed upon referral from the Legal Services Commissioner. The Commission also decides whether to institute disciplinary proceedings.
Secondly, the legal effect of the rules, which constitute a statutory instrument, differs from conventional regulations. The rules do not have the status of subordinate legislation.6 They are also not expressed to have the force of law. Rather, s 227(1) provides that legal profession rules “are binding on Australian legal practitioners, Australian registered foreign lawyers and Government legal officers to whom they apply.” The effect of making the rules “binding” upon a confined class of persons in that way is not entirely clear, but the statutory context suggests that a breach of the rules does not itself necessarily attract any disciplinary sanction. Under s 456 of the 2007 Act, the disciplinary tribunal’s power to make disciplinary orders arises only if the tribunal is satisfied that the practitioner has engaged in “unsatisfactory professional conduct” or “professional misconduct”; and the effect of ss 227(2), 418, and 419 of the 2007 Act is that a failure to comply with legal profession rules does not itself amount to such conduct. Rather, those sections provide that a breach of a rule is capable of constituting unsatisfactory professional conduct or professional misconduct. In other words, it seems that a contravention of a rule may, but does not necessarily, amount to unsatisfactory professional conduct or professional misconduct, or attract any sanction.
An example of this aspect of the regulatory scheme may be seen in the Legal Service Commissioner’s decision in the disciplinary proceedings arising out of the proceedings against Dr Haneef. During those much publicised proceedings in 2007, complaints were made to the Legal Service Commissioner alleging that Dr Haneef’s barrister breached r 60 of the 2007 Barristers Rule by releasing a copy of a record of interview to a journalist without having obtained instructions to do so from the client. Dr Haneef subsequently ratified the barrister’s conduct. The Legal Services Commissioner considered that there was a breach of r 60 but that it did not warrant a disciplinary response because of the ‘exceptional circumstances’ of the case – most notably that publishing the interview, without further comment, did not interfere with the administration of justice in the particular circumstances.7 Accordingly no disciplinary action was taken against the barrister. The effect of the Commissioner’s findings was that, despite breaching the rule, the barrister had not behaved unethically.
This decision by the Commissioner could not authorise, and has not been regarded as authorising, barristers to disregard the rules according to their own conceptions of the requirements of justice. The decision was accompanied by the following warning in a media statement by the Commissioner on 1 February 2008:
“… no-one, least of all lawyers, should interpret the Commission’s decision in this matter to indicate any willingness on our part to regard failures to comply with the Legal Profession Rules, be they the Barristers Rules or the Solicitors Rules, with anything less than the utmost seriousness, much less as giving a go-ahead to treat them lightly.
…
Notwithstanding exceptional circumstances, such as those demonstrated in this case, solicitors or barristers who breach their professional Rules can expect in the normal course of events to find themselves answering to the disciplinary bodies.”
The curiosity that a breach of the ethical rules apparently will ordinarily, but not always, constitute unethical conduct, reflects the difficulty of attempting to codify ethics.
I note that barristers faced with exceptional cases which are thought to justify breach of a particular rule may now find a remedy in an interesting new rule, r 11 of the 2011 Barristers Rule, which allows the Bar Council to waive compliance with a particular rule. The legislation does not prescribe the consequences of such a waiver (or advert to this concept at all), but the apparent intent is that a potential or past breach of the rule which is waived in a particular case is itself incapable of amounting to unsatisfactory professional conduct or professional misconduct by the barrister concerned.
The third reason why the 2011 Barristers Rule does not reduce the advocate’s ethics to a mere set of rules is because the Rule itself makes that clear. The 2011 Barristers Rule does not purport to codify the ethical obligations of barristers. The relevant rules are set out in the attached table. Importantly, r 10 makes it clear that it is not a complete or detailed code of conduct for barristers. That is supplemented by the interpretative provisions in r 6, which require reference to the generally stated purpose, objects and principles in rr 2, 4 and 5. Ultimately, those foundational statements, rather than particular rules, supply the touchstone for barristers’ ethics.
Finally, s 13 of the 2007 Act preserves the inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners, and interstate legal practitioners who are engaged in legal practice in this jurisdiction. That provision reflects the status of persons admitted to the legal profession as officers of the Supreme Court, a status which is confirmed in s 38 of the 2007 Act. Ultimately, the Supreme Court may determine whether a barrister should be sanctioned for what the Court regards as unethical conduct. Section 13 expressly provides that the Court’s inherent jurisdiction and power “is not affected by anything in this Act.” Thus the Court retains ultimate control over the conduct of its officers, including its barristers.8
Efficient Administration of Justice
Although the 2011 Barristers Rule does not comprehensively prescribe the ethical obligations of barristers, there must only be very rare occasions when it is permissible for a barrister to depart from those rules. The differences between the 2011 the 2007 Rule therefore merit detailed examination, as I earlier indicated. However, in a paper of this scope it would be impractical to discuss every such difference. I propose to focus tonight mainly upon the provisions which, I suggest, reflect an increase in the emphasis upon the efficient administration of justice as an aspect of barristers’ paramount duty.
It has always been the case that barristers exercise independent forensic judgements in the proper administration of justice in a way which is sometimes contrary to their clients’ wishes, or, indeed, their clients’ express instructions. This is recognised in the 2011 Rule in rr 2, 4(c), 5(a), 5(e), and rr 41 and 42. Although rr 2 and 4 are new, rr 5, 41 and 42 substantially reproduce provisions in the 2007 Rule: see Preamble paragraph 5 and in rr 20 and 21.
There is nothing novel in these general rules. In Giannarelli v Wraith,9 Brennan J quoted Lord Eldon’s statement in November 1822 in Ex parte Lloyd,10 referring to counsel in the following terms:
“He is, however he may be represented by those who understand not his true situation, merely an officer assisting in the administration of justice, and acting under the impression, that truth is best discovered by powerful statements on both sides of the question.”
Again, in Moscati v Lawson, Alderson B said that “[t]he institution of barristers is principally to assist the Court in the dispensing of justice…”11 Similarly, in Giannarelli, Mason CJ, referred to the “…peculiar nature of the barrister’s responsibility when he appears for his client in litigation.”12 Mason CJ described this as being that counsel owes a duty to the court as well as to his client, the latter being subject to the former. Mason CJ went on to describe some consequences of the paramount duty to the court: it will require counsel to act in a variety of ways to the possible disadvantage of a client: “[c]ounsel must not mislead the court, cast unjustifiable aspersions on any party or witness, or withhold documents and authorities which detract from his client’s case. And if he notes any irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.”
The Chief Justice pointed out that the duty to the court was paramount and must be performed even if the client gives instructions to the contrary; and that duty “epitomi[s]es the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises and independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.”13 Wilson J14 and Dawson J15 make similar observations.
That barristers’ duties include an obligation to contribute to the efficient administration of justice is well established. Nevertheless, I suggest that reference to the comparative table attached to this paper reveals a greater emphasis on this aspect of barristers’ obligations in the 2011 Rule.
A possible example of this trend concerns provisions of the 2007 rules about “forensic judgments” (Preamble paragraph 5 and rr 20 and 21). Those rules are reflected in the 2011 Rule (rr 5, 41 and 42). However, the definition of “forensic judgments” in the 2007 Rule excluded decisions as to the commencement of proceedings, the joinder of parties, admissions or concessions of fact and other matters, although the term did include advice to make such decisions. Whilst r 11616 of the 2011 Barristers Rule includes definitions of most terms which mirror those in the 2007 Rule, the definition of “forensic judgments” has been omitted. If “forensic judgements” referred to in the 2011 Rule, in rr 5(e), 41 and 42, includes decisions about admissions of fact et cetera, then the omission of the definition may have enhanced the barrister’s capacity to contribute to the efficiency of litigation despite any contrary wish of the client.
More significantly, there are also some entirely new rules in the 2011 Barristers Rule. The general statements in rr 2 and 4 of the 2011 Rule had no direct counterpart in the 2007 Rule. Rule 12(b) of the 2011 Rule also focuses upon the role of the barrister in the administration of justice. The same theme is again emphasised in the new r 25. Whilst that new rule reflects general statements in the introduction about the underlying objectives of the rules, which did have a counterpart in the 2007 Rule, r 25 is important as an explicit statement of the barrister’s overriding duty to act independently in the interests of the administration of justice.
Furthermore, whilst most of the rules following r 25 under the heading “Duty to Court” reflect pre-existing rules, there are two noteworthy exceptions. The first is r 28. It had no counterpart in the 2007 Rule. Many barristers might in any event have regarded that rule as a statement of their duty to the Court, but its inclusion is yet another example of the increased emphasis in the 2011 Rule of the barrister’s paramount duty to justice.
The other noteworthy change in this section of the 2011 Rule is the omission of r 31 of the 2007 Rule. That omission must be understood in the context of r 35 of the 2011 Rule, which reflected r 32 of the 2007 Rule. Rule 35 is premised on the view that defence counsel is not obliged to notify the prosecution of a previous conviction even though defence counsel believes that the prosecution (and thus the Court) is unaware of it. Defence counsel’s uncomfortable position in such a case results from his or her duties to the client, including the duty to maintain the confidence of the client’s instructions. But the omission in the 2007 Rules of the former r 31 may have made defence counsel’s position even more uncomfortable. That rule protected a barrister who, for example, advocated mitigation of a sentence by relying upon evidence of the client’s previous good character, whilst at the same time the barrister failed to disclose other unfavourable aspects of the client’s character and history. The omission of former r 31 will no doubt focus the attention of barristers in such cases upon the obligation expressed in r 23 not to knowingly make a misleading statement to a Court on any matter.
Apparently of broader importance however, are the new provisions in rr 56, 57 and 58 of the 2011 Rule. These provisions replicate rules which the New South Wales Bar Association adopted some years ago, in January 2000, according to Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia.17 The author expresses the opinion, at p 526, that these rules were designed to prevent the lawyers’ delaying tactics which were criticised by the Full Court of the Federal Court in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (“White Industries”),18 upholding Goldberg J’s judgment.19 Goldberg J found that the action brought against White Industries was instituted, not to vindicate a claimed right, but to delay White Industries’ own proceedings for the recovery of money under a building contract. There was, Goldberg J found, an illegitimate strategy to continuously attempt to delay the progress of an action and to avoid it being set down for trial. Ross expresses the opinion in footnote 28 on p 526 that it was debatable whether the barrister’s behaviour in the White Industries case was unethical because the Queensland Bar rules on the use of the court process “are narrow in scope” and there was not any rule that “directly deals with the delay problem.”
Rules 57(b) and (e) now expressly require the barrister to seek to ensure that the work which the barrister is briefed to do is done so as to have the case ready to be heard as soon as practicable and so as to occupy a short a time in court as is reasonably necessary to advance and protect the client’s interests at stake in the case.
Those rules go further than rr 41 and 42, which did have counterparts in the 2007 Rule. Rule 41 deals with the independence of the judgments which the barrister must bring to bear. Rule 42 protects the barrister from an allegation of breach of duty to the client in exercising “forensic judgements” aimed at confining the issues and dealing with the case expeditiously. But r 42 is expressed in negative terms, being designed to protect the barrister from challenge by the client or instructing solicitor. Rules 56 to 58 are expressed in imperative terms, positively obliging the barrister to contribute to the efficient administration of justice in the ways described.
It would seem incongruous in the present era if barristers’ ethical obligations did not comprehend obligations to seek to expedite litigation. The incongruity would be most pronounced in the civil jurisdiction, having regard to the implied undertaking which each litigant is taken to give by UCPR r 5(3) to proceed in an expeditious way. Procedural rules of that kind do not exist for the discipline of practitioners, as Thomas JA observed in Quinlan v Rothwell.20 But it is unsurprising that the inroads upon the adversarial system involved in the significant increase in judicial involvement in case management are now reflected in express ethical rules.
In a paper entitled “A changing judiciary” given at the Judicial Conference of Australia on 7 April 2001, which was quoted by Thomas JA in Quinlan v Rothwell at [28], former Chief Justice Gleeson noted that “trial judges are expected to adopt a role most of their predecessors would have regarded as inappropriately interventionist”. Because the paramount duty of a barrister is to the court – the barrister being, as Kitto J observed, “in a relationship of intimate collaboration with the judges…in the high task of endeavouring to make successful the service of the law to the community” – we should not be surprised to see the changing role of the judge reflected in the development of ethical rules which bind barristers. If, as Wilson J observed in Westsand Pty Ltd v Johnson, “it is the duty of the court to avoid undue delay, expense and technicality”21 (reflecting UCPR r 5(2)), then barristers must surely have a significant role to play in assisting the fulfilment of that duty.
I do not suggest that these new rules displace the fundamental tenets of the adversarial system. Rather, the rules reflect the now established retreat from some of the more extreme features of the system. That retreat has been most pronounced in the civil jurisdiction. Correspondingly, the newly expressed rules appear to have much less impact in the criminal jurisdiction, where we still find the equivalent of the late, unlamented plea in civil cases of “not indebted as alleged or at all”. In the criminal jurisdiction, under the general plea of “not guilty” defence counsel ordinarily may rest upon the obligation of the prosecution to prove guilt beyond reasonable doubt. The courts regularly see competent defence counsel narrowing the issues for sound forensic reasons, but rules such as r 57(a) appear to have limited scope for application where an accused person exercises his or her right to put the prosecution to proof beyond reasonable doubt of all issues and insists that defence counsel maintains legal confidence in instructions, including any admission of guilt. So much is reflected in r 79.
It remains the case, however, that the ethical obligations of expedition, economy, and efficiency now reflected in rr 56 to 58 are expressed to apply in all cases, including criminal cases. It is to be hoped that the expression of these rules will have an effect in promoting the efficient administration of justice.
Advocating an unarguable case
It is useful, I think, to consider the potential significance of this emphasis in barristers’ ethical rules upon the efficient administration of justice in the context of the ethical obligations of a barrister who is instructed to pursue a hopeless case.
In New South Wales and the Australian Capital Territory there is legislation which precludes lawyers from pursuing hopeless damages claims. The relevant statutes provide that legal services on a claim, or in the defence of a claim, for damages must not be provided unless the legal practitioner associate responsible “reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success”.22 “Provable” is defined as meaning that the legal practitioner associate “reasonably believes that the material then available to him or her provides a proper basis for alleging that fact”.23 “Reasonable prospects of success” is not defined. In Degiorgio v Dunn (No 2) Barrett J construed that term, with reference to the Premier’s second reading speech and the apparent legislative purpose, as being equivalent to “so lacking in merit or substance as to be not fairly arguable”, and falling short of “likely to succeed”.24 Failure to comply with this provision is capable of amounting to unsatisfactory professional conduct or professional misconduct.25
I have not found any similar Queensland legislation. I will therefore discuss only the common law position.
In Steindl Nominees Pty Ltd v Laghaifar, Davies JA observed, after referring to the former ethical rules and to case law, that “[i]f it is counsel’s duty to exercise his or her own independent judgment upon which points will be argued it must also be his or her duty, in the exercise of that judgment, to decide whether there is any point which can be argued.”26 After referring to the greater care which must be taken in judging the arguability of questions of fact than of legal questions, Davies JA concluded that ultimately the question is the same whether it depends on fact or law: “if the case is plainly unarguable it is improper to argue it.”
Authorities in other jurisdictions, suggest a different view. In Ridehalgh v Horsefield, the Court of Appeal held that “…clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved”, and that it is “one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court.”27
43. Davies JA referred to Ridehalgh and to similar statements by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm)28 and by the Full Court of the Federal Court in Levick v Deputy Commissioner of Taxation,29 but rejected the view that a barrister may advocate what the barrister thinks is an unarguable case provided that the barrister does not believe the case to amount to an abuse of process. At [24], Davies JA accepted that it was appropriate to present a case which was “barely arguable (but arguable nevertheless) but most likely to fail…”, but that “…it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.” Williams JA, at [40], expressed agreement with the reasons of Davies JA, and Philippides J agreed with both Davies and Williams JJA.
The complicating feature of the decision is that Williams JA, at [41], referred with apparent approval to the following obiter dicta by Lord Hobhouse in Medcalf v Mardell:30
“So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalise the advocate for presenting his client’s case to the court would be contrary to the constitutional principles to which I have referred. The position is different if the court concludes that there has been improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.”
Lord Hobhouse also concluded at 143, (although Williams JA did not expressly refer to this conclusion) that “it is the duty of the advocate to present his client’s case even though he may think that it is hopeless and even though he may have advised his client that it is”. For that proposition, his Lordship cited Ridehalgh.31 Further support for that, or a similar, view may be found in various Australian decisions, including Levick v Deputy Commissioner of Taxation,32 Kumar v Minister for Immigration and Multicultural and Indigenous Affairs,33 and Bagshaw v Scott.34
This approach, under which a barrister may advocate, and may be obliged to advocate, a case which he or she considers is unarguable may be found in Harley v McDonald,35 a decision of the Privy Council in which Ridehalgh was cited with approval. Lord Hope of Craighead concluded that it was in the public interest that litigants who insisted on bringing their cases to court should be represented by legal practitioners “…however hopeless their cases may appear.” In “Civil Advocacy and the Dogma of Adversarialism”, Webb expressed the view that the Privy Council’s approach perhaps indicates that the advocate’s duty to assist in the efficient administration of justice “is rhetorical only”,36 the sole task of the advocate, in real terms, being to present the client’s case in the best light possible. He concluded, at p 229, that the result is a “bleak assessment of the capacity of the reformed civil procedure framework to dilute the adversarial approach to litigation and thereby lead to outcomes which are more just and more efficiently reached.”
Support for a more optimistic assessment about the contribution barristers may make to the efficient administration of justice is to be found in the provisions of the 2011 Barristers Rule which I have discussed.
Judicial support for the view expressed by Davies JA may also be found in Carson v Legal Services Commission,37 Tran v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)38 and Lemoto v Able Technical Pty Ltd.39 In Lemoto at [92], McColl JA, with whose reasons Hodgson and Ipp JJA agreed, first summarised some principles gleaned from the English and Australian authorities which considered the power to order legal practitioners to pay the costs of proceedings in which they have represented parties. At [92] (b) McColl JA proposed the following principle:
“ A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehalgh (at 233); Medcalf v Mardell [2003] 1 AC 120 at 143 [56], per Lord Hobhouse of Woodborough; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; 29 ACSR 21 (affirmed on appeal; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134); Levick v Commissioner of Taxation ; cf Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683;”
At [99], under the heading “The expeditious administration of justice”, her Honour concluded that this principle “ requires some elaboration.” Her Honour said:
“The proposition that a legal practitioner would not be subjected to a personal costs order simply because he or she acted for a party who pursued a claim or a defence which was doomed to fail reflected the first of the tensions referred to in Ridehalgh [(at 226)], ‘that lawyers should not be deterred from pursuing their client’s interests by fear of incurring a personal liability to their client’s opponents’. In Ridehalgh (at 234), the Court said:
“Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out) for the judge and not the lawyers to judge it.”
McColl JA then pointed out, at [101], that:
“The proposition that a lawyer who acted for a party who pursued a claim or a defence ‘plainly doomed to fail’ had not acted improperly ( Ridehalgh at 233) has been expressed in more qualified terms. In Re Cooke (1889) 5 TLR 407 at 408, Lord Esher MR said:
“[I]f the solicitor could not come to the certain and absolute opinion that the case was hopeless , it was his duty to inform his client of the risk he was running, and, having told him that and having advised him most strongly not to go on, if the client still insisted in going on the solicitor would be doing nothing dishonourable in taking his instructions.” (Emphasis added.)
After referring to authorities, at [110] — [113], McColl JA said in relation to Steindl:
“Although Williams JA agreed with Davies JA, he also expressed his agreement with Lord Hobhouse of Woodbrough’s statement in Medcalf (at [56]) concerning the entitlement of litigants to be heard notwithstanding the fact the court considered the advocate had been arguing a hopeless case. Philippides J agreed with Davies JA’s reasons and also with Williams JA’s further reasons.
It is plain, as Goldberg J accepted in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (at 231), that the proposition that ‘commencing or maintaining proceedings with no or no substantial prospects of success enlivens the jurisdiction to order a solicitor to pay the costs of a party” is expressed at a dangerous level of generality. Something more is required as both Goldberg J and Davies JA accepted. Sheller JA in Carson characterised it as improper for a solicitor to commence proceedings which were “futile or foredoomed to fail’. This accords with Davies JA’s proposition.
It is not necessary for the purpose of this judgment to resolve the tension between these decisions. Suffice it to say that Sheller JA’s observation in Carson and Davies JA’s qualification in Steindl appear to presage the philosophy underpinning Div 5C.
The cases in which legal practitioners have been ordered to pay the other party’s costs of the proceedings costs bear out the ‘plainly unarguable’ and ‘futility’ test.”
Of course what is a hopeless case is a matter for judgment. As Lord Steyn observed in Medcalf v Mardell:40
“The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the court allowed the matter to be tried.”
(Continued in part 2)
Footnotes
1. Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298 (Kitto J).
2. [2001] QCA 556 at [16].
3. (2005) 223 CLR 1, at 39-40.
4. That short summary of the history is taken from Stephen Corones, Nigel Stobbs and Mark Thomas, Professional Responsibilities and Legal Ethics in Queensland, (Law Book Co, 2008) at p 345.
5. Stephen Corones, Nigel Stobbs and Mark Thomas, Professional Responsibilities and Legal Ethics in Queensland, (Law Book Co, 2008) at p 340.
6. See Statutory Instruments Act 1992 (Qld) s 9 and Acts Interpretation Act 1954 (Qld) s 7.
7. Legal Services Commission website at www.lsc.qld.gov.au/__data/assets/pdf_file/0005/106349/lsc- decision-keim.pdf
8. The relationship between the Court’s role and the statutory scheme, including the legal profession rules, is not elucidated in the Legal Profession Act 2007 (Qld). See Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [64]-[65] and Legal Services Commissioner v Madden (No 2) [2008] QCA 301 at [84]-[88].
9. (1988) 165 CLR 543 at 579.
10. Noted in Ex parte Elsee (1830) Mont. 69 at p 70 n, at p 72.
11. Moscati v Lawson (1835) 1 M & R 455 (174 ER 156) (Alderson B), quoted by McHugh J in D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 at 39 [106].
12. Giannarelli v Wraith (1988) 165 CLR 543 at 555.
13. Giannarelli v Wraith (1988) 165 CLR 543 at 556.
14. Ibid at 572-573.
15. Ibid at 594.
16. This was r 117 in the 2011 Barristers Rule published on the Queensland Bar Association website at the time of this speech.
17. Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Butterworths, 5th ed, 2010) at p 525. There were similar provisions in r 23(A.15 — A.15B) of the NSW Solicitors’ Rule (“Revised Professional Conduct and Practices Rules 1995”).
18. (1998) 87 FCR 134.
19. (1998) 156 ALR 169.
20. [2002] 1 Qd R 647 at [29].
21. Westsand Pty Ltd v Johnson (Unreported, Supreme Court of Queensland, Wilson J, 15 November 1999) at [11].
22. Legal Profession Act 2004 (NSW) s 345(1); and similar provisions in Civil Law (Wrongs) Act 2002 (ACT) ss 188(1) and 188(2).
23. Legal Profession Act 2004 (NSW) s 345(2); and similar provisions in Civil Law (Wrongs) Act 2002 (ACT) s 186.
24. Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284, 293 at [28].
25. Legal Profession Act 2004 (NSW) s 347(1); Civil Law (Wrongs) Act 2002 (ACT) s 188(3).
26. Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [27].
27. Ridehalgh v Horsefield [1994] Ch 205 at 234.
28. (1998) 156 ALR 169 at 239.
29. (2000) 102 FCR 155.
30. [2003] 1 AC 120 at 143-144.
31. Ridehalgh v Horsefield [1994] Ch 205, 233-234.
32. (2000) 102 FCR 155 at 166 [44] (the Full Court of the Federal Court).
33. (2004) 133 FCR 582 (Mansfield J).
34. [2005] FCA 104 (Bennett J).
35. [2002] 1 NZLR 1.
36. Duncan Webb, ‘Civil Advocacy and the Dogma of Adversarialism’ (2004) 7(2) Legal Ethics 210, 227
37. [2000] NSWCA 308 at [113] (Hodgson CJ in Eq., Sheller JA and Giles JA agreeing).
38. [2006] FCA 199 at [15] (Weinberg J).
39. [2005] NSWCA 153 at [92(b)], as qualified at [94] — [114].
40. [2003] 1 AC 120 at 139.
