REGULATION OF GOVERNMENT LAWYERS

Transcription

1 REGULATION OF GOVERNMENT LAWYERS REPORT TO THE ATTORNEY-GENERAL By Susan Campbell and John Lynch 2009

2 : report to the Attorney-General 2009 ISBN John Lynch Crown Counsel and Susan Campbell Consultant Address: Level 25, 121 Exhibition Street, Melbourne, Victoria 3000 Phone: (03) Fax: (03) DX: Website: Copyright State of Victoria Department of Justice 2009 The publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.

3 TABLE OF CONTENTS EXECUTIVE SUMMARY 4 SUMMARY OF RECOMMENDATIONS 6 GLOSSARY OF ABBREVIATIONS 7 1. INTRODUCTION Background Terms of reference Consultation Process 9 2. GOVERNMENT LAWYERS IN LEGAL PRACTICE Role of government lawyers Profile of Government Lawyers in Legal Practice GOVERNMENT LAWYERS AND LEGAL PROFESSION REGULATION Regulation of government lawyers under the Legal Profession Act Principles of legal professional conduct Legal practitioners generally Lawyers in government service GOVERNMENT LAWYERS AND PUBLIC SECTOR REGULATION Public sector lawyers and the Public Administration Act Public sector ethics and values Public sector discipline and regulation FURTHER REGULATION OF GOVERNMENT LAWYERS Government lawyers and practising certificates Directions and Guidance notes CONCLUSION 33 Appendix A 35 CONSULTATIONS AND INTERVIEWS 35 Appendix B 38 TABLE OF COMPARATIVE JURISDICTIONS 38 Appendix C 39 RULES AND REGULATION OF GOVERNMENT LAWYERS 39 3

4 EXECUTIVE SUMMARY This Review has its origins in the 2002 National Practice Model Law Project of the Standing Committee of Attorneys-General. This Project developed nationally consistent standards and rules for the regulation of the legal profession and ultimately resulted in the development of the National Legal Profession Model Bill in Victoria implemented the Model Bill through the Legal Profession Act 2004 (LPA). The Model Bill and the LPA did not specifically address the regulation of government lawyers and the LPA retains the pre-existing exemption of government lawyers from the obligation to hold a practising certificate and the obligations which flow from that. The purpose of this Review therefore is to examine the current position regarding the regulation of lawyers employed by government or by statutory agencies whose work involves a form of legal practice. Examination of the LPA reveals that, although government lawyers are not required to hold a practising certificate even if their work constitutes legal practice, they are nonetheless bound by the general ethical and professional duties prescribed by common law and can be subject to the disciplinary regime created by the LPA. The Review therefore focussed specifically on the issue of whether government lawyers should be required to hold a practising certificate. The Review process involved extensive consultation with lawyers currently employed by government Departments and a number of statutory agencies, with staff of the Legal Services Board and bodies representing the profession. An analysis of the comparable position in other Australian jurisdictions, New Zealand and England and Wales was also conducted. The principal recommendation of the Review is that the current exemption of government lawyers from the obligation to hold a practising certificate is no longer appropriate and should be removed. Government lawyers constitute a significant sector of the legal profession and it is in their interests that they be recognised as meeting the same professional standards as all other lawyers. A survey of the equivalent legislation in other Australian jurisdictions and in the United Kingdom and New Zealand indicates that there is no adequate policy basis for retaining the exemption from the obligation to hold a practising certificate. An important obligation flowing from the holding of a practising certificate is the requirement to fulfil the Continuing Professional Development Rules applying to all other lawyers. If government lawyers are required to meet the same professional development obligations as other lawyers, this will enhance the quality of legal services provided to government and the professional status of government lawyers. The Review identifies a number of other advantages which it is believed will flow from the requirement for government lawyers to hold practising certificates. The holding of a practising certificate is one factor considered by the courts in determining whether legal advice provided to government by its in-house lawyers is protected by Legal Professional Privilege. Government lawyers who hold practising certificates will be entitled to provide prescribed pre-admission training for law graduates seeking to qualify for admission to practice and this capacity will enhance the recruitment of graduates into government practice. Generally the holding of a practising certificate will provide a degree of career flexibility and enable government lawyers to move from government practice to private or corporate practice if desired. The Review notes that not all legally qualified staff employed by government are engaged in work which could be described as legal practice. Clearly only those employees who are engaged in legal practice should be required to hold practising certificates and the Review provides a set of indicators which assists in determining which employees come within this category. The Review considers which type of practising certificate is appropriate for government lawyers and recommends that generally they should hold a corporate legal practitioner certificate. It recommends 4

5 that minor amendments be made to the Transport Accident Act 1986, the Accident Compensation Act 1985 and the State Trustees (State Owned Company) Act 1994 to make it clear that legal officers employed by the Transport Accident Commission, the Victorian Workcover Authority and State Trustees who hold corporate practising certificates are able to act for third parties if directed to do so by their employers. The Review concludes that the cost to government of obliging all government lawyers engaged in legal practice to hold a practising certificate will be minimal. The Review also makes recommendations regarding the structure of Legal Units within Departments and agencies to ensure as far as possible the capacity of government lawyers to provide independent professional advice. Finally the Review notes the role played by Guidance Notes issued by the Office of Legal Services Coordination within the Commonwealth Attorney-General s Department. It suggests that Guidance Notes could be introduced to provide guidance on professional standards to Victorian government lawyers. Since lawyers are employed in a range of departments and agencies, the Review suggests that the Victorian Government Solicitor s Office (VGSO) would be the appropriate body to produce such Notes for the assistance of all government lawyers, given the VGSO s role in providing legal services across Government. 5

6 SUMMARY OF RECOMMENDATIONS Recommendation 1: The current exemption for government lawyers from the requirement to hold practising certificates should be removed. Recommendation 2: As far as possible, the structure of a Legal Branch or Unit within a Department or government agency should follow a law firm model. This means that: lawyers within the Unit should report to the Head of the Unit who should hold a practising certificate; the Head of Unit should be directly accountable to the Department Secretary or Agency Head; advice requested by a business unit should be provided direct to the business unit; legal files should be housed separately from other department files and should be clearly identified as confidential legal files. Recommendation 3: Lawyers providing legal services should be identified as Lawyers or Legal Officers rather than as, for example, Policy Officers or Managers. Recommendation 4: Departments and agencies should ensure that a clear understanding of the role of government lawyers, in particular the independent nature of their advice, is developed and maintained. Recommendation 5: Government lawyers should take out a practising certificate if they undertake any of the following functions as part of their professional role: provision of legal advice, that is advice on the legal meaning or legal effect of legislation or documents; preparation of documents involving legal rights and obligations; conduct of litigation or proceedings before a court or tribunal; drafting and preparation of legislation, and settling of regulations, statutory instruments and other forms of subordinate legislation. Recommendation 6: The Position Descriptions of government lawyers engaged in legal practice should refer to the requirement to hold or be eligible to hold a practising certificate. Recommendation 7: The Transport Accident Act 1986, the Accident Compensation Act 1985 and the State Trustees (State Owned Company) Act 1994 should be amended to make it clear that a legal officer employed by the Transport Accident Commission, the Victorian Workcover Authority or State Trustees Limited who holds a corporate practising certificate is able to act for third parties if directed to do so by his or her employer. Recommendation 8: If the requirement to hold a practising certificate is introduced, the practising certificate fee should be paid by the Department or statutory authority. 6

7 Recommendation 9 The VGSO should develop a practice of issuing guidance notes for government lawyers on issues relevant to their legal practice. Recommenda tion 10: Government Legal Services should develop a pro bono service delivery model for government lawyers in consultation with relevant agencies. GLOSSARY OF ABBREVIATIONS Abbreviations used in this report AGS: Australian Government Solicitor CLE: Continuing Legal Education CPD: Continuing Professional Development GLG: Government Lawyers Group (a committee of the Law Institute Council) LIV: Law Institute of Victoria LPA: Legal Profession Act 2004 LPAR: Legal Profession (Admission) Rules 2008 LSB: Legal Services Board OLSC: Office of Legal Services Co-ordination OPP: Office of Public Prosecutions PAA: Public Administration Act 2004 SRO: State Revenue Office SSA: State Services Authority TAC: Transport Accident Commission VGS: Victorian Government Solicitor VGSO: Victorian Government Solicitor s Office VLA: Victoria Legal Aid VPS: Victorian Public Sector VPSA: Victorian Public Service Agreement 2006 VWA: Victorian Workcover Authority WRA: Workplace Relations Act 1996 (Cth) 7

8 1. INTRODUCTION 1.1 Background The Review of the Regulation of Government Lawyers (the Review) was commissioned by the Attorney- General for Victoria, the Hon Rob Hulls MP in February The Review has its origins in the 2002 National Practice Model Laws Project of the Standing Committee of Attorneys-General. This Project developed nationally consistent standards and rules for the regulation of the legal profession and ultimately resulted in the development of the National Legal Profession Model Bill in 2003 (the Model Bill). Victoria adopted the Model Bill which became the Legal Profession Act 2004 (LPA). The Model Bill did not specifically address the regulation of government lawyers. The Victorian Cabinet briefly considered the issue when the Legal Profession Bill was being considered for in-principle approval. Cabinet considered that the employment characteristics particular to government lawyers and the impact of including them within the scope of the then proposed LPA warranted further investigation. It was also decided to defer consideration of these issues pending completion of the review of postadmission legal training which was completed in The employment characteristics and regulatory issues identified at the time included: government lawyers had similar characteristics to corporate lawyers in that for the most part, their principal client was also their employer; government lawyers performed a range of functions not all of which could be regarded as legal services within the meaning of the LPA; government lawyers are generally exempt from a range of regulatory requirements imposed on legal practitioners in private and corporate legal practice, such as practising certificates, professional indemnity insurance, and fidelity fund levies and insurance. At about the same time, government lawyers were becoming increasingly organised within the mainstream profession. In October 2003, the Government Lawyers Group (GLG) was established as a committee of the Law Institute Council. Its mission was to foster and promote the professional development of government lawyers from all levels of federal, State and local government whether or not they held a practising certificate. The GLG subsequently became the Government Lawyers Section. In December 2004, the GLG published a position paper which set out a framework for the Group s future direction, and in November 2005 published the results of an on-line survey of government lawyers which identified a range of concerns among government lawyers including the provision of pro bono services, continuing professional development, practising certificates and ethics. 1 These issues were subsequently the subject of discussions and correspondence between the Law Institute of Victoria (LIV) and the Attorney-General. The Attorney-General s request for a review of the regulation of lawyers employed by the Victorian Government and by statutory agencies established under Victorian legislation should be seen in light of the national initiatives for the reform of the legal profession and the issues raised by the LIV. While this Review attempts to address the various issues noted above, its scope is limited to the extent that, for constitutional reasons, we were not able to consider the regulation of lawyers employed by the Commonwealth Government practising in Victoria. Similarly, we have not considered issues affecting lawyers employed within local government in any detail as this group was strictly outside our terms of reference. Our inquiries indicate that the issues relating to local government lawyers are essentially the same as those relating to lawyers employed by State Government Departments and agencies. 1. For a summary of the survey, see Government Lawyers Surveyed (2006) 80(03) LIJ 15. 8

9 1.2 Terms of reference The Attorney-General s terms of reference requested a review of the regulation of lawyers employed by the Victorian Government and by statutory agencies established under Victorian legislation. We were requested to identify and consider the current regulatory arrangements of government lawyers and to report on: whether it is desirable to regulate the professional activities of government lawyers having regard to their employment characteristics and to current professional issues; and if so, options for their regulation. The Attorney-General asked us to consider: whether government lawyers should be regulated to an equivalent level to those in private legal practice in areas such as: holding current practising certificates; and undertaking mandatory continuing professional development; whether regulatory options would enhance the quality and security of in-house legal services and advice, having regard to: existing public sector regulation; and the possible cost to Government of such options. We were requested to consult widely within Government and with key non-government stakeholders and to report by 31 July Consultation Process As noted, the Terms of Reference required us to consult widely within Government and with key non- Government stakeholders. The consultation process commenced in April 2007 by the Secretary of the Department of Justice writing to all other Departmental Secretaries, advising them of the Review and asking them to nominate appropriate persons within their Department whom we could interview. Following these letters, we arranged to interview representatives of all Departments. Broadly the persons we interviewed were senior legal officers or the directors of legal services units within Departments. We also arranged to interview representatives of the State Services Authority (SSA) and the larger statutory agencies, including the Office of Chief Parliamentary Counsel, the Office of Public Prosecutions, State Trustees, the Transport Accident Commission, the Victorian Workcover Authority, Victoria Legal Aid and Victoria Police. In addition we met with the Victorian Government Solicitor, the Manager of Government Legal Services, the Director of Civil Law Policy, Department of Justice and the Director of Consumer Affairs. We also met with senior staff from the State Revenue Office (SRO) (who subsequently provided us with a very helpful written submission), staff of the Legal Services Board and the Legal Services Commissioner, the Law Institute of Victoria, the Director of the Melbourne office of the Australian Government Solicitor and representatives of the Australian Corporate Lawyers Association. In total we conducted 28 face-to-face interviews and 10 telephone or discussions (see Appendix A). In the interviews with Departments and agencies, we sought details of the number of lawyers employed in the Department or agency who could be said to be engaging in legal practice, whether or not they hold practising certificates and the opinion of the interviewee on the issues specified in the Terms of Reference. 9

10 In the later part of the Review, we met with the Executive Committee of the LIV s Government Lawyers Section to discuss some specific issues and concerns. Shortly after many of these interviews, the issues were further discussed at a regular scheduled meeting of the Government Lawyers Forum, convened by the Executive Director, Legal and Equity, Department of Justice. We also obtained information from the United Kingdom and New Zealand on the system of regulation of government lawyers in those jurisdictions and have compiled details of the comparable position in all other Australian jurisdictions under the National Legal Profession Model Bill legislation to the extent that it has been introduced (Appendix B). 2. GOVERNMENT LAWYERS IN LEGAL PRACTICE 2.1 Role of government lawyers The government is a very special client and a lawyer instructed by the government faces particular issues and duties. 2 Departments and statutory agencies employ a large number of legally qualified staff but not all of them work in positions which require the use and application of their legal knowledge for the purpose of legal practice. Of those who hold positions requiring legal knowledge, a significant number work in policy development or other areas which could not be said to constitute legal practice. There would be no justification to consider professional regulation of this category of legal staff. In this Review, therefore, we have focussed on issues relating to those lawyers employed by government and statutory agencies whose work can be said to constitute legal practice and we use the term government lawyers to refer to this category of staff. We discuss in Section below the difficulties of defining this term and our recommended approach for those staff whose work combines both legal practice and other categories of legal work, such as policy development. In their professional role government lawyers share many characteristics and obligations with their private and corporate sector counterparts. All lawyers are bound by the fundamental ethical duties to the client, the court, the profession and the administration of justice (see Section 3.2.1). But the application of these duties may differ according to the context in which a lawyer practises. For example, a private practitioner has many clients and the duty to avoid a conflict of interest between clients may arise quite frequently and clearly. A corporate lawyer has one client only the corporation which employs him or her. The issue of conflict of interest is less likely to arise, although if the corporate lawyer is consulted by two separate corporate departments, he or she may receive conflicting instructions. But the lawyer s client is the corporation itself and this must dictate how the corporate lawyer handles advising different corporate departments (or the employing corporation and a related or subsidiary corporation). A government lawyer working in a statutory agency is unlikely to be confronted by a conflict of interest. But a lawyer working in the legal unit of a Department may frequently receive instructions or requests for advice from more than one business unit within the Department. Lawyers working in the VGSO are even more likely to confront this situation. In theory the government lawyer has one client: the Crown or the State. 3 This means that a government lawyer faced with conflicting or inconsistent instructions may face some particularly challenging issues. Although the underlying issue of Who is the client? is the same for government and corporate lawyers, a more abstract analysis is required of government lawyers who must try to identify the interests of the government as a whole. 2. Selway, B, The Duties of Lawyers Acting for Government (1999) 10 Public Law Review Ibid, p

11 Another factor in government legal practice, which exists also in corporate practice, is the relevance of policy. Some government lawyers may be able to work in the defined structure of a Legal Branch within the department or agency in order to insulate themselves from the intermingling of policy questions and legal questions. But not all government lawyers will be in a position to confine themselves to strictly legal work. Others hold positions where the lawyer is expected to work on policy development as well as legal issues. Similar issues arise for corporate lawyers asked to advise on business or management issues. In private legal practice, commercial lawyers may be expected to develop a familiarity with a client s business so that the lawyer s advice may take into account business objectives. But the great majority of private practitioners have little difficulty confining themselves to legal advice. This issue is of central importance when the client seeks to claim legal professional privilege over advice provided by the lawyer. The courts have emphasised that privilege may only be successfully claimed over legal advice and if the lawyer s role mingles policy or business advice with legal advice, privilege may not be upheld (see Section 5.1.3). The third factor which differentiates government lawyers on the one hand from their corporate and private colleagues on the other is that government lawyers owe a duty to assist their client in upholding the rule of law and advancing the public interest. Although all lawyers owe a duty to the administration of justice, and may not assist their clients to break the law, government itself has a duty to uphold the rule of law and advance the public interest. Government lawyers must therefore assist their client in this role. 4 This concept raises particular considerations for government lawyers. It is not for government lawyers to advance their personal view of what constitutes the public interest. They must not cross the line from giving advice in relation to the appropriateness of government processes to giving advice about the appropriateness of government policy choices. 5 But they are obliged to advise in the context of the accepted moral beliefs and practices of the relevant government system. 6 Issues and duties such as these rarely confront the private or corporate lawyer. The experienced government lawyers whom we interviewed for this Review were very conscious of all these aspects of their role and regarded the particular challenges of government legal practice as contributing to their professional and career satisfaction. 2.2 Profile of Government Lawyers in Legal Practice In our consultations we attempted to ascertain the approximate numbers of government lawyers employed in each Department or agency. For several reasons, the numbers are only approximate, but they do indicate the general size of the government lawyer sector, which is relevant to the potential cost of any changes in regulation which might be adopted. We estimate that there are approximately 175 government lawyers employed by Departments (including separate units such as the VGSO and the SRO). The statutory agencies in total employ approximately 600 government lawyers. However, if we subtract from this figure the 210 lawyers employed by Victoria Legal Aid (VLA) (which is separately regulated by its own legislation), the total for the agencies is 390. The great majority of these are employed by the Office of Public Prosecutions (OPP), the Transport Accident Commission (TAC) and the Victorian Workcover Authority (VWA). The total figure for statutory agencies includes 33 lawyers employed in smaller agencies and Boards whom we surveyed by telephone but did not formally interview. 4. De Gruchy, R, Australian Government Solicitor, Australian Government Lawyers Advancing the Public Interest, paper delivered at the 2007 Law Institute of Victoria Government Lawyers Conference, 6 July Selway, op.cit. p Selway, op.cit. p

12 The approximate total of government lawyers employed by Departments and statutory agencies, therefore, is A further 7-8 are understood to be employed by local government municipalities. As to the nature of the legal work carried out by government lawyers, it varies according to the role of the Department or agency but it includes; general legal advice advice on the interpretation of applicable legislation transactional work, including preparation of contracts and other commercial documents prosecutions and representation in tribunals such as VCAT drafting regulations and statutory instruments briefing of external counsel. In the process of preparation for the consultations, it became clear to us that a key issue would be whether government lawyers, although not currently obliged to do so, hold practising certificates issued by the Legal Services Board (LSB), so we included this question in our interviews. Approximately 200 of our total of government lawyers (excluding VLA) hold practising certificates, almost all of them being corporate legal practitioner certificates. A corporate legal practitioner is defined by the LPA s as an Australian legal practitioner who engages in legal practice as an employee of a person who, or body that, is not an Australian legal practitioner...or a law practice and who provides legal services only to, and for the purposes of, his or her employer. VLA employs about 215 lawyers. The Legal Aid Act 1978 deems VLA to be an incorporated legal practice and applies the LPA s provisions relating to trust moneys and fidelity cover to VLA s legal practice. Accordingly, the VLA Managing Director holds a full local practising certificate. Other VLA lawyers hold employee practising certificates. These arrangements reflect the fact that a major focus of VLA s activities is the direct provision of legal services to third parties, that is legally assisted persons. At least three other agencies, the TAC, VWA and State Trustees, also act for third party clients: the TAC and VWA for nominated driver defendants and employers, and State Trustees for administrators of estates. This raises issues about the appropriate type of practising certificates held by lawyers working in agencies such as these and we will return to this point later in this report. Consultation also indicated that government lawyers, with the exception of the VGSO and VLA, do not operate trust accounts. In addition, because the Victorian Government self-insures and because of the relatively low-risk nature of their work, Government legal practices generally do not hold professional indemnity insurance. The exception is VLA which obtains professional indemnity insurance through the Victorian Managed Insurance Authority. 3. GOVERNMENT LAWYERS AND LEGAL PROFESSION REGULATION 3.1 Regulation of government lawyers under the Legal Profession Act The extent to which government lawyers are regulated by the LPA is not immediately apparent. LPA s (1) contains the general prohibition on unqualified legal practice: A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. 7. In 2006 the Manager Government Legal Services compiled a Table of In-House Legal Capacity in relation to Departments only. In this survey lawyers are included according to the percentage of their time devoted to Legal Advising and Court Work so the resulting total is less than ours, where we have calculated numbers of individual staff whose work includes legal practice. 12

13 An Australian legal practitioner is defined in LPA s.1.2.3(a) as an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. But government lawyers are exempt from the prohibition in LPA s.2.2.2(1). By subsection (2) the prohibition does not apply to; (g) a person who does anything in the course of their employment with the Crown or a public authority or in the performance of duties under an appointment by the Governor in Council. Thus government lawyers, even those whose work unarguably amounts to engaging in legal practice, are not required by the Act to hold a practising certificate. This exemption has been carried over from previous legal profession legislation and is replicated to varying degrees in the legislation in other jurisdictions (see below). The exemption appears to have originated from introduction of the practising certificate system in the 1940s as a means of regulating solicitors trust accounts. The Legal Profession Practice Act 1958 required every solicitor who intended to practise to hold a current practising certificate. In Blackall v Trotter No.1 8, the Victorian Supreme Court held that the solicitor to the Insurance Commissioner was not required to hold a practising certificate because he was an officer of the Crown. In performing the duties of office, he was not engaged in legal practice on his own account and accordingly not a solicitor within the meaning of the 1958 Act. The Court noted that officers of the Crown were not included in the practising certificate scheme because the scheme was a means of effectuating trust account audits and examination which was assumed to be inapplicable to them. After the repeal of the 1958 Act, the Legal Practice Act 1996 s.315(1)(d) specifically provided that persons acting in the course of their employment with the Crown or a public authority were taken not to be engaged in legal practice and accordingly exempted from the requirement to hold a practising certificate. However, it appears that LPA Chapter 4, Complaints and Discipline, applies to government lawyers regardless of whether they hold a practising certificate. LPA s (1) provides: This Chapter applies to Australian lawyers and former Australian lawyers in relation to conduct occurring while they were Australian lawyers, but not Australian legal practitioners, in the same way as it applies to Australian legal practitioners and former Australian legal practitioners, and so applies with any necessary modifications. An Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law (LPA s.1.2.2(a)). Thus, all lawyers employed by government and public authorities who have been admitted to practice are subject to the Complaints and Discipline jurisdiction of the LPA regardless of whether they hold practising certificates. It should also be noted that the fact of admission makes the lawyer an officer of the Supreme Court (LPA s.2.3.9) and subject to the inherent jurisdiction of the Supreme Court. The scope of regulation under the LPA s Complaints and Discipline provisions and under the Court s inherent jurisdiction will be examined in the next section of this report. But the effect of such regulation is that the focus of our review became the relatively specific question of whether government lawyers should continue to be exempt from the prohibition on unqualified legal practice or whether they should be obliged to hold practising certificates. 8. [1969] VR

14 Mandatory Continuing Professional Development (CPD) All Victorian lawyers who are Australian legal practitioners are required to complete a prescribed amount of Continuing Professional Development (CPD) (solicitors and barristers). Each branch of the profession has passed Rules (with the approval of the LSB) which constitute professional rules within the meaning of LPA s Failure to comply with applicable professional rules is capable of constituting unsatisfactory professional conduct or professional misconduct (LPA ss.4.4.4(a)). As a consequence of the exemption of government lawyers from the obligation to hold a practising certificate, they are not subject to the CPD Rules which apply to their branch of the profession. (Although the great majority of government lawyers do solicitors work, a small number, such as lawyers in the Office of Chief Parliamentary Counsel, do work which would more closely align them with barristers.) The fact that under the present requirements government lawyers are not subject to any mandatory continuing profession development obligations is an important factor in our consideration of whether the exemption from practising certificates should be maintained. Comparison with other jurisdictions Despite the development of the Model Bill, the position of government lawyers, and in particular whether they are obliged to hold practising certificates if they are engaged in work which constitutes legal practice, varies. All jurisdictions maintain the prohibition on unqualified practice but the extent to which government lawyers are exempted from the prohibition varies. It also appears that, in those jurisdictions where government lawyers are not formally required to hold practising certificates, many choose to do so, as in Victoria. Appendix B is a Table of the relevant provisions in other Australian jurisdictions. Australian Capital Territory The prohibition on unqualified practice does not apply to a public employee, a member of the Australian Public Service or a member of the defence force preparing an instrument, or carrying out any other activity, in the course of his or her duties. New South Wales Government lawyers are exempt from the prohibition on unqualified practice and so are not required by the Legal Profession Act 2004 (NSW) to hold a practising certificate. However it is government policy that all government lawyers who might be said to be engaging in legal practice should in fact take out practising certificates. Northern Territory There is no provision exempting government lawyers from the prohibition and other provisions referring to government lawyers practising certificates mean that they are required to hold a certificate. Queensland The prohibition does not apply to government legal officers engaged in government work (as defined in the legislation). South Australia There is no provision exempting government lawyers from the prohibition on unqualified practice. Government lawyers are therefore required to hold a practising certificate. Tasmania Under the Legal Profession Act 2007 (TAS), the prohibition does not apply to legal practice engaged in pursuant to employment under the State Service Act

15 Western Australia Under the Legal Profession Act 2008 (WA) the prohibition does not apply to a public officer doing legal work in the course of his or her duties (as defined in the legislation). Commonwealth The issues relating to lawyers employed by the Commonwealth Government and Commonwealth statutory agencies are obviously different from those affecting their State and Territory counterparts. Commonwealth lawyers do not have a home jurisdiction to which they could be answerable but it may not be constitutional for State and Territory legislatures to require Commonwealth government lawyers practising within their jurisdiction to hold a practising certificate. And as a matter of practicality, as Commonwealth employees may be posted to offices across Australia, it would be extremely inconvenient if Commonwealth lawyers were required to comply with a different regulatory regime according to the differing locations of the offices to which they were assigned. Our inquiries indicate that the Commonwealth Office of Legal Services Co-ordination within the Attorney- General s Department has directed Departments and agencies to make their own decision as to whether their legal employees should take out a practising certificate in the jurisdiction in which they work. We understand that the number of Commonwealth lawyers who in fact hold practising certificates is very low. Special provisions govern the position of lawyers employed in the Attorney-General s Department and the Australian Government Solicitor s office. Under the Judiciary Act 1903 (Cth), both categories of lawyers are not subject to a law of a State or Territory that relates to legal practitioners except to the extent that such laws impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts or provide for disciplinary proceedings in relation to the misconduct of legal practitioners. 9 Thus the position of these lawyers is in effect the same as that of Victorian government lawyers under our present legislation: they are not required to take out practising certificates but may be subject to the professional discipline regime of the State or Territory where they practise. England and Wales Lawyers working in Government Departments and in some statutory agencies are all employed by the Government Legal Service. They are subject to the general regulation of the professional bodies but solicitors are exempt from the requirement to hold a practising certificate, although barristers are required by the Bar Council to hold a certificate. New Zealand There is no special provision for government lawyers. They are required to hold a practising certificate and are subject to the same regulatory regime as all other practitioners. 3.2 Principles of legal professional conduct Legal practitioners generally The common law imposes on lawyers four traditional categories of ethical or professional conduct duties:- the duty to the client; the duty to the court; the duty to other practitioners; and the duty to the administration of justice. 9. ss.55e and 55Q 15

16 Duty to the client The fundamental duty to the client is to act in the client s interest, within the limits imposed by the law (and by other duties). This therefore requires the lawyer to be competent (not to accept a retainer unless the lawyer has the skill and knowledge to carry it out); to maintain the client s confidences (the duty of confidentiality); and to avoid conflicts of interest (the duty of loyalty). Duty to the court This is often referred to as the duty of candour, or the duty not to mislead the court. Thus a lawyer may not make a statement of fact to the court which he or she knows to be incorrect or untrue, even though he or she may have been expressly instructed to do so by the client. Similarly the lawyer may not lead evidence which he or she knows to be untrue (such as a fabricated alibi) or submit false documents, such as affidavits. The duty even extends to forbidding lawyers from creating a misleading impression in the mind of the court by statements which are half-truths. The duty to the court takes precedence over the duty to the client, so that a lawyer may not mislead the court for the purpose of advancing the client s interest. The duty is founded on the lawyer s role as an officer of the court and has been described as a touchstone of the adversary system. 10 Duty to other practitioners This encompasses acting with honesty, fairness and courtesy in dealing with other practitioners and includes honouring undertakings. Once again it can be seen that this duty may limit a lawyer s capacity to advance the client s interest. Duty to the administration of justice This duty is broader than the duty to the court. The fundamental principle is that a lawyer must uphold the law, and must act lawfully. However it can also be seen to be inclusive of the duty to the court, because it includes a duty not to abuse the process of the court, by, for example, commencing civil proceedings which have no legal foundation 11 or by engaging in unnecessary delay and thereby wasting the court s and the community s time and money. These common law principles of a lawyer s ethical obligations underlie the concepts of unsatisfactory professional conduct and professional misconduct. These concepts can be the subject of disciplinary proceedings under LPA Chapter 4. This chapter applies to Australian lawyers, as well as to legal practitioners, (see Section 3.1 above). Government lawyers, as officers of the court (LPA s.2.3.9) are bound by these common law duties and may be the subject of complaints under LPA Chapter 4 if they breach them. Professional Conduct Rules Both professional associations have passed professional rules governing Professional Conduct and Practice. 12 These rules apply to Australian legal practitioners, that is, those who hold a practising certificate as either a solicitor or a barrister. Both sets of rules have two basic functions. They elaborate upon the common law duties by dissecting each duty into its specific elements and providing examples. Secondly, they include rules on issues such as costs and fees, which would not normally be regarded as the subject of ethical duties but rather are 10. Dal Pont, G, Lawyers Professional Responsibility (3 rd ed), Lawbook Co, Sydney, 2006, p Flower & Hart (a firm) v White Industries (Qld) Pty. Ltd. (1999) 87 FCR Law Institute of Victoria, Professional Conduct and Practice Rules 2005; Victorian Bar Inc, Practice Rules

17 rules of practice. For example, the Law Institute Rules include rules on such matters as hours of practice and practice names 13 while the Bar Rules cover the administration of fees and the role of clerks. 14 Because the professional conduct rules apply to Australian legal practitioners, they do not apply to government lawyers unless they have chosen to take out a practising certificate Lawyers in government service As well as the duties noted above, Government lawyers are also required to comply with the ethical duties of public servants. The public sector values of responsiveness, integrity, impartiality, accountability, respect, leadership and commitment to human rights are contained in s.7 of the Public Administration Act 2004 (PAA). The key ethical duties of public servants have been summarised by Selway 15 as follows: Selflessness Integrity Objectivity Honesty Legality Decisions should be made solely in terms of the public interest. Decisions should not be based upon any financial gain to the decision-maker, his or her family or friends. Officials should not be under any financial or other obligations to outside individuals or organisations that might influence them in the performance of their official duties. Officials should make choices on merit. Officials have a duty to disclose any conflicts of interest and to take steps to resolve the conflict in a way that protects the public interest. Officials have a duty to comply with the law and with any lawful direction given to them. Government lawyers also have particular professional duties to the judicial system, judicial independence and some special considerations relating to government legal practice. Selway summarises these as follows: Duty to the judicial system. Duty relating to judicial independence Special considerations relating to government practice The Crown is expected to be a model litigant. Government lawyers have duties to the court A government lawyer (including the Attorney-General) has a duty to protect and safeguard the independence of the judiciary. Government lawyers are subject to the other ethical duties of the profession but only to the extent they are properly applicable. For example, it would not be considered unethical for a government lawyer carrying out an investigation pursuant to statute to communicate with an unrepresented person. 3.3 Lawyers discipline and complaints: principles and structures Misconduct and unsatisfactory conduct As noted in Section 3.1, government lawyers who are admitted to the profession are subject to the inherent jurisdiction of the Supreme Court as officers of the Court. This means that they may be sanctioned by the Supreme Court for misconduct, that is conduct which would reasonably be regarded 13. Rule Part VIII 15. Op. cit., p

18 as disgraceful or dishonourable by professional brethren of good repute and competency. 16 Sanctions could include striking a lawyer off the roll of practitioners. In addition, LPA ss.4.4.3, and define misconduct as including: unsatisfactory conduct which amounts to a substantial or consistent failure to reach reasonable standards of competence and diligence; conduct (whether occurring within a law practice or otherwise) which would justify a finding that a person was not a fit and proper person to practise law; wilful or reckless contravention of the LPA or regulations; committing serious offences, tax offences or offences involving dishonesty; becoming insolvent; becoming disqualified from managing a corporation; wilful or reckless failure to comply with a condition of a practising certificate; and failure to comply with certain undertakings. Government lawyers may also be guilty of unsatisfactory conduct which LPA s defines as conduct... that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Unsatisfactory conduct is generally less serious types of conduct and includes a number of the behaviours noted above (LPA s.4.4.4, 4.4.5) The Legal Profession Act disciplinary framework The behaviour of government lawyers may be investigated by the Legal Services Commissioner or a prescribed body such as the LIV and the Victorian Bar (LPA Part 4.4 Div 3). In investigating a complaint against a government lawyer, the Commissioner or her delegate may require the lawyer to provide a written explanation or produce relevant documents (LPA s ), and depending on the seriousness of the matter, take no action or refer the complaint to the Legal Practice List of VCAT (LPA s ). VCAT may make a recommendation to the Supreme Court that a government lawyer be struck off the roll of practitioners, or may suspend or cancel his or her practising certificate, or impose conditions, restrictions or limitations on a practising certificate (LPA s ). VCAT may also make a wide range of other orders including fining a government lawyer up to $10,000, ordering the lawyer to undergo further legal education, supervised legal practice or periodic inspection. VCAT may also reprimand or admonish the lawyer (LPA s ). In addition, the LSB may amend, suspend or cancel a government lawyer s practising certificate if it considers that the lawyer is no longer a fit and proper person to hold a practising certificate, or if appropriate arrangements have not been made in relation to the lawyer s professional indemnity insurance (LPA ss ). 4. GOVERNMENT LAWYERS AND PUBLIC SECTOR REGULATION 4.1 Public sector lawyers and the Public Administration Act The PAA regulates the public sector, that is the public service, public entities (bodies created by legislation, the Governor in Council or a minister and owned by government such as statutory authorities, or entities where government has control of a board of directors such as corporations and incorporated associations), and special bodies (bodies which operate with a level of autonomy in their functions, such as the Ombudsman, the Auditor-General and Victoria Police). 16. Re a Solicitor [1912] 1 KB 302,

19 The PAA also creates a small category of exempt bodies to which the Act does not broadly apply, such as the courts, local government, universities, the OPP, parliamentary committees and inter-jurisdictional and intergovernmental entities. The OPP s status as an exempt body which is not broadly subject to the PAA is subject to s.40(3) of the Public Prosecutions Act 1994 which deems OPP staff to be employed under the PAA. It follows that lawyers employed within the public sector are subject to the provisions of the PAA. As a result, government lawyers are bound by a range of public sector values and principles intended to ensure the provision of frank and impartial advice, and codes of conduct, and are subject to particular disciplinary and regulatory provisions. 4.2 Public sector ethics and values Public sector values and employment principles Our consultation indicated that it was generally accepted that the statutory public sector values and employment principles are not inconsistent with the principles of legal professional conduct set out in Section 3.2.1, although the two sets of principles do have different focuses. As noted in Section 3.2.2, the seven key public sector values of responsiveness, integrity, impartiality, accountability, respect, leadership and commitment to human rights are set out in PAA s.7. Although the values do not of themselves create any legal rights or give rise to any civil cause of action, Department Secretaries and other public sector body heads are required to promote the values. Public sector employment principles are intended to ensure that employment decisions are merit based, and that employees are treated fairly and have equal employment opportunity and reasonable avenues of redress against unfair or unreasonable treatment. The employment principles also oblige public service heads to foster the development of a career public service (PAA s.8) Codes of conduct The Public Sector Standards Commissioner, a member of the SSA, may issue codes of conduct to promote adherence to the public sector values (PAA s.63). Codes of conduct are binding on public sector employees and other public officials. A contravention of the code can constitute misconduct. The current principal code of conduct is contained in Code of Conduct for Victorian Public Sector Employees (No.1) The 2007 Code prescribes the behaviour expected of public sector employees by describing the behaviours which meet the public sector values in PAA s Public sector discipline and regulation Regulatory and disciplinary principles and structure Victorian Department Secretaries and other VPS heads have all the powers and duties of an employer on behalf of the Crown, including assigning work and discipline. These powers must be exercised in accordance with the public sector values, codes of conduct and public sector employment principles noted above (PAA s.20). Public sector employment heads are bound by the public sector employment principles noted above including the requirements for employment processes which ensure merit-based employment decisions and fair and reasonable treatment of public sector employees (PAA s.8). The SSA has developed binding standards in relation to the public sector employment principles in PAA s.8, as well as guidelines to assist public sector organisations in the application of the standards. 17 As well as the PAA, VPS employment is also governed by the Victorian Public Service Agreement 2006 (VPSA) which is made under the Workplace Relations Act 1996 (Cth)(WRA) accessed 11/7/07 19

20 Clause 13 of the VPSA applies s.170cm (now s.661) of the WRA and allows termination of employment for reasons set out in PAA s.33. Grounds for termination include redundancy, criminal behaviour, serious misconduct, inefficiency and incompetence, and abandonment of employment (PAA s.33(1)). Serious misconduct is not defined in the PAA. However, WRA s.661 describes serious misconduct as misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period. This definition has been held to be broadly consistent with its definition at common law. 18 VPSA clause 13 also sets out notice periods and other procedural aspects relating to employment termination. The combined effect of PAA ss. 8, 20 and 33 requires Departmental Secretaries and other VPS heads to afford fair and reasonable treatment to an employee who is to be or is being dismissed. 19 This is reinforced by VPSA clause 17 which requires VPS employees to be afforded procedural fairness for matters involving unsatisfactory work performance or behaviour. Regulations may be made to establish procedures for dealing with allegations of employee misconduct, and to impose a disciplinary regime (PAA s.22). Public servants have a right to have a review of any action taken in relation to their employment (PAA s.64). The Public Administration (Review of Actions) Regulations 2005 prescribe procedures for reviewing actions relating to the employment of public sector employees. These include an initial departmental review process and referral to the Public Sector Standards Commissioner Are the LPA and PAA disciplinary principles and structures inconsistent? The fact that lawyers who are employed within the VPS to provide legal services will be regulated by both the LPA and the PAA raises the question of whether there could be inconsistencies between the two regulatory regimes. Our consultations indicated general acceptance that the systems operate satisfactorily side-by-side. Most interviewees felt there was a degree of compatibility and congruency between the LPA and the PAA in this regard. A number of interviewees noted that corporate lawyers faced similar issues in that they are regulated under the Corporations Law and the LPA. It was also felt that other professional occupations within the VPS faced the same issue as government lawyers: occupational regulation with regard to the performance of their professional activities, and regulation under the PAA with regard to their activities as public sector employees. These responses probably reflect the different focuses of the LPA and the PAA. The disciplinary and regulatory arrangements in the PAA may be seen in the context of the PAA s purpose in recognising that the fundamental role of the public sector is to serve the public interest. It was noted in the Bill s Second Reading Speech that an objective and impartial public service is fundamental to the Westminster system of government since loss of impartiality ultimately leads to an erosion of trust in government. To this end, the PAA is intended to strengthen the principles of public sector employment and the need to provide a more integrated service delivery across government. 20 On the other hand, the disciplinary and regulatory structures in the LPA are directed at lawyers relationships with and obligations to the client, the community and the court. Conduct which constitutes unsatisfactory professional conduct and professional misconduct includes breaches of standards of 18. Paras v Department of Infrastructure [2006] FCA 622 (Unreported, Young J, 19 May 2006), [10]. Note that regulations may be made under the PAA to establish procedures for dealing with allegations of misconduct. For these purposes, misconduct is defined as improper conduct, a contravention of a lawful direction, the improper use of office for personal gain and the improper use of information (PAA s.22). 19. Ibid. [6]. Courts will also imply a duty on public sector employers to comply with procedural fairness before dismissing an employee: Jarratt v Commissioner for Police for NSW (2005) 221 ALR Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2004 (Steve Bracks, Premier). 20

21 competence and diligence which the public is entitled to expect from a lawyer, and conduct which justifies a finding that a lawyer is not a fit and proper person to engage in legal practice (LPA ss ). In common with other professional occupations, lawyers are required to apply their utmost skill and diligence in carrying out their client s instructions and to devote themselves entirely to their client s cause. The LPA imposes additional duties on lawyers which they owe to the court, the profession and the general public. As noted in Section 3.2.1, these duties can prevail over the duty to the client. For example, lawyers must not breach undertakings, interfere with the course of justice, commence proceedings improperly or knowingly mislead the court even if this would benefit the client. These additional duties are said to protect the community from a powerful and potentially dangerous occupational group. Action taken against a lawyer for professional misconduct is seen primarily as protective of the community, rather than as punishment for the lawyer. 21 As a consequence of the different focuses of the LPA and the PAA, there may well be occasions when the conduct of a public sector employee could result in termination under PAA s.33, but would not necessarily be considered professional misconduct or unsatisfactory conduct under LPA. Similarly, disciplinary action against a government lawyer under the LPA may not necessarily result in termination under PAA s.33. In summary, the disciplinary principles and structures in the LPA are directed at maintaining lawyers external relationships with their clients, the community and the court while those in the PAA are directed at the broader public interest. These differences can be readily accommodated within the existing legislative structures. 5. FURTHER REGULATION OF GOVERNMENT LAWYERS 5.1 Government lawyers and practising certificates Should the current exemption be retained? Our review of the available authorities, and of interstate and overseas jurisdictions, did not elicit an adequate basis for retaining the current exemption from government lawyers holding practising certificates. The issue appears to have been dealt with on an ad hoc basis in the various jurisdictions, particularly following the reforms to legal profession regulation in a number of jurisdictions which began in the 1990s. In Section 3.1 above, we noted that the exemption of government lawyers in Victoria from the obligation to hold a practising certificate appears to have originated from the identification of practising certificates with the regulation of trust accounts. There was also a suggestion in Blackall v Trotter No.1 22 that the solicitor to the Insurance Commissioner was not obliged to hold a practising certificate because he was an officer of the Crown. In England and Wales, the exemption of government lawyers from the practising certificate requirement apparently stems from the view that the legal business of the Crown should be able to be carried out without regulatory interference. 23 In other words there were echoes of the constitutional concept that legislation should not bind the Crown. If the original rationale for the introduction of practising certificates was as a mechanism for the regulation of trust accounts, their function has clearly extended beyond this. Practising certificates are now used as a device for a far broader regulation of legal practitioners. Under the current LPA, for example, the LSB may investigate the suitability of a practitioner to hold or renew a practising certificate (LPA s.2.4.4). Furthermore, practitioners practising as barristers (since 1996), as employees or as corporate 21. Swinburn v David Syme & Co [1909] VLR 539, ; re Woolf s Bill of Costs [1911] VLR 375, 383; Southern Law Society v Westbrook (1910) 10 CLR 609, 625 (Isaacs J); re B (a Solicitor) [1986] VR 695, 698; re S (a Solicitor) [1985] VR 343, [1969] VR Information provided by the Government Legal Service, London 21

22 legal practitioners are required to hold practising certificates even though they do not operate a trust account (LPA s.2.4.3(3)). If the exemption of government lawyers from the practising certificate regime is an echo of the constitutional position of the Crown, this may have been appropriate, as the High Court has observed in an analogous context, for so long as the Crown encompassed little more than the Sovereign, his or her direct representatives and the basic organs of government. 24 But a special position for government lawyers seems inappropriate in contemporary society where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and when it is a commonplace for government instrumentalities, their servants and agents...to compete and have commercial dealings on the same basis as private enterprise. 25 A final consideration in favour of maintaining the exemption of government lawyers from the practising certificate requirement might have been the maintenance of national consistency under the National Legal Profession scheme. But, as we have identified in Section 3.1, the position is not uniform throughout Australia. We have therefore concluded that there is no compelling argument in favour of retaining the exemption of government lawyers from the requirement to hold a practising certificate and, as the following paragraphs demonstrate, a number of arguments in favour of removing the exemption. The exemption contained in s (2)(g) of the Legal Profession Act 2004 should be repealed accordingly. 26 Recommendation 1: The current exemption for government lawyers from the requirement to hold practising certificates should be removed Practising certificates and professional development The starting point for a discussion of the professional advantages for a government lawyer in holding a practising certificate is the fact that, on our estimate, more than one-third of Victorian government lawyers currently choose to hold a certificate. (In the survey of Government Lawyers conducted by the Law Institute of Victoria in 2005, 47% of respondents said they held a practising certificate. We shall discuss this survey in more detail below.) These figures indicate clearly the significance of a practising certificate for many government lawyers. Many see it as an important indicator of their commitment to professionalism. As one senior Departmental lawyer said, It is important to belong to a profession with an ethical code and accountability to a set of ideals. A commonly given reason for holding a practising certificate is its relevance as a factor in a claim for Legal Professional Privilege, which will be discussed in Section There is also an argument that the current distinction between private and corporate practitioners, who are required to hold a practising certificate, and government lawyers who are not, represents a distinction in status with government lawyers being perceived as of lower status. This may act as a disincentive to practitioners considering moving from private practice into government. They may certainly see it as a barrier to their capacity to move from government practice to private practice. 24. Bropho v Western Australia [1990] HCA 24 para 14; (1990) 171 CLR 1 para ibid. para The paragraph could probably be repealed. A question was raised during consultation as to whether LPA s.2.2.2(2)(g) should be retained to provide protection for a small number of non-lawyers working as paralegals providing legal services. We do not think that this would be the case since paralegals work must be supervised by qualified lawyers. 22

23 In practical terms, if a government lawyer does not hold a practising certificate for three years then wishes to move into private practice, the lawyer may be caught by the provision in the Law Institute s Continuing Professional Development Rules 2008 imposing requirements on lawyers returning to practice. 27 In general terms, if government lawyers are required, like all other practitioners, to hold a practising certificate, this will enhance their capacity to deal on equal terms with the private profession, either as opponents in litigation or transactional work, or when they are briefing counsel or instructing a panel firm. Another, more defined aspect of professional development which flows from the holding of a practising certificate is the imposition of professional rules (discussed in Section 3.2.1), including compulsory professional development rules. As mentioned in Section 3.1, practitioners holding a practising certificate (whether from the LIV or the Bar) are obliged to complete a minimum of ten hours per year of CPD. The object of the Rules is to ensure as far as possible that practitioners maintain and develop their professional skills, competence and ethical standards for the benefit of their clients and the community. The Rules define a CPD activity as an activity of significant intellectual or practical content dealing primarily with the practice of law. 28 The new Rules, which commenced on 1 April 2008, prescribe that every year a practitioner must complete a minimum of one hour of CPD in each of four fields Ethics and Professional Responsibility; Professional Skills; Substantive Law; and Practice Management and Business Skills. 29 It goes without saying that, in the case of employee lawyers, their employer also benefits from the increased professional skills, competence and ethical standards of their employees. Thus Government itself, as well as its lawyers, will benefit if government lawyers are required to hold practising certificates and therefore to fulfil the obligations prescribed by the CPD Rules. Those government lawyers who already hold practising certificates currently meet their CPD obligations. It has been suggested, for example in the LIV Government Lawyers Survey, that CPD activities conducted by the LIV and commercial providers are not always relevant to government practice. However, most of our interviewees said that they had no trouble meeting their CPD obligations through attending the regular seminars offered by the VGSO, conferences and some lunchtime seminars offered by the larger law firms. The Australian Corporate Lawyers Association also offers a range of seminars and conferences relevant to government lawyers. Furthermore, the LIV Government Lawyers Section is developing a CPD program designed for government lawyers. The obligation to fulfil CPD requirements as a consequence of holding a practising certificate is probably the most compelling single argument in favour of the introduction of a requirement that all government lawyers engaging in legal practice must hold a practising certificate Practising certificates and legal professional privilege A privilege is essentially a right to resist disclosing information that would otherwise be ordered to be disclosed. 30 The law recognises a number of privileges, at common law and by statute, for example, the privilege against self-incrimination, public interest immunity (formerly called Crown privilege ) and privileges arising from confidential relationships, between priest and penitent, doctor and patient, husband and wife, lawyer and client. The scope and application of these privileges vary. Some are available only in civil 27. Rules although the LIV can presumably exempt the practitioner from the requirements of these Rules in appropriate circumstances. 28. Law Institute of Victoria, Continuing Professional Development Rules 2008, Rule 4.1(a); Victorian Bar Inc, Continuing Professional Development Rules 2008, Rule 3(a). 29. LIV, ibid, Rule 5.2; Victorian Bar, ibid, Rule Gans, J and Palmer, A, Australian Principles of Evidence (2 nd ed) Cavendish, Definition cited by the Australian Law Reform Commission, Discussion Paper 69, Review of the Uniform Evidence Acts, 2005, para 13.1 and Report 102, Uniform Evidence Law, 2005, para

24 proceedings, others in criminal and civil proceedings; some are available to protect against disclosure in administrative investigations. The privilege between lawyer and client exists in Victoria under the common law and is known as Legal Professional Privilege. In those jurisdictions where the Uniform Evidence Act has been adopted, the term Client Legal Privilege is used because it more accurately reflects the fact that the privilege is that of the client, not the lawyer. We understand that Victoria may in due course adopt the Uniform Evidence Act but as the common law relating to Legal Professional Privilege continues to apply, we shall use this term. What is Legal Professional Privilege? Legal professional privilege is a substantive doctrine of law which enables a client, or a lawyer on the client s behalf, to withhold from production a document which would reveal confidential communications between the client and the lawyer made for the dominant purpose of the client receiving legal advice or for the dominant purpose of use in relation to existing or anticipated legal proceedings. Thus the privilege may enable a party to litigation to withhold documents sought in the discovery process; to refuse to answer interrogatories; or where the privilege is provided for by particular statutes such as the Freedom of Information Act 1982 (Vic). 31 The rationale for the privilege is that it: promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. 32 Legal Professional Privilege and Government Lawyers The High Court in Waterford v The Commonwealth 33 has held that there is no reason to place legal officers in government employment outside the bounds of legal professional privilege...it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. 34 However, because of the government lawyer s position as an employee and because he or she may also be involved in the provision of policy advice, the High Court stressed that [w]hether in any particular case the relationship [between government and employee lawyer] is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment. 35 In other words, the privilege will only apply where the advice given is legal advice and is given by the lawyer in his or her professional capacity as a lawyer, supported by a degree of independence. The significance of whether a government lawyer holds a practising certificate as an indicator of his or her professional independence came to the fore in the decision of Crispin J of the ACT Supreme Court in Vance v Commonwealth and McCormack 36, a case involving an application for production of documents over which the defendants claimed privilege s Grant v Downs (1976) 135 CLR 674 at 685, per Stephen, Mason and Murphy JJ 33. (1987) 163 CLR Ibid, per Mason and Wilson JJ at para Ibid 36. [2004] 154 ACTR It should be noted that this case was decided within the Commonwealth Evidence Act 1995, but on this issue there seems to be no disparity between the doctrine of client legal privilege under that Act and the doctrine of legal professional privilege at common law. 24

25 In determining that the documents were not protected by privilege, Crispin J held that the fact that the Commonwealth lawyers who provided the legal advice in question did not hold practising certificates was fatal to the claim of privilege, since the holding of a current practising certificate was in his view essential to the establishment of a sufficient degree of professional independence to justify the privilege. However Crispin J s decision was overturned on this point by the ACT Court of Appeal. 38 The Court held that possession of a current practising certificate cannot be conclusive in determining whether advice given by a government lawyer is protected by privilege. The Court said: [T]he possession of a current practising certificate can be a very relevant fact to take into account in determining whether or not an employed lawyer, whether or not in government service, is employed in circumstances where they are acting in accordance with appropriate professional standards and providing the independent professional legal advice such that would attract a claim for client legal privilege under the Evidence Act. 39 For the purpose of this Review, our recommendation that government lawyers should be required to hold practising certificates is supported by the fact that such certificates may be relevant to a claim for legal professional privilege in respect of advice. But as the caselaw and commentary demonstrate, the factors of primary importance are the lawyers independence within the structure within which they work; and the clear identification of their professional capacity as lawyers. There are a number of ways in which these factors of independence and capacity can be supported. 40 Structure of Government Legal Practice As far as possible, the Legal Branch or Unit within a Department or agency should be set up to model a separate law firm. Lawyers within the Unit should report to the Head of the Unit who should hold a practising certificate and the Head of Unit should be directly accountable to the Department Secretary or Agency Head. If advice is requested by a business unit, that advice should be provided direct to the business unit, rather than be funnelled through the Department Secretary or equivalent. Legal files should be housed separately from other department files and should be clearly identified as Confidential Legal files. Lawyers should be identified as Lawyers or Legal Officers rather than as, for example, Policy Officers or Managers. The rest of the Department or agency should have a clear understanding of the role of the legal staff and that their advice will be independent and may not be influenced by non-legal staff to take account of policy objectives. In one Department we consulted, the Secretary has issued a directive to all legal staff emphasising that their role is to provide independent advice. In our consultations we were generally very impressed with the high level of commitment to the establishment and maintenance of professional integrity demonstrated by the legal staff and by the steps they had taken to establish their legal unit as an independent and separate team. It might be useful for a meeting of the Department of Justice s Government Lawyers Forum to be devoted to a general discussion of the ways in which various Departments have established their Legal Units and have taken other steps to buttress their professional independence. 38. Commonwealth of Australia and McCormack v Vance [2005] ACTCA Ibid at para See French, R, How Government Lawyers can maximise the prospects of attracting legal professional privilege paper delivered to the Government Lawyers Conference, 2007; Apel, I, Current Issues in Legal Professional Privilege Leo Cussen Institute, April 2006; and Australian Government Attorney-General s Department, Guidance Note Legal Professional Privilege and In-House Legal Advice undated. 25

26 However, we must emphasise that whether a document will attract legal professional privilege will always remain a question of fact in any particular case. Recommendation 2: As far as possible, the structure of a Legal Branch or Unit within a Department or government agency should follow a law firm model. This means that: lawyers within the Unit should report to the Head of the Unit who should hold a practising certificate; the Head of the Unit should be directly accountable to the Department Secretary or Agency Head; advice requested by a business unit should be provided direct to the business unit; legal files should be housed separately from other department files and should be clearly identified as confidential legal files. Recommendation 3: Lawyers providing legal services should be identified as Lawyers or Legal Officers rather than as, for example, Policy Officers or Managers. Recommendation 4: Departments and agencies should ensure that a clear understanding of the role of government lawyers, in particular the independent nature of their advice, is developed and maintained The new traineeship system replaced articles of clerkship from 1 July The new Admission Rules implementing the traineeship system were drafted to implement the recommendations of the Report of the Review of Legal Education conducted in This Report expressly recommended that traineeships should be able to be served in a wider range of workplaces than the current system private practice, government offices, community legal centres and corporations. 42 Rule 3.05 of the new Admission Rules implements this recommendation. However the Report also specified that supervisors of trainees must have held a practising certificate for five years and commented that [f]or government and corporate lawyers, this requirement is a means of distinguishing between lawyers whose work involves some form of legal practice and those whose role is primarily to provide policy advice or corporate services to government or the employing corporation. 43 We consider that the breadth of legal work carried out by government lawyers makes government practice a very important workplace for trainees and government itself will benefit if it is able to recruit, train and retain a steady influx of new graduates. However this will only be possible if all relevant government lawyers hold practising certificates. As the new Admission Rules incorporate the requirement that a trainee supervisor must have held a practising certificate for five years, this may limit the number of trainees to be taken in the first few years of the new system. But if all government lawyers are required to hold practising certificates in the future, the number of potential trainee supervisors will increase Is there support for the introduction of practising certificates for government lawyers? The majority of interviewees from Departments and agencies support the introduction of a requirement for government lawyers to hold practising certificates. This is hardly surprising given that so many of them already choose to hold a practising certificate. 41. Legal Profession (Admission) Rules Department of Justice, Victoria, Report of the Review of Legal Education, 2006, p Ibid, p.48 26

27 Those interviewees who oppose the introduction of such a requirement do so principally on the ground that it would mean another layer of regulation on top of the regulation already applying to government lawyers through the PAA, the Public Service Code of Conduct and, in some cases, the Model Litigant Guidelines. They also argued against the requirement on administrative grounds in the large agencies or business units the sheer task of completing Practising Certificate forms each year for a large number of staff would be burdensome. We recognise these arguments. However, we consider they are outweighed by the benefits flowing from practising certificates discussed in the preceding paragraphs. Government Lawyers Survey We have referred earlier in this report to the Survey of Government Lawyers conducted by the LIV in September-November The report resulting from this survey has provided us with valuable information on a range of relevant issues. The survey was not restricted to members of the LIV and the then Government Lawyers Group but was distributed as widely as possible across Victorian and Commonwealth Government Departments and agencies. A total of 121 responses were received. Although, as mentioned earlier, only 47% of respondents said they currently held a practising certificate, a significant 71% answered Yes to the question Do you believe that government lawyers should be required at law to hold practising certificates?. The principal reasons given for supporting this requirement emphasised the maintenance of professionalism and ethical standards and the need to demonstrate equality of status with the private profession. Among the 16.5% of respondents who answered No to this question, the main reasons given referred to existing public sector regulatory mechanisms as sufficient to ensure appropriate professional conduct. Interestingly, when asked if they would support practising certificates if their employer paid for it, the number supporting the requirement rose to 79.3%. On the related issue of compulsory CPD, 85-88% said their employer paid for external CPD and supported attendance during business hours. Although the LIV survey encompassed both Victorian and Commonwealth government lawyers, 75% of respondents identified their employer as either Victorian Government Department or Victorian Government Agency/Statutory Body. Given the difficulty in making an accurate calculation of the number of government lawyers who are the subject of our review, we believe that the combination of the LIV Survey and our own interviews has provided us with an excellent cross-section of opinions held by Victorian government lawyers Who should hold practising certificates? As foreshadowed earlier, only those government lawyers who engage in legal practice should be required to hold practising certificates. The question is what constitutes engaging in legal practice? The LPA uses engage in legal practice as the core concept on which the entire regulatory system is based. LPA s.2.2.2(1) provides the prohibition on unqualified practice: A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. 27

28 Unfortunately the LPA does not provide a definition of engage in legal practice (other than to say that it includes to practise law (LPA s.1.2.1)). 44 Nor did the preceding legal profession legislation define the concept. The equivalent section in the Legal Practice Act 1996, s.314(1), contained the prohibition on engaging in legal practice but there is no definition of the term. The Legal Profession Practice Act 1958 used the term acting or practising as a solicitor (s.90). The leading Victorian case is Cornall v Nagle 45 which arose under the 1958 Act. J. D. Phillips J cited with approval the following statement from State ex rel. Florida Bar v Sperry. 46 It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not have been or ever be the subject of proceedings in court. We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skills and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law. Thus, under this definition the practice of law, or engaging in legal practice, includes the giving of legal advice and the preparation of documents which relate to rights and obligations. The previous Western Australian legislation, the Legal Practice Act 2003, provided a list of activities which constituted engaging in legal practice. These are: suing out any writ or process; conducting proceedings in any court; carrying out work in connection with the administration of law ; 47 preparing any document dealing with interests in real or personal estate or any legal proceedings. The South Australian legislation, the Legal Practitioners Act 1981, uses the concept of practising the profession of law and prescribes the following activities as falling within this concept: preparation of wills; preparation of instruments affecting interests in real or personal property; preparation of instruments relating to a body corporate; preparation of any other instrument affecting legal rights or liabilities; 48 representation of a party to proceedings in a court or tribunal. It is clear from the above that it would be extremely difficult to formulate a complete definition of engaging in legal practice. Instead we suggest that a government lawyer should take out a practising certificate if he or she does any of the following as part of their professional role: 44. LPA s does contain a definition of legal work for the purposes of Chapter 7 which deals with the regulation of conveyancing businesses, as the preparation of documents creating, varying, transferring or extinguishing interests in land, or the giving of legal advice. 45. [1995] 2 VR 188 Supreme Court of Victoria, J D Phillips J So (2d) 587 (1962) at Legal Practice Act 2003 (WA) s Legal Practitioners Act 1981 (SA) s.21(2) 28

29 provision of legal advice, that is advice on the legal meaning or legal effect of legislation or documents; preparation of documents involving legal rights and obligations; conduct of litigation or proceedings before a court or tribunal; This recommendation applies to government lawyers whose work involves a component of legal practice, even if the majority of their time is spent on policy work. The governing consideration in relation to any government lawyer should be if in doubt, take out a practising certificate. It should be borne in mind that, once the position is established that government lawyers engaged in legal practice must hold a practising certificate, this requirement, in the form of eligibility to hold a practising certificate, should be incorporated into Position Descriptions. It will then be unnecessary for individual employees to make their own assessment of their obligation (except in the case of the creation of a new position). It should also be noted that, under our recommendation, the other exemptions from the prohibition on unqualified legal practice provided in LPA s.2.2.2(2)(e) and (f) will remain and may apply to some lawyers employed by government or a public authority. Similarly the caselaw on engaging in legal practice makes it clear that a person who merely completes a standard form document without exercising their own judgment on the legal implications of the content is not engaging in legal practice and will not require a practising certificate. 49 Recommendation 5: Government lawyers should take out a practising certificate if they undertake any of the following functions as part of their professional role: provision of legal advice, that is advice on the legal meaning or legal effect of legislation or documents; preparation of documents involving legal rights and obligations; conduct of litigation or proceedings before a court or tribunal; Recommendation 6: The Position Descriptions of government lawyers engaged in legal practice should refer to the requirement to hold or be eligible to hold a practising certificate What types of practising certificates should government lawyers hold? The LPA provides for local practising certificates subject to one or more conditions as determined by the LSB (LPA s.2.4.3(3)). However it is convenient to refer to different types of practising certificates. The hierarchy of certificates set out in the LPA is: principal of a law practice; employee of a law practice; volunteer at a community legal centre; corporate legal practitioner. 49. See for example Barristers Board v Palm Management Pty. Ltd [1984] WAR

30 A law practice is defined (LPA s.1.2.1), for the purpose of this discussion 50, as a sole practitioner or a law firm. A law firm is defined as a partnership of Australian legal practitioners or a range of combinations of Australian legal practitioners and incorporated legal practices (LPA s.1.2.1). A principal of a law practice is defined (again for the purpose of this discussion) as a sole practitioner or a partner in the law practice (LPA s.1.2.4(3)). A corporate legal practitioner is defined as an Australian legal practitioner who engages in legal practice as an employee of a person who, or body that, is not an Australian legal practitioner, an Australianregistered foreign lawyer or a law practice, and who provides legal services only to, and for the purposes of, his or her employer (LPA s.1.2.1). Those government lawyers who currently hold practising certificates hold corporate certificates because they are employed by a body that is not a law practice and because it had been assumed that an employee lawyer could not hold a principal s certificate. However a principal s certificate could be regarded as authorising all forms of legal practice see for example the provision in LPA s.2.4.3(7) which provides that a holder of a principal s certificate may practise as an employee or a corporate lawyer. Thus a government lawyer would be entitled to hold a principal s certificate even though he or she is a VPS employee. During the course of our consultations we considered the possibility of recommending the creation of a separate class of practising certificate, that of government lawyer. However this met with strong opposition from many of the lawyers we discussed it with and we therefore abandoned that possibility. We then considered whether it would be desirable for all government lawyers to take out principal s certificates, simply to avoid the restrictions inherent in the definition of corporate legal practitioner. However, there are no specific advantages to a lawyer in holding a principal s certificate. The LSB s Supervised Legal Practice Rules 2006 allow a new admittee, who is obliged by LPA s to serve 18 months to 2 years in supervised legal practice, to serve it under any eligible Australian lawyer, that, is, an Australian lawyer who is eligible to hold a local practising certificate (Rules 3.1, 4). There is therefore no need for a government lawyer to hold a principal s certificate in order to be able to provide supervised legal practice. Similarly the Legal Profession (Admission) Rules 2008 (referred to in section above) authorise traineeships to be served under the supervision of practitioners who are Australian lawyers engaged in legal practice or as a Government, corporate or community legal officer. 51 The disadvantage of a principal s certificate is that it carries, in addition to the practising certificate fee itself, a requirement to pay a contribution to the Fidelity Fund (the amount of the contribution associated with a principal certificate (without trust money) is currently $152 or $300 per year depending on the amount of trust money the law practice received). Finally it would not make sense for the Legal Branch of a Department to consist of a number of principals or sole practitioners. While we consider that a corporate practising certificate is the most appropriate local practising certificate for Victorian government lawyers, the LPA limits the type of work which may be performed by a corporate legal practitioner to the provision of legal services exclusively to, and for the purposes of, his or her employer (LPA s.1.2.1). This raises issues for government lawyers employed by the TAC, VWA and State Trustees, whose work involves acting for third parties. In order to put beyond doubt the ability of lawyers employed by these statutory bodies who hold practising certificates to provide services to nominated third parties, it may be desirable to amend 50. All the definitions discussed include incorporated legal practices and multi-disciplinary partnerships. These are not relevant to government legal practice and we have accordingly omitted them from our summary. 51. It should also be noted that the holder of any type of certificate may volunteer in a community legal centre: LPA s.2.4.3(6). 30

31 their respective legislation. The alternative would be for lawyers within these agencies to hold full practising certificates which, for the reasons noted above, would not be a preferred option. Our Terms of Reference require us to consider the cost to government of our recommendations. We certainly recommend that, if the requirement to hold a practising certificate is introduced, the fee should be paid by the employer. Current practising certificates fees are $256 per year for any type of certificate, other than a principal authorised to receive trust money. It may be possible for government to put a case to the LSB for a reduced fee for government lawyers, on the ground that they require less regulation. Government lawyers are likely to attract fewer complaints from third parties and complaints by their employer are likely to be handled internally. LSB staff advise that the current practising certificate fee does not cover all the costs of regulation in any case. Recommendation 7: The Transport Accident Act 1986, the Accident Compensation Act 1985 and the State Trustees (State Owned Company) Act 1994 should be amended to make it clear that a legal officer employed by the Transport Accident Commission, the Victorian Workcover Authority or State Trustees Limited who holds a corporate practising certificate is able to act for third parties if directed to do so by his or her employer. Recommendation 8: If the requirement to hold a practising certificate is introduced, the practising certificate fee should be paid by the Department or statutory authority. 5.2 Directions and Guidance notes The Commonwealth Attorney-General s Department provides Commonwealth departments and agencies with general guidance on issues relevant to the acquisition or provision of legal services, particularly through competitive tendering and contracting processes. This is intended to facilitate the efficient, effective and ethical use of Commonwealth resources and to ensure compliance with the Financial Management and Accountability Regulations Government policies and guidelines in this regard are contained in Legal Services Directions and guidance notes. The Legal Services Directions are a set of binding rules issued by the Attorney-General about the performance of legal work for the Commonwealth. The Directions apply to legal work performed inhouse, by the AGS or by other external legal service providers. They are issued by the Attorney-General pursuant to s.55zf of the Judiciary Act 1903 and administered by the Office of Legal Services Coordination (OLSC) in the Attorney-General s Department. The Directions are intended to ensure that Commonwealth agencies receive consistent and well coordinated legal services that are of a high standard, that uphold the public interest and that are sensitive to their context of Commonwealth interests. This approach is intended to protect the Commonwealth s legal and financial position within the competitive market for Government legal work. 52 Guidance notes are issued by the OLSC to assist Australian Government departments and agencies to comply with the Legal Services Directions, procure legal services and deal with legal issues in an efficient and effective manner. They deal with issues such as legal professional privilege, recording and monitoring legal services expenditure, monitoring breaches of the Legal Services Directions, identifying reasonable grounds for commencing proceedings, and principles of constitutional litigation accessed 20/04/ accessed 20/04/09. 31

32 Similarly, guidance notes have been used to provide guidance to government lawyers in a range of areas associated with government legal practice. For example, a guidance note issued by the UK Government Legal Service and provided to us during the course of this Review dealt with issues such as: the inter-relationship between government lawyers obligations as civil servants and as members of the legal profession; their role regarding other civil servants and the ministers or office holders to whom they are accountable; the special position of prosecutors in the decision-making process; and the inter-relationship between the role of legal advisers to departments and that of law officers in the provision of legal advice to government. While not strictly an option for the regulation of government lawyers, the use of guidance notes and directions has the potential to provide a framework for maintaining the professional standards of Victorian government lawyers in performing their functions as lawyers and public servants. Lawyers employed within the VPS operate in a range of departments and agencies. A number of legal units are small and operate in comparative isolation. A system of guidance notes has the potential to create a more coherent and collegial government lawyers sector. The VGSO is probably best placed to develop such a system given its role in providing legal services across government. Recommendation 9: The VGSO should develop a practice of issuing guidance notes for government lawyers on issues relevant to their legal practice. Pro bono work The question of whether and to what extent government lawyers should undertake pro bono work was not specifically included in our terms of reference. However, it was a matter which was raised both in the 2005 LIV s Government Lawyers Survey Report and by several interviewees in the course of our consultation. In addition, our terms of reference required us to consider the regulation of the professional activities of government lawyers. Pro bono work is an intrinsic part of the professional activities of lawyers in private legal practice and has developed a higher profile within the legal profession in recent years. Accordingly, we consider it appropriate to briefly suggest a framework for addressing the issue. The 2005 LIV survey indicated that a relatively low number of government lawyers participated in pro bono activities. Reasons for not undertaking pro bono activities included the absence of a practising certificate, conflict of interest and insurance issues, and lack of expertise in pro bono areas of the law. Government lawyer participation in pro bono activities should be encouraged where individual lawyers possess the skills and expertise to provide such services as part of their normal professional duties. Employers of government lawyers should be aware that pro bono work is a professional expectation and that reasonable accommodation for pro bono activities should be provided where possible. The Australian Government Solicitor (AGS) encourages its lawyers to undertake pro bono legal work and has developed a policy outlining its position in this regard. The policy provides a definition of pro bono work, and a number of key issues to be considered by AGS lawyers undertaking pro bono activities in their personal capacity. These include conflicts of interest, the power to act (including practising certificate and insurance issues), the availability of leave, the appropriate use of AGS assets and training. Similar guidelines for Victorian Government lawyers could encourage greater participation in pro bono activities. Guidelines could be developed, possibly by Government Legal Services within the Department 32

33 of Justice, in consultation with appropriate Government agencies including the VGSO, the SSA and possibly the Victorian Managed Insurance Authority. The AGS guidelines emphasise the role of Directors and supervisors in reducing the risk of conflict situations arising. They also note that AGS resources may be used in providing pro bono work within certain limitations. A number of organisations where government lawyers provide voluntary services, such as community legal centres, will carry their own professional indemnity insurance. Where an organisation does not carry insurance, the risks associated with the proposed pro bono activity could be discussed with the lawyer s manager and managed on a case by case basis. In appropriate cases, consideration could be given to the risk being assumed by the government lawyer s employer. Recommendation 10: Government Legal Services should develop a pro bono service delivery model for government lawyers in consultation with relevant agencies. 6. CONCLUSION The government legal sector provides a wide range of services to government and government agencies, and in some instances to members of the public in areas such as civil litigation, legal advice, transactional work, and criminal prosecution and defence work. Our overall impression of the government lawyers sector was one of highly challenging work undertaken in a dynamic environment which required the management of a range of competing and unique pressures. 54 It has been noted that government lawyers are subject to much the same pressures as other public servants in maintaining public sector values. In the performance of their professional services, they are required to maintain the ethical standards of the profession while faced with increased competition and client demands that their services must be equivalent to those provided by the private legal profession. 55 Furthermore, government lawyers professional services are subject to additional duties to the judicial system and to judicial independence, as well as the other conditions relating to government legal practice noted in Section Regulatory arrangements for government lawyers should reflect the nature of this work environment and the range of professional services provided within it. Regulatory issues should also be considered in light of evidence of a significant growth in the number of government lawyers in recent years. 56 We have recommended that lawyers employed by the Victorian Government and by statutory agencies established under Victorian legislation should be required to take out practising certificates under the LPA if their work either wholly or in part constitutes legal practice. We consider that this change will assist in creating a government lawyer sector more fully integrated with the mainstream legal profession. It will reinforce the professional status of government lawyers and support their career development. In particular, by requiring all government lawyers to undertake CPD, this change will enhance their professional competence and support the quality of legal services provided to government. 54. This belied one traditional image of government lawyers as relatively de-skilled and undertaking relatively low-status work. See for example a pen caricature by Canberra Times cartoonist Geoff Pryor in the mid-1980s ( The last time he put a law report to use was to prop up a wobbly cabinet in the corner of his office etc) which may still resonate in some minds: A Look at the Law (1986) 60 LIJ Selway, B Management Structures for Government Lawyers (2000) 59(2) Aust Journal of Public Administration, 105, This may indicate a need to conduct an audit of the numbers of government lawyers across Departments and statutory agencies as a follow up to the calculations compiled in 2006 as part of the Beaton review. This would provide government with a clear and accurate picture of the role of in-house lawyers. 33

34 To some extent, additional regulation may also enhance the potential applicability of legal professional privilege to the advice government lawyers provide to government. However, as noted above, our consultation indicated that government legal units are already structured in such a way as to establish a defensible claim for legal professional privilege. Cost to government In Section we touched briefly upon the possible cost to government of our recommendations. The specific costs consist of the annual fees payable on practising certificates and the possible cost of attendance by government lawyers at external CPD activities. We are assuming that relevant departments and agencies will be prepared to continue to meet these costs on behalf of their employed lawyers. Practising certificate fees As mentioned in Section 5.1.7, we recommend that, in general, government lawyers should hold corporate practising certificates. The head of a departmental Legal Unit or Branch may wish to hold a principal (without trust money) certificate. Under the current fee structure both types of certificate carry a fee of $256 per annum, but the principal certificate also carries an obligation to pay a contribution to the Fidelity Fund of $152 or $300 per annum depending on the amount of trust money the law practice received. These amounts may of course increase in the future. 57 This cost represents a very small proportion of the total cost of employing a government lawyer and should be manageable within existing departmental and agency budgets, especially given that many departments and agencies are already meeting the cost of practising certificates for their lawyers. Similarly, it may be expected that the relatively small number of government lawyers required to take out practising certificates will not impact on the LSB s regulatory budget. Continuing Professional Development The second additional cost flowing from our recommendation might be that of external CPD activities. As we noted in Section 5.1.2, those government lawyers who already hold practising certificates and therefore must meet CPD obligations are largely able to do so by attending activities which carry no fee, such as the VGSO monthly seminars. Some government lawyers indicated that their Department is willing to pay for them to attend relevant conferences and seminars provided commercially by external agencies. If all government lawyers are required to meet CPD obligations, Departments and agencies are more likely to develop their own in-house professional development programs. For those Departments and agencies with only a small number of lawyers, there are advantages in joining with other units in similar fields of practice to develop a joint or shared in-house program. We therefore consider that any additional cost to government of the CPD obligations imposed on government lawyers will be minimal. 57. For example, the contribution rate for a principal (without trust) will increase to from $152 to $164 and $300 to $324 per year from 1 July

35 Appendix A CONSULTATIONS AND INTERVIEWS The following is a list of persons consulted during the course of this review and their roles at the time of interview. Their assistance is gratefully acknowledged. State Government Departments Dept of Education Ms Catherine Henderson, Deputy Secretary Mr Kevin O Brien, Head Legal Branch Mr Ian Burrage, Acting Manager Legal Branch Dept of Human Services Dept of Infrastructure Dept of Premier and Cabinet Ms Louise Johnston, Director Legal Services Branch Ms Shelley Marcus, Director Executive and Legal Services Mr Rupert Burns, Acting Director, Legal Branch Ms Karen O Sullivan, Lawyer Dept of Primary Industries Dept of Sustainability and Environment Dept for Victorian Communities Ms Giovanna Tivisini, General Counsel Ms Alison Purser, Senior Legal Officer, Legal Services Ms Jenny Samms, Deputy Secretary, People and Community Advocacy Division Mr Andrew Lyons, Principal Legal Adviser State Services Authority Mr Greg Vines, Public Sector Standards Commissioner Mr John Cairns, Exec. Director, Workforce Development Group Statutory Authorities and other State Government bodies Consumer Affairs Victoria Dr David Cousins, Director Mr Stephen Devlin, General Counsel, Compliance and Enforcement Civil Law Policy Department of Justice Government Legal Services Department of Justice Mr Chris Humphreys, Director Civil Law Policy, Ms Kylie Kilgour, Legal Policy Officer Mr Robert Reid-Smith, Manager Government Legal Services Mr Peter Galeotti, Manager, Contract Performance and Reporting 35

36 Statutory Authorities and other State Government bodies continued Legal Services Board Ms Victoria Marles, Legal Services Commissioner and CEO Legal Services Board Mr Adam Cockayne, Director, Legal & Policy Mr David Forbes, General Counsel Ms Josie McKay, Policy Officer, Legal Policy and Litigation Municipal Association of Victoria Office of Chief Parliamentary Counsel Office of Public Prosecutions Ms Alison Lyon, Director, Legal and Corporate Mr Eamonn Moran, Chief Parliamentary Counsel Mr Paul O Brien, Senior Parliamentary Counsel Ms Susette Dootjes, Acting Solicitor to the DPP Mr Peter Byrne, Senior Solicitor Policy/Advisings, Mr Bruce Gardiner, Program Manager, Policy/Advisings Transport Accident Commission Victoria Police Mr Mark Rawlings, Senior Manager Mr Findlay McRae, Director Legal Services Mr Stuart McKenzie, Legal Officer Victoria Legal Aid Victorian Government Solicitor s Office Victorian Workcover Authority Mr Tony Parsons, Managing Director Mr John Cain, Victorian Government Solicitor Ms Marlo Baragwanath, General Counsel Ms Penny Dedes, Manager Legislative Services and Corporate Legal Services Mr Colin Bellis, Senior Legal Counsel - Dispute Management Practice Mr Patrick McQuillen, Senior Lawyer - Rehabilitation and Compensation State Revenue Office Ms Aspasia Georgiou, Executive Director Legal Services Ms Adrienne McClelland, Legal Services State Trustees Mr Allan Merigan, Manager Legal Services 36

37 Commonwealth, interstate and overseas bodies Commonwealth NSW Mr Martin Bruckard, Director, Melbourne Office, Australian Government Solicitor Ms Susan Cochrane, Attorney-General s Department Office of Legal Services Co-ordination Ms Linda Muston, Office of Legal Services Commissioner Mr Tim McGrath, Attorney-General s Department Ms Fiona Cameron, Attorney-General s Department Mr Charles Cawley, Law Society NZ UK Ms Gina De Graaf, Department of Justice Mr James Murphy, Government Legal Service Secretariat Law Societies and related organisations Australian Corporate Lawyers Association Mr Peter Turner, Chief Executive Officer Mr David Honey Mr Richard St John, Chair, Professional Issues Committee Law Institute of Victoria Mr Michael Brett Young, Chief Executive Officer Ms Vanessa Twigg, Chair Government Lawyers Section Ms Helen Blaskett, Solicitor, Government Lawyers Section 37

38 Appendix B TABLE OF COMPARATIVE JURISDICTIONS Jurisdiction Legislation Prohibition on Unqualified Legal Practice Exemption for Government Lawyers? ACT Legal Profession Act 2006 s.16(1) Yes s.16(4)(c) NSW Legal Profession Act 2004 s.14(1) Yes s.14(3) (but government policy requires their lawyers to take out practising certificates) NT Legal Profession Act 2004 s.18(1) No QLD Legal Profession Act 2004 s.24(1) Yes s.23(1) SA Legal Practitioners Act 1981 s.21(1) No TAS Legal Profession Act 2007 s.13 Yes - s.13(2)(b). WA Legal Profession Act 2009 s.12 Yes - s12(3)(f). COMMONWEALTH Judiciary Act 1903 ss.55e and 55Q Attorney- General s lawyers and Australian Government Solicitors lawyers not subject to State or Territory laws ENGLAND AND WALES Solicitors Act 1974 s.1 s.88 NEW ZEALAND Lawyers and Conveyancers Act 2006 s.21(1) No 38

39 Appendix C RULES AND REGULATION OF GOVERNMENT LAWYERS Source of Rules/Regulation Administering agency All government lawyers Legal Profession Act 2004 Legal Services Commissioner Legal Services Board Legal Profession Regulations 2005 Legal Services Commissioner Legal Services Board Rules that relate to Federal Government lawyers Professional Conduct and Practice Rules 2005 Judiciary Act 1903 (Cth) Public Service Act 1999 (Cth) APS Code of Conduct Attorney-General s Legal Service Directions (incorporating Model Litigant Policy) Law Institute of Victoria (where practitioners regulated by LIV) Office of Legal Services Coordination Australian Public Service Commission Australian Public Service Commission Office of Legal Services Coordination Rules that apply to State Government lawyers Public Administration Act 2004 Code of Conduct for Victorian Public Sector Employees Model Litigant Guidelines: Guidelines on the State of Victoria s obligation to act as a model litigant State Services Authority State Services Authority Victorian Attorney-General Rules that relate to Local Government Lawyers Local Government Act 1989 Good Governance Advisory Group, Good Governance Guide 2004 the principles of good governance within local government Local Government Victoria (Department for Victorian Communities) Source: Law Institute of Victoria pamphlet A Guide to Rules Governing Government Lawyers. 39

40 40 Regulation of Government Lawyers