Wednesday, 7 September 2011

The Government Lawyer

The 2011 Richardson Oration, delivered by Damian Bugg AM QC, Wednesday 7 September 2011.

The Government lawyer’s relationship of trust with their client; developing and maintaining it

It is indeed an honour to be invited to deliver the first Jack Richardson Oration. I especially welcome Jack’s widow, Grace and two of his children, Matthew and Rebecca.

I did not know Jack Richardson but my understanding of his life work and, through the text of an address that he gave in 2002, some appreciation of his sense of humour, enable me to simply say that in June this year we saw the end of a very full life which will be remembered for many things, but in this forum as that of a truly great contributor to the status and acceptance of the Ombudsman’s Office in Australia and a person who played a pivotal role in the establishment of the Law School at ANU and a greater appreciation of the benefits to the community of a sound legal education facility.

I have found some close degrees of separation between Jack Richardson’s life and my own, which I will mention as I go.

Careers in the law for people of Jack Richardson’s generation were, if you had his ability, determination and persona, usually found in the high fee end of advocacy and taxation or commercial advice. Not for him, his enthusiasm for constitutional law saw him return to Australia in his mid 30’s, after a stint at McGill in Montreal, to enter the Attorney General’s Department here in Canberra where he also played a leading role in developing air and space law. He is said to have cut a fine figure driving his MG sports car around Canberra while wearing a beret. This is my first degree of separation. By 1968 I had acquired a slightly older MG, mine was a TF 1250 whereas Jack’s was the TF 1500, and I was busily trying to fail final year Law at UTAS as I spent valuable hours toiling to keep it on the road.

It is difficult to know what causes turning points in people’s lives, but after about five years in the AGD Jack Richardson, in 1960, accepted the post of Professor of Public Law at the newly established ANU Law School. I suspect that in the Canberra of 1960 he had been noticed, not for his MG TF and beret. One year later he was Dean, a position he held until 1970. By the end of his tenure the reputation of the Law Faculty was such that students from across the country were seeking entry. This is my second degree of separation, my brother Tim came to Canberra in 1973 to study Arts Law.

When Jack Richardson left the Law School at ANU in 1977 to become the first Commonwealth Ombudsman he was 57, an age when most people at that time were contemplating retirement through the attraction of early retirement packages but he was somehow attracted by the challenge of establishing the office and educating Australia, and particularly the politicians, as to the role and powers of the office. This is my third degree of separation, I became the first DPP in Tasmania in 1986 and I have some inkling of what he must have been confronted with. Jack was chancing his arm at 57 and that speaks volumes about the person he was. In 2002 he spoke about some of the challenges he faced and I will come back to that.

He retired from the Ombudsman’s office in 1985 at the age of 65 but did not cease his involvement in the Law, he spent time in legal practice and then established the ombudsman’s office in Samoa. Later in life he turned to another challenge, running a horse stud with his wife Grace. Throughout this time he was a visiting fellow at the ANU Law School. He died in Camden Hospital on June 13th 2011. This is the fourth degree of separation, our daughter studied her last year of Vet Surgery at Camden, she also loves horses but fortunately has never owned one.

What a life and what a contribution which is now remembered and celebrated in this way.

Now to the subject of tonight’s Oration. The Government Lawyers relationship of trust with their client, developing and maintaining it. The relationship that a senior lawyer has with their own staff.

When Michael Chilcott asked me to deliver this oration the ABC programme Crownies had not commenced, Michael and I prosecuted together in Tasmania in the DPP’s Office. I must say that the ABC has done more for staff recruitment in the Offices of the DPP around this country than any strategies we had in place to attract talented young lawyers to our offices to embark on a career of challenge with the highest ethical standards. Nor had we contemplated that the High Court would hand down a decision which has excited public comment and criticism in ways which are usually confined to the privacy of the boardroom of the unsuccessful litigant. They each provide rich pickings for an oration such as this. I will resist the temptation to take the easy path.

The Government lawyers relationship of trust with their client

This is a very broad subject, because there are so many different roles for lawyers in government service with differing ‘client relationships’. I looked to see what had been said previously to ACLA on the subject, and this to some extent informed my approach.

In 2007 at your National Conference the Secretary of the AGD, Rob Cornall addressed you on the subject of ‘Redefining the Role of Government Lawyers in today’s Public Service’. By reference to advances in technology, globalisation of the Australian economy and the close scrutiny of the 24 hour media cycle he posited that there is an expectation that lawyers will be on duty ’all the time’. Now Rob is a fairly demanding character but I will cut him the excuse of hyperbole through enthusiastic advocacy for his thesis when he said that. However, Rob’s address highlights the point of distinction which will define the scope of what I have to say to you tonight and, in no way should this be seen as a criticism of the conclusions he reached regarding the broader expectations on lawyers in the Public Service. They do not apply to what I have to say here. Rob’s point of distinction is in this sentence, which is contained in his consideration of modern expectations of Government lawyers. He said “Some of government’s expectations are broadly the same as its expectations of the public service as a whole. Some of them are more specific to our particular functions.” I will confine my address to you this evening to the particular functions of the Government lawyer which are to be distinguished from those which are broadly the same as are applicable to the public service as a whole. In that broader area, as discussed by Rob, although there may be, as he suggested, expectations by Government, I am of the view that there is no solicitor client relationship in the strict sense, but rather an engagement in activities such as policy development and other non legal functions for those exercising mixed functions. In other words, if the work of the lawyer was to be translated in to advice would that provide the protection of privilege to the advice and communications relevant to it?

This will not so simply provide the complete answer, but it draws on the distinction that I am making. Is there a solicitor/client relationship or an employer employee relationship. There is an element of trust in all employment relationships, but many would argue that the mere existence of a solicitor client relationship involves a placing of trust in the solicitor. The lawyer, in other words, has the trust of his client.

But how is that relationship affected by modern developments, which Rob spoke about, the opening of government legal work to competition and the creation of more in house/special counsel roles throughout the sector. While I think these changes create challenges, I would argue that the point of distinction makes this consideration irrelevant. You ask three questions: One, is the person a lawyer/ employed by or representing the government? Two, are they acting in the capacity of a solicitor/legal representative; and three, for an agency/department or entity. If yes to all three then you have a “government” lawyer in a position deserving of trust from a client. But how is that relationship of trust with the client firmly established and what matters or things define and affect that relationship.

You start with the advantage of a qualification and a position, in my view, of privilege. You bring to the client, or the relationship, your skill, training and the reassurance that you will act professionally, ethically and in the interests of your client. I think it is instructive to examine trust from the perspective of the client. The client takes you at face value, you hold a qualification and a position. The client’s confidence in you is to trust you to properly represent them and therefore, they are prepared to take the risk, if you like, of relying on your advice and expertise to properly represent their interests.

Now that is what the concept of trust is all about in a solicitor client relationship, and the longer the relationship, in my experience, the higher or stronger the level of trust, if you are conducting yourself appropriately. If the matter is litigious your role, as a government lawyer, is slightly different to that of a lawyer representing a private client, you are bound by a model litigant requirement, as well as the rules of professional conduct, and the client must understand this. Trust improves with confidence, competence and dependability, the confidence of receiving sound and independent advice, to overrule instructions which exceed the bounds of the model litigant, to advise against a course which has no prospect, to advise on the law, not the politics (if you drift in to this area you may find that your advice is not protected by solicitor/client privilege). To be consistent and demonstrate a command of or competence in the area you are dealing with. This is not a question of doing or saying what the client wants. You are giving frank and independent advice and earning the respect or trust of the client. This to me is one part of the buzz of being a government lawyer, another is the exposure to a diverse range of issues not usually found in the filing cabinets of most law firms.

In Tasmania as DPP I was also responsible for the conduct of civil litigation on behalf of the State. I will give you an example of how the model litigant requirement was applied in the civil practise of my Office. Close to a trial in a significant civil damages claim, while collecting the original documents from the file in the relevant Department’s headquarters I discovered an internal memo in a file which had not been disclosed to the office. The memo indicated that there was a high degree of responsibility on the employer for an explosion in a quarry which caused significant injuries to the plaintiff, while there might have been contributory negligence the discovery of this memo so close to the trial date left me with no alternative but to admit liability.

The same could be said of the prosecutor.1 You are, in that sense, a government lawyer, even though you work behind the shield of independence from Government. In a sense, your client is the criminal justice system provided by Government, and the community. You must establish the trust of the system and the community and this to me was always the interesting challenge in the role of the independent prosecutor. Many of your decisions are made in camera, they are not subject to review. To retain public confidence the Office has to run according to a transparent policy or guideline. That policy asks two questions. On the available and admissible evidence is there a reasonable prospect of conviction? If yes, is it in the public interest to prosecute? If the answer to that question is yes then the prosecution must continue.

That test properly applied, continues throughout the trial process. A good illustration of its application is a very high profile Tax fraud prosecution the Commonwealth DPP ran in Melbourne while I was Director. The case was circumstantial and as it progressed some of the evidence was either qualified or ruled inadmissible. Senior counsel retained to prosecute had discussed the developments with me and I instructed him that if the circumstantial evidence reached a point where it was no longer only consistent with an inference of guilt he was to adjourn the case and we would discuss the next step. If ever prosecuting counsel reaches a point during a trial where the evidence no longer satisfies the Prosecution Guideline of reasonable prospects of conviction then the trial should be abandoned. If the prosecutor is not satisfied that the prospects are reasonable then it cannot be represented to the jury that they can convict on the evidence and the trial abandoned. That was the outcome in Melbourne and I explained this principle when the defence lead counsel and instructor expressed surprise that I had made the decision to abandon the trial.

The highest level of legal correctness must be applied in your tasks as a government lawyer. The outcomes may sometimes be disappointing for your client, and for you, but the respect and trust of the client are enhanced by such decisions.

You should not take your role for granted. It is a privileged one.

In many cases you have a tie or bond with your client. You must be vigilant in ensuring that your advice and representation is always based on legal principle, is objective and firm.

The Government will see an advantage in having a regular or consistent channel of advice and expect a level of consistency. You must avoid complacency, the law changes.

Being a government lawyer provides a great opportunity to develop and be recognised for expertise through exposure to specific issues.

Your work and advice will be appreciated all the more so with the increasing level of scrutiny through FOI and calls for greater transparency in Government. In the sole purpose of advice there will be the protection of privilege. Many of the cases defining the role of government lawyers (Nye et al) concern claims of privilege.

Security of information and your confidence or confidentiality is the final pillar of trust.

Work on these and you will see the relationship of trust develop.

I was interested to see that in 2009 the State of Victoria conducted a Review in to the Regulation of Government Lawyers.2 The Report is available on the net and I will refer to some aspects of the Executive Summary and Recommendations, they support what I have been saying.

Within the Executive Summary the authors report:

“The purpose of this Review 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. … The Review therefore focussed specifically on the issue of whether government lawyers should be required to hold a practising certificate.”

“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.”

The summary explained that the requirement for CPD rules to apply to all lawyers holding a practising certificate will enhance the quality of legal services provided to government and the professional status of government lawyers. I agree with this.

Later in the summary: “The Review identifies a number of other advantages which it is believed will flow from the requirement (to hold a certificate). 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.”

And finally, “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 also makes recommendation that legal units within Departments should be structured separately and resemble as near as possible a law firm model, where files are kept separately, lawyers within the unit should report to the Head of the Unit, who should hold a practising certificate, all to ensure as far as possible the capacity of government lawyers to provide independent legal advice.

Time will not permit me to refer in more detail to the Review Report, but I do think that it is helpful to see the Recommendations summary of the indicia used by the Reviewers to indicate work requiring a practising certificate. The list is not exhaustive.

“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.”

The list, as I said, is not exhaustive, but I think it assists in understanding the distinction I was making at the start of my address.

The opening of Government legal work to competition creates challenges, as I said. The same solicitor client relationship exists, but there are not the other factors I mentioned earlier. Is that a good or bad thing? It should not make any difference really. The Government should have the freedom to choose the best person available to provide advice and representation. Hence, don’t become complacent.

It is interesting to note from the Blunn Krieger Report that in one year the federal government spent 555 million dollars on the provision of legal services. That, in any terms, is a large amount of money. With all this expenditure on legal services is there a tendency to outcome shop? Does that affect trust? These are issues which must be considered.

I believe that a wealth of experience and expertise is developed where there is a permanent relationship and confidence in firm independent advice. My experience is that the level of trust grows if you are shown to be firm. Be your own lawyer.

Senior Lawyer’s Relationship with Staff

I will cover this question briefly with points.

  1. Loyalty starts at the top and you don’t lose your authority by being friendly.
  2. Train and mentor and have simple guidelines and instructions.
  3. Mistakes are only human. Try to have in place sufficient safeguards to limit mistakes but don’t overly stress when a mistake is made, we all make them. If it wasn’t for judicial error we would not have law libraries.
  4. There is now substitute for actual experience. Get them in to the deep end of the pool sooner rather than later.
  5. Mentor and encourage.

Conclusion

In conclusion I will let Jack Richardson AO have the last word. I will refer to passages from a speech which he gave in 2002, it gives some insight in to the wonderful sense of humour and keen vision of the late Jack Richardson. The full text of this speech is available on the net.

He started with the following words:

“As the fourth speaker tonight I regard myself as engaging in a mopping up exercise rather than trying to think up something new to say about the Administrative Review Council”. He spoke about the early history of the Council and mentioned the part Mr Justice Tom Smith of the Victorian Supreme Court played in contributing to the much needed improvement in discovery procedures. He then said “I remember him too because as a law student at Melbourne University studying Contracts I leased an unauthorised version of his lectures from a former student on the subject. I was assured that nothing would change including a joke during a lecture in August. I went along and he was quite right.”

He spoke of Sir Gerard Brennan, the first President and said “I recall a brief discussion with the foundation president on the holy grail of the Commonwealth Constitution namely the impenetrable shield of the judicial power of the Commonwealth. I can recall that he did not even wince when I suggested the Federal Courts should enforce decisions of the AAT without question except for an error of law. Nevertheless I thought he looked at me as though my credentials were open to doubt.”

In speaking of the early difficulties he experienced as the first ombudsman he mentioned “On one occasion the then Minister for Finance, Senator Walsh, said to me “I cant stand lawyers and its a pity you are one”.

Later in his speech when considering competition from the Courts he rather prophetically said:

“The federal judicature constituted under Chapter III of the Constitution isolates itself from intrusions by the Executive Government constituted under Chapter II. Yet in recent years the Federal Court has been inundate with appeals on migration matters in the course of which it has sometimes not hesitated to examine policy issues. In so doing it approximates to a review on the merits.”

Since the ARC first met, the Courts, including the High Court, have entered the domain of executive government by importing the concept of procedural fairness into administrative decision-making process. What such decisions mean for the process of administrative review which falls within the domain of the ARC remains to be seen. It reminds me, by way of conclusion, of a recent contribution by Robert Macklin in the Canberra Times, which I quote:

ELEMENTARY

Sherlock Holmes and Dr Watson went on a camping trip and after a good meal and a bottle of wine they retired for the night.

Some hours later, Holmes awoke and nudged his faithful friend. “Watson, look up at the sky and tell me what you see.”

Watson: “I see millions and millions of stars.”

Holmes: “What does that tell you?”

Watson: ”Astronomically, it tells me that there are millions of galaxies and potentially billions of planets. Astrologically I observe that Saturn is in Leo. Horologically, I deduce that the time is approximately 3.15 am. Theologically, I can see that God is all-powerful and that we are small and insignificant. Meteorologically, I suspect that we will have a beautiful day tomorrow. What does it tell you, Holmes?”

Holmes: “It tells me, Watson, that some bugger has stolen our tent.”

And he concluded his speech so, at the age of 82.

Thank you for inviting me to present this Oration to honour the late Jack Richardson AO.


Footnotes

1. See Nye v State of New South Wales and ors [2002] NSWSC 1267
2. Department of Justice, Victoria, A Review of the Regulation of Government Lawyers, Susan Campbell and John Lynch, 2009

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