RCMPI

Chapter 15

Legal profession regulation

Introduction

Lawyers have considerable authority and power when representing a client. They have expert knowledge of the law and legal system, and access to their client’s confidential information. A lawyer’s advice and actions can have a direct and significant influence on a client’s future, their wellbeing and the outcomes they are able to achieve. When lawyers knowingly and deliberately betray their client’s trust or act in ways contrary to their interests, it can have a negative impact on the client. It can also, as the Commission’s inquiry has shown, have a negative impact on the integrity of the criminal justice system and community confidence in the administration of justice and the legal profession.

Term of reference 6 required the Commission to inquire into any matters necessary to satisfactorily resolve the matters set out in its other terms of reference. As part of its inquiry into term of reference 6, the Commission examined aspects of legal profession regulation and the way that it supports, promotes and monitors lawyers’ ethical conduct.

In Chapter 7, the Commission outlines the number of cases that may have been affected by the use of former criminal defence barrister Ms Nicola Gobbo as a human source. In Chapters 12 and 13, the Commission makes recommendations to strengthen Victoria Police’s use of human sources involving legal obligations of confidentiality or privilege, including recommending a new legislative and oversight regime. While Victoria Police must do better to strengthen its human source management framework, members and regulators of the legal profession also have a role to play in preventing and deterring the kind of conduct that led to this Commission.

The purpose of legal profession regulation is twofold: to protect the integrity of the administration of justice and to protect consumers and the public.

Victoria’s legal profession regulatory framework consists of legislation, the common law, professional rules, ongoing education and support services. These elements work together, requiring lawyers to understand and adhere to high standards of ethical and legal practice. When lawyers fail to uphold these standards, a framework of complaints procedures, investigations and disciplinary mechanisms act to correct and deter the behaviour.

Given the scope of its terms of reference, the Commission has not conducted an extensive review of legal profession regulation in Victoria. Rather, it has focused on the specific aspects of legal profession regulation that support the ethical conduct of lawyers, and related issues raised by stakeholders the Commission consulted.

Since Ms Gobbo was admitted to the legal profession in 1997, Victoria’s legal profession regulatory framework has changed significantly. The Commission considers, however, that there is scope to further strengthen and improve aspects of this framework.

It identified that there are opportunities to provide more comprehensive guidance to lawyers about their ethical duties and obligations, particularly relating to the duty of confidentiality, exceptions to this duty, and maintaining appropriate professional boundaries. Regulators and professional associations could also do more to make lawyers aware of the supports available to them in upholding their ethical obligations.

The Commission also recommends the introduction of a mandatory reporting requirement for lawyers to report suspected misconduct of other lawyers, and in doing so, support high ethical standards in the legal profession, better protect consumers of legal services and enhance public confidence in the Victorian profession.

The public can be assured that Ms Gobbo’s improper conduct is the exception rather than the norm. Undoubtedly, the majority of Victorian lawyers are competent, diligent, ethical professionals who take their duties to the court and to their clients very seriously. Unfortunately, it is likely that Ms Gobbo’s conduct has caused at least some community members to wonder whether they are able to trust a lawyer, or whether confidential information they supply to a lawyer might be disclosed to others in breach of their trust.

As such, the Commission considers that legal profession regulators and professional associations must work together to communicate effectively with the public about lawyers’ professional and ethical obligations, with the aim of restoring and maintaining public confidence in the legal profession and the broader criminal justice system.

Current context and practice

This section summarises aspects of legal profession regulation in Victoria. It focuses on the ethical duties and obligations imposed on lawyers, along with:

  • the legal profession regulatory framework
  • admission to the legal profession
  • the requirements to practise as a lawyer, including continuing professional development (CPD)
  • ethical and practice support available for lawyers.

These topics are discussed in turn below.

The legal profession regulatory framework

Legal profession regulation serves a range of purposes. It seeks to promote the administration of justice by ensuring that, among other things, lawyers act competently and maintain high ethical standards so that members of the public are protected.1

The legal profession plays a central role in the administration of justice. Lawyers owe a range of ethical duties and obligations—to the court, their clients and other lawyers—all of which help promote the integrity of the justice system, and trust between lawyers and their clients. When standards are not upheld, they can be enforced by a regulator or the justice system, which may impose sanctions in response to unsatisfactory, improper or criminal behaviour.

As the relationship between lawyers and their clients is based on trust, regulation also supports members of the public to confidently engage the services of a lawyer without needing to independently verify their credibility and qualifications.2

The two branches of the legal profession in Victoria—solicitors and barristers—are often collectively referred to as ‘lawyers’. Solicitors provide legal advice to individuals and organisations and will sometimes refer matters to barristers, while barristers tend to specialise in representing people in court and may give specialist advice on complex legal matters. Barristers generally receive their instructions through solicitors. In 2018–19, there were 23,477 registered lawyers in Victoria, comprising 21,348 solicitors and 2,129 barristers.3

Overview of the regulatory framework

The legal profession regulatory framework encompasses all aspects of being admitted to legal practice and practising as a lawyer. It also establishes bodies responsible for overseeing the framework itself, and for managing complaints and disciplinary outcomes in cases of misconduct.

The legal profession regulatory framework draws on legislation, rules and the common law. In Victoria, the Legal Profession Uniform Law Application Act 2014 (Vic) (Uniform Law) governs the practice of law and regulation of the legal profession. The Uniform Law was introduced with the aim of promoting greater consistency in how the legal profession is regulated across jurisdictions.4 It also operates in New South Wales, and will potentially apply in Western Australia if enabling legislation currently under consideration by the Western Australian Parliament is passed.5 Local professional conduct rules apply in those jurisdictions that have not signed up to the Uniform Law.

A framework of rules sets out how the Uniform Law operates in Victoria, including:

  • Legal Profession Uniform Admission Rules 2015 (Admission Rules)—outline the requirements for admission to the legal profession
  • Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Solicitors’ Conduct Rules) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers’ Conduct Rules)—outline professional obligations and ethical principles for lawyers. This chapter sometimes refers to these rules collectively as the ‘professional conduct rules’.

The professional conduct rules are an important source of lawyers’ ethical and professional responsibilities, but they are not exhaustive. Lawyers also owe ethical duties and obligations that flow from the operation of other legislation; for example, in relation to civil procedure.6 Further, the professional conduct rules reflect ethical principles that have developed over time and that are drawn from a range of sources, including the common law. Courts and tribunals play an important role in interpreting and enforcing lawyers’ ethical duties and obligations when handing down decisions in disciplinary matters.

Key regulatory and other bodies

Several bodies work together to regulate the legal profession and oversee the operation of the Uniform Law, as set out in Figure 15.1.7

Figure 15.1: Roles of regulators and professional associations under the Uniform Law 8

Figure 15.1- Roles of regulators and professional associations under the Uniform Law

As Figure 15.1 shows, the Legal Services Council and the Commissioner for Uniform Legal Services Regulation oversee the Uniform Law in Victoria. These bodies are in turn overseen by the Council of Attorneys-General, which is made up of the Attorneys-General of the states that participate in the Uniform Law.9

The Law Council of Australia, which represents the legal profession at a national level, issues the Solicitors’ Conduct Rules and, in conjunction with the Australian Bar Association (which represents barristers nationally), the Barristers’ Conduct Rules. The rules were adopted under the Uniform Law in Victoria and New South Wales and have also been adopted in some jurisdictions that do not yet participate in the Uniform Law scheme: South Australia, Queensland and the Australian Capital Territory. The Law Council of Australia has issued commentary to accompany the Solicitors’ Conduct Rules, which assists solicitors by providing ‘additional information and guidance in understanding how particular rules might apply in some situations’.10

The Law Council of Australia also issues rules relating to CPD for solicitors and barristers, and supports the Uniform Law and the legal profession generally.11

At the state level, the Good Conduct Guide: Professional Standards for Australian Barristers (Good Conduct Guide) provides additional information about the professional conduct rules in relation to barristers.12 The Law Institute of Victoria also publishes ethics guidelines to support solicitors with guidance on particular ethical or conduct situations.13

Regulation of Victoria’s legal profession has changed significantly over time, having moved from self-regulation14 to co-regulation,15 with the introduction of independent regulators.16 The aim of these changes has been to improve both transparency in the legal profession, and accountability of the legal profession to the public.17

As Figure 15.1 shows, in Victoria, the Victorian Legal Admissions Board (VLAB) and the Victorian Legal Services Board and Commissioner (VLSB+C) are the two designated local regulatory authorities:18

  • The VLAB oversees the admission of lawyers in Victoria, including assessing the suitability of applicants (which is formally undertaken by the Victorian Legal Admissions Committee (VLAC) under a delegation).19
  • The VLSB+C is comprised of two separate bodies that effectively operate as one:20
    • The Victorian Legal Services Board grants and renews lawyers’ practising certificates, and can vary, suspend or cancel practising certificates.21
    • The Victorian Legal Services Commissioner is responsible for the receipt, management and resolution of complaints about the professional conduct of lawyers. The investigation of a complaint may result in a variety of disciplinary actions, including imposing fines, issuing reprimands and requiring further education or counselling.22

The VLSB+C also plays an important role in educating lawyers and the community about regulatory and other issues relevant to the legal profession, and the delivery of legal services to the community.23

The Victorian Bar and the Law Institute of Victoria are the professional associations for Victorian barristers and solicitors respectively. The VLSB+C works closely with these bodies, and delegates some regulatory functions to them. For example, the Victorian Bar has a delegation from the Victorian Legal Services Commissioner that allows it to handle complaints concerning barristers, in recognition that barristers are a discrete, specialised cohort of the legal profession.24 The Victorian Legal Services Commissioner determines which complaints to refer to the Victorian Bar; oversees the conduct of all investigations; and is ultimately responsible for making the final decisions on their outcome.25

The Supreme Court of Victoria plays an important overarching role in the admission of lawyers to the legal profession. It is the only body that may admit and remove a lawyer from the Roll of Legal Practitioners.26 Removal from the Roll of Legal Practitioners means that a lawyer is no longer able to practise.

Admission to the legal profession

To become a lawyer, a person must meet the requirements outlined in the Admission Rules. The broad steps involved in the admission process are displayed in Figure 15.2.

Figure 15.2: Requirements to practise as a lawyer 26
Figure 15.2- Requirements to practise as a lawyer

In summary, to become a lawyer, it is necessary to:

  • hold an approved degree, which requires completing compulsory ‘academic areas of knowledge’ or subjects, including legal ethics27
  • undertake practical legal training, which is designed to give legal practitioners the necessary day-to-day skills to practise, including understanding and applying legal ethics requirements28
  • formally join the legal profession, known as ‘admission to practice’, being admitted to the legal profession essentially means that a person has completed the required education and training, is considered a ‘fit and proper person’ by the VLAB and the Supreme Court, and has signed the Roll of Legal Practitioners.
‘Fit and proper person’ for admission to the legal profession

While satisfying the education and practical legal training requirements to become a lawyer is reasonably straightforward, the question of what makes a fit and proper person is more complicated.29 When joining the legal profession, an applicant must be able to show that they can uphold the integrity of the profession and maintain the confidence of the public. Many factors are considered when determining whether a person is fit and proper.

The term ‘fit and proper person’ means that the applicant:

… must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor.30

The test for whether someone is considered a fit and proper person for admission to the legal profession is broad. The Admission Rules require the applicant to provide a range of documents to support their application, including a police report and two statutory declarations confirming the applicant’s character.31

Based on the evidence provided, the VLAB takes into account whether the applicant is of ‘good fame and character’, whether they have been found guilty of an offence, and other factors.32 Further information may be requested to support an application and the VLAB may also require that the applicant attends a meeting with the Chair and Chief Executive Officer of the VLAB, who may ask questions about the matters that have been disclosed and examine the applicant’s insight into why the VLAB may have concerns about anything disclosed. The discussion is intended to be frank and honest, though informal.33

If satisfied that the applicant meets the admission requirements, the VLAB may recommend to the Supreme Court that they be admitted to the legal profession, and issue the applicant with a ‘compliance certificate’.34 The applicant then attends a ceremony at the Supreme Court, where they are officially admitted to legal practice and where they sign the Roll of Legal Practitioners.

If a person wishes to practise as a barrister, they must meet additional requirements. To become a barrister, an applicant must:

  • be admitted to the legal profession35
  • achieve a minimum passing grade of 75 per cent in the Victorian Bar Entrance Exam to demonstrate legal knowledge in civil and criminal procedure, evidence and ethics36
  • complete a 9–10-week Bar Readers’ Course, which is focused on skills specific to the practice of a barrister, such as advocacy in court, the rules of ethics and principles of good conduct37
  • work under the guidance of a mentor at the Victorian Bar for nine months (in addition to this initial mentor, by the end of the Readers’ Course, all Readers must have a senior mentor who is either a Queen’s or Senior Counsel).38

Practising as a lawyer

Once a person has been admitted to the legal profession, they are not immediately eligible to provide legal advice or legal representation.39 They must first apply for a practising certificate, which must be renewed each year.40 A practising certificate essentially operates as a lawyer’s ‘licence’ to provide legal advice and represent clients.

In order to renew their practising certificate each year, a lawyer must still be considered a ‘fit and proper person’ by the VLSB+C (for solicitors) or the Victorian Bar (for barristers),41 and must also maintain their knowledge of the law through 10 hours of CPD per year.42

Lawyers have ongoing obligations to disclose certain events that may affect whether they are a fit and proper person after they have been admitted. The Uniform Law describes these as ‘automatic show cause’ events; and, if they arise, lawyers are required to provide relevant information to the VLSB+C or the Victorian Bar. Examples of ‘show cause’ events are when a lawyer becomes bankrupt; is charged with or found guilty of certain criminal offences; or fails to hold appropriate insurance.43

If the VLSB+C or the Victorian Bar is not satisfied that a lawyer is a fit and proper person, it can suspend, cancel or impose conditions on the lawyer’s practising certificate. Conditions can include requiring the lawyer to undergo counselling or complete specific legal education or training.44

Duties owed to clients and the court

Lawyers owe a fundamental duty to their client to act in the client’s best interests,45 including:

  • a broad duty of confidentiality
  • a duty to uphold legal professional privilege, which protects confidential communications between a lawyer and a client that are made for the purpose of the lawyer providing legal advice or for use in existing or anticipated legal proceedings.46

Lawyers’ duties to their clients promote trust and remedy the imbalance of power between lawyers and their clients. These obligations protect clients from conduct by their lawyer that might adversely affect their interests.

In addition to their duties to clients, lawyers have other, paramount, obligations as ‘officers’ of the court. Lawyers must not only obey the law; they must also act ethically, to support the efficient and proper administration of justice.47 As the third arm of government in a democratic society, the court has a role to protect the independence of legal practitioners to support the justice system to operate fairly and effectively.

Lawyers’ duties to the court, based in common law and now specified in professional conduct rules, include:

  • not misleading the court
  • acting with competence, honesty and courtesy towards other solicitors, parties and witnesses
  • being independent and free from bias
  • being frank in their responses and disclosures to the court.48
Continuing professional development

Lawyers’ education requirements do not stop once they are admitted to the legal profession. The law is a complex area that is constantly developing through changes to legislation and new decisions of courts and tribunals.

Ethics education throughout a lawyer’s career is particularly important because, as seen in other types of professional settings, lawyers can become desensitised or unquestioning of accepted ways of doing things, and stop thinking through the ethical implications of a given scenario or new issue that they have not faced before. Lawyers therefore need to maintain and update their skills and knowledge of the law, including its ethical dimensions, throughout their career.

The Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (Solicitors’ Continuing Professional Development Rules) and the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 set out the minimum requirements for CPD for lawyers.

As noted above, to renew their practising certificate, a lawyer must complete 10 units (or hours) of CPD each year, including at least one unit in each of the four compulsory fields:

  • ethics and professional responsibility
  • practice management and business skills
  • professional skills
  • substantive law.49

A CPD unit can be completed in various ways, including by attending seminars, preparing an article for a legal publication or conducting relevant postgraduate studies.50

Lawyers are required to self-assess whether the activities they undertake for the purposes of CPD comply with the relevant rules. The Victorian Bar and the Law Institute of Victoria do not assess CPD course content, but they may require a barrister or solicitor (respectively) to provide evidence that they have met the CPD requirements.51

Compliance and follow-up action relating to continuing professional development

Each year, lawyers may voluntarily disclose that they have not met their CPD obligations, by the required annual assessment date of 31 March. The Victorian Bar and the Law Institute of Victoria work with these lawyers to establish rectification plans, or to assist them to complete their CPD obligations in an allowed timeframe. A rectification plan sets out the steps that a lawyer intends to take so that they will comply with their CPD requirements.

In addition, each year the Victorian Bar and the Law Institute of Victoria randomly audit a number of lawyers’ compliance with their CPD obligations.

In its 2019 Annual Report, the VLSB+C reported that the Victorian Bar worked with 34 barristers who had disclosed they had not met their CPD obligations during 2018–19. All but one completed the requirements subsequently and one barrister was exempted on medical grounds. The Victorian Bar also conducted random audits of 105 barristers and found that two members had not met their CPD requirements: one member had retired and another was exempt due to medical reasons.52

Across the same reporting period, 265 solicitors disclosed to the Law Institute of Victoria that they had not met their CPD obligations. These solicitors were required to complete rectification plans, with 13 failing to complete these successfully. The 2019 Annual Report does not detail the outcome for these 13 solicitors, aside from noting that appropriate action was taken in line with the CPD policy.53 In addition, the Law Institute of Victoria conducted a random audit of 550 solicitors. Nineteen solicitors had not met their CPD requirements and the Law Institute of Victoria ‘commenced follow-up action’.54

In 2018–19, these non-compliant solicitors represented 1.4 per cent of all solicitors in Victoria. The number of solicitors who failed to complete a rectification plan leading to further enforcement action was only 0.16  per cent of all solicitors. Corresponding analysis was not provided for barristers; however, given that just over 2,000 lawyers were reported as practising as barristers for 2018–19, non-compliant barristers over this period represent approximately 1.5 per cent of all practising barristers.55

Both the VLSB+C and the Victorian Bar are currently reviewing or have recently reviewed the educational services offered as part of CPD. This is discussed further below.

Complaints about lawyers

Lawyers are held to account for their professional conduct in several ways, including through complaints to the relevant regulatory bodies. Complaints can be about:

  • disciplinary matters, which involve unsatisfactory professional conduct or professional misconduct
  • consumer matters, such as those relating to disputes about lawyers’ costs.56

Unsatisfactory professional conduct includes ‘conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer’.57

The more serious matter of professional misconduct includes:

  1. unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
  2. conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.58

A variety of conduct may amount to unsatisfactory professional conduct or professional misconduct, including breaches of professional rules, committing a serious offence or charging more than a fair and reasonable amount for legal costs.59

Complaints or information about the misconduct of lawyers can be received in a number of ways, including as a result of lawyers’ obligations to disclose ‘show cause’ events (outlined earlier), complaints lodged by clients or complaints lodged by other members of the legal profession.60 Regulators can also initiate ‘own motion’ investigations into lawyers’ conduct, based on their own concerns or referrals from other bodies, such as the courts.61

As noted earlier in this chapter, the relevant body for handling complaints is the Victorian Legal Services Commissioner, which has delegated this role in part to the Victorian Bar in the case of barristers.

Figure 15.3 gives an overview of the complaints made about lawyers in Victoria in 2018–19.

Figure 15.3: Complaints about lawyers, Victoria, 2018–19 62
Figure 15.3- Complaints about lawyers, Victoria, 2018–19

Regulators have several tools available when considering the most appropriate approach to resolving a complaint. The VLSB+C outlines a ‘Compliance and Enforcement Pyramid’ setting out the graduated use of interventions: education and informational activities; negotiated or agreed penalties; disciplinary penalties; and finally, regulatory penalties, including cancelling a practising certificate or removing a lawyer from the Roll of Practitioners.63

The VLSB+C considers several factors when determining which regulatory tool is appropriate, including the nature and seriousness of the behaviour and its consequences, and the circumstances of each case.64

Reporting misconduct of other lawyers

Solicitors in Victoria have discretion to report suspected misconduct of another lawyer to the VLSB+C. The Solicitors’ Conduct Rules require that a solicitor must have ‘reasonable grounds’ to report another lawyer and the allegation must be made in good faith. That is:

… a solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide [in good faith] and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.65

The Barristers’ Conduct Rules do not contain a similar rule in relation to reporting suspected barrister misconduct to the Victorian Bar or VLSB+C.

Lawyers are currently only required to report very limited misconduct matters. A lawyer must report to a regulator if they ‘believe on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law firm’.66

Ethical and practice support

Lawyers are often required to deal with complex, sensitive matters. Ethical issues can arise in a variety of situations during the course of a lawyer’s everyday work; for example, in relation to a potential conflict of interest between two different clients or between a lawyer’s own interests and those of their client. Ethical issues may also involve circumstances where a lawyer is concerned that their client may present a risk to someone’s safety.

The professional conduct rules provide some guidance about how lawyers should approach such matters, but given the many situations in which ethical issues can arise, a number of support services, resources and guidance materials are also available through the Law Institute of Victoria and the Victorian Bar for members. There are also services that provide broader wellbeing and practice support to lawyers, such as assistance with mental health issues.

Solicitors in Victoria can seek assistance from the Law Institute of Victoria’s Ethics Support Line, which provides telephone advice on ethical issues.67 Assistance is also available from the Law Institute of Victoria’s Ethics Committee, which considers solicitors’ requests for rulings on ethical issues.68 The Law Institute of Victoria also produces Ethics Guidelines, which contain further information on specific ethical issues that may arise in the course of a lawyer’s practice, including case studies on particular circumstances and scenarios.69 An Ethics Information Hub, available on the Law Institute’s website, provides solicitors with online information about various ethical issues, including links to relevant court decisions, frequently asked questions about ethics and ethics rulings from disciplinary proceedings.70

In addition, the Law Institute of Victoria offers the LIVwell Program, which is ‘designed to help members build and develop their wellbeing skillset and resources through a range of events, activities, services and support’,71 as well as a mentoring program that connects lawyers to more experienced colleagues to discuss issues that arise through their practice.72

The Victorian Bar Ethics Committee assists barristers with managing ethical issues they may face in their practice. Guidance from the Ethics Committee can be obtained by requesting a formal resolution on the proper way to deal with an ethical dilemma, seeking urgent individual advice and informal discussions with a barrister prior to a formal request being made for a resolution.73 Bulletins from the Ethics Committee are also published to provide guidance on common ethical issues, particularly in circumstances where similar issues have arisen on numerous occasions.74

The Victorian Bar’s Health and Wellbeing Committee also assists the Victorian Bar with the provision of education, encouragement and support to barristers.75 A counselling service is available for members (or immediate family members who are supporting a member in need) who are experiencing mental health and wellbeing issues. The service offers sessions with a clinical psychologist who has specialist knowledge of the particular stresses faced by barristers in the work they undertake.76 The Victorian Bar has implemented several health and wellbeing initiatives during 2020, including mental health awareness training, and is developing a health and wellbeing online portal.77

Challenges and opportunities

The Commission consulted with legal professional associations and regulators in Victoria and across Australia to gain an understanding of the current framework and opportunities for reform. A list of agencies consulted can be found at Appendix G.

The Commission also undertook literature reviews and assessed alternative models and approaches in other Australian and international jurisdictions, including aspects of legal profession frameworks in the United Kingdom, Canada and New Zealand.

This section outlines the main issues identified by the Commission through these consultations and reviews. There are six broad issues:

  • public trust and confidence in the legal profession
  • adequacy of the admission process
  • ethical and professional conduct rules, including the duty of confidentiality, conflict of interest and maintaining professional boundaries
  • legal ethics education and support services
  • complaints about lawyers and reporting and investigation mechanisms
  • access to lawyers for people in police custody.

These topics are discussed in turn below.

Public trust and confidence in the legal profession

As noted above, lawyers’ ethical duties and obligations support the integrity of the criminal justice system and the administration of justice more broadly.

The Law Council of Australia has noted the importance of these obligations, reinforcing that lawyers ‘are vested with a unique, paramount duty to the court and to promote the rule of law, which goes to the very heart of our democracy’.78 The Victorian Bar highlighted Justice Brennan’s observation that the ‘law is administered more frequently and more directly by legal advisers than it is by judges’, pointing to the unique role lawyers play in promoting the administration of justice.79

Professor Gino Dal Pont, professor of law at University of Tasmania, has stated that ‘[t]rust in the legal profession … may translate to trust in the administration of justice’.80 This sentiment was reflected in Victoria Legal Aid’s submission to the Commission, which noted that lawyers’ duties to their clients:

… are a necessary precondition for maintaining a relationship of trust and confidence between lawyers and their clients, as well as general trust in the integrity of the legal profession and the legal system.81

The use of Ms Gobbo as a human source involved fundamental breaches of crucial safeguards that support the fair operation of the criminal justice system. While stakeholders such as the Law Institute of Victoria noted that Ms Gobbo’s conduct is not representative of the conduct and attitudes of the legal profession, it has been acknowledged that her conduct may have diminished the public’s confidence in the profession and the administration of justice.82

Since revelations of Ms Gobbo’s conduct, the potential for such detrimental impacts on public trust has been noted in many media articles.83 The Law Institute of Victoria has recognised that Ms Gobbo’s conduct ‘will contribute to potential public concern about whether [clients] can trust their lawyer to keep their communications confidential’.84

Former President of the Law Council of Australia, Mr Arthur Moses, SC, has commented that any threats to legal professional privilege may negatively affect a client’s willingness and confidence to interact openly and honestly with their lawyer and may have a ‘chilling effect’ on the lawyer/client relationship and the administration of justice. He explained:

Clients should know their legal adviser will not disclose information they provide. This confidence is necessary for them to develop a full understanding of their rights and responsibilities under Australia’s complex, ever-changing system of laws.85

Community distrust in lawyers may not only affect trust in the justice system, but also act as a barrier to people accessing legal services, particularly in the case of vulnerable groups, such as young people, people from culturally and/or linguistically diverse backgrounds and Aboriginal and Torres Strait Islander people.86

Adequacy of the admission process

In Chapter 7, the Commission notes that in 1997, Ms Gobbo likely misled the then Board of Examiners in seeking admission to the legal profession.87 The Commission has examined the current admissions process as part of its inquiry into aspects of legal profession regulation.

As noted above, applicants for admission as a lawyer are required to disclose certain information to the VLAC (acting on the VLAB’s behalf) to confirm that they are a ‘fit and proper person’.88

Under the Uniform Law, the VLAB may ‘communicate with, and obtain relevant information from Australian or foreign authorities or courts in connection with the consideration of an application for a compliance certificate’.89 The VLAB told the Commission that it has experienced challenges with requesting documents from agencies such as Centrelink (in relation to failures to provide information on income from other sources) and Victoria Police (where information may not be released if charges are not laid) to support its assessment of the fitness of the applicant for admission. Privacy restrictions have prevented documents being released to both the applicant themselves and the VLAB.90

The VLAB noted that while such circumstances are uncommon, it would be useful for it to have a power to obtain information and/or documents from Victoria Police and other agencies such as Centrelink.91 The VLAB considered that it would have benefited from such a power in six to eight instances in the past three years, and that such information could assist to determine whether an applicant is a fit and proper person to be admitted to the legal profession.92

The VLAB advised that no other equivalent admissions authority in Australia has a similar power to seek information and/or documents.93

Ethical and professional conduct rules

As described above, the professional conduct rules are a key source of lawyers’ ethical duties and obligations.

The Commission received submissions on potential areas for improvement in three main areas of the professional conduct rules: the duty of confidentiality; conflict of interest; and maintaining professional boundaries. These are discussed in turn below.

The duty of confidentiality

Lawyers owe a broad duty of confidentiality to their clients, enshrined in the professional conduct rules, which means they are not permitted to disclose confidential information learned from a lawyer–client relationship.94 As discussed in Chapter 4, together with legal professional privilege, the duty of confidentiality is central to facilitating and preserving the trust between a client and their lawyer. It also supports the operation of the justice system by ensuring that people can obtain frank legal advice and provide all relevant information to their lawyer without fear of such information being misused.95 In turn, this assists lawyers in providing better advice and representation to their clients, and ultimately supports the public’s long-term trust in lawyers and the justice system.96

Given the significance and importance of confidentiality to the lawyer–client relationship, there are only very limited circumstances in which lawyers can release information that is subject to the duty.

Some of the key exceptions to the duty of confidentiality relate to lawyers disclosing information to prevent the commission of criminal offences or harm being caused. These are outlined in Table 15.1.97

Table 15.1: Key exceptions to the duty of confidentiality in the professional conduct rules98

Professional conduct rules

     Exception to the duty of confidentiality

Solicitors’ Conduct Rules

  • may disclose information for the sole purpose of avoiding the probable commission of a serious criminal offence
  • may disclose information for the purpose of preventing imminent serious physical harm to the client or to another person.

Barristers’ Conduct Rules

  • where a client informs their barrister that the client intends to disobey a court’s order and the barrister believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety, the barrister can advise the court or the opponent
  • where a client threatens the safety of any person and the barrister believes on reasonable grounds that there is a risk to any person’s safety, the barrister may advise the police or other appropriate authorities.
The exceptions to confidentiality in the Solicitors’ Conduct Rules

As outlined in Table 15.1, under the Solicitors’ Conduct Rules, a solicitor may disclose information where it is done for the purpose of preventing ‘imminent serious physical harm’ to a client or another person. A solicitor may also disclose information where it is done ‘for the sole purpose of avoiding the probable commission of a serious criminal offence’. The rules do not specify to whom the information may be disclosed, focusing on the permitted purposes for disclosure.

The VLSB+C noted that the concepts of ‘imminent’ and ‘serious’ physical harm are vague:

On a plain reading of the rule, it appears that a solicitor may not disclose information for the purpose of preventing physical harm that is serious (but not imminent) or physical harm that is imminent (but not serious).99

The VLSB+C also noted that it is unclear what constitutes a ‘serious criminal offence’, querying the practical utility of the rule.100

The Law Institute of Victoria considered that exceptions to the duty of confidentiality within the Solicitors’ Conduct Rules are well understood in the profession. In its experience, solicitors seek guidance on their obligations and proposed approach to disclosing information, including through its Ethics Support Line service.101  It observed that issues relating to the exceptions to the duty of confidentiality ‘frequently’ arise for solicitors, particularly where a client indicates that they are at risk of harming themselves. It also noted, though, that its members reported that there were rarely scenarios where they would be conflicted as to whether to disclose confidential information.102

Ultimately, the Law Institute of Victoria suggested there is a need for further guidance and that the matters examined by the Commission are unique, requiring careful, targeted ethics guidance for the legal profession. It suggested such guidance could take the form of an Ethics Guideline issued by the Law Institute, as the profession and courts are familiar with these and find them helpful, although such guidelines are not conduct rules and are not enforceable.103

The Legal Services Council considered that the terms ‘imminent’, ‘serious physical harm’ and ‘serious criminal offence’ in rule 9 of the Solicitors’ Conduct Rules are clear. It argued that ‘attempts to improve “clarity” may limit the scope for sensible, practical interpretations that might well vary according to the particular circumstances’.104

The Law Council of Australia commented that the Solicitors’ Conduct Rules are intended to be higher-level principles of general application.105 The commentary to the rules, also developed by the Law Council of Australia, provides additional information and in-depth guidance to aid solicitors’ understanding of the application of the rules in certain situations, including through case studies and practical examples. The commentary is itself intended to be supplemented by guidance developed by law societies to assist solicitors to apply the rules in daily practice.106

The Law Council of Australia reviewed the rules in 2018. The review did not consider the specific matters that were raised with the Commission regarding the clarity of exceptions to the duty of confidentiality, but did consider whether the definition of ‘harm’ should be extended to include psychological harm or where the client is at significant risk of financial exploitation.107 The Law Council of Australia’s Professional Ethics Committee, which conducted the review, determined that no specific rule changes were required to address the professional conduct issues that led to this Commission. Following feedback from regulatory bodies, legal assistance organisations, government agencies and professional bodies, however, the Law Council has said it will expand the commentary, to provide further guidance to practitioners and explain how to interpret and apply the rules.108

Following the review, the revised rules were endorsed by Law Council of Australia Directors in March 2020. The Law Council of Australia has advised it will progress implementation of the revised rules before expanding the commentary.109 At the time of writing this final report, there is no additional guidance or information about the exceptions to the duty of confidentiality in the commentary, although the glossary does define the term ‘serious criminal offence’.110

In June 2020, the VLSB+C published a regulatory guideline for the legal profession to assist lawyers to understand the circumstances in which they may provide information to police, such as where a client has advised them that they are going to seriously injure someone.111 The guideline outlines the VLSB+C’s position on the scenarios where lawyers should and should not provide information to police, and encourages lawyers to seek the advice of the Law Institute of Victoria’s Ethics Support Line or the Victorian Bar’s Ethics Committee.112

The exceptions to confidentiality in the Barristers’ Conduct Rules

The Victorian Bar told the Commission that the exceptions to the duty of confidentiality are deliberately expansive, given the wide circumstances in which they might operate and the degree of judgement the individual lawyer must exercise in different circumstances. The Victorian Bar also observed that barristers can obtain assistance in the form of individual advice or formal rulings from its Ethics Committee as needed.113

The Victorian Bar recommended that further guidance, if developed, should take the form of supporting commentary to complement the professional conduct rules, as this would enable inter-jurisdictional consistency and guard against the risk of different interpretations.114

The VLSB+C noted that the exceptions in the Barristers’ Conduct Rules are unclear about the degree of risk to a person’s safety that would justify reporting the risk to the authorities.115

The Criminal Bar Association, the peak body for criminal barristers in Victoria, highlighted that barristers who are considering disclosing information in accordance with an exception to the duty of confidentiality will usually seek the advice of a colleague, a senior barrister or the Ethics Committee. The Criminal Bar Association stated that further guidance regarding the term ‘authorities’ used in the rules, and a protocol or agreement about how to provide such information, would be beneficial.116

The New South Wales Bar Association has issued guidance to assist its members to consider whether it may be appropriate to breach confidentiality, outlined in Box 15.1.

BOX 15.1: NEW SOUTH WALES BAR ASSOCIATION GUIDANCE NOTE

In a guidance note published in late 2019, the New South Wales Bar Association noted that the term ‘safety’ used in the Barristers’ Conduct Rules is ‘vague’ and ‘would encompass a range of risks of injury or harm of widely varying degrees of severity’.117 It also noted that the Barristers’ Conduct Rules through the scope of the term ‘safety’ appear to envisage a lower threshold of severity of harm than that contemplated by the Solicitors’ Conduct Rules.118 That is, it appears that barristers may breach confidentiality, where required, to prevent lower levels of harm.

The guidance note also states that the Barristers’ Conduct Rules ‘appear to recognise that a level of [judgement] and discretion is available to barristers … when considering whether to breach confidentiality to report threats to the safety of others’.119

The guidance note advises its members that where a barrister forms the view that there is a real risk to a person’s safety, and it is safe and practicable to do so, they should:

  • attempt to dissuade the client from, or advise them against, taking the course of conduct they are threatening
  • if the client gives no satisfactory reassurance, raise the circumstances with the Bar Association’s ethical guidance panel
  • after having sought advice and concluded that disclosure is warranted, discuss the proposed disclosure with the client (where safe to do so), and explain the need to withdraw from representing the client
  • where possible, help the client to access alternative legal representation
  • stop acting for the client.120

In Canada, the Model Code of Professional Conduct sets out the minimum standard of ethical conduct expected of Canadian lawyers as well as associated guidance.121 The parts of the Code relating to the disclosure of confidential information by lawyers are outlined in Box 15.2.

BOX 15.2: THE POSITION IN CANADA RELATING TO LAWYERS’ DUTY OF CONFIDENTIALITY

The Canadian Model Code of Professional Conduct states that a lawyer may disclose confidential information where they believe ‘on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm’.122

The Model Code provides additional commentary on the application of this rule, including guidance for lawyers on:

  • the factors they should consider when assessing whether a disclosure of confidential information is justified
  • contacting a local law society for ethical advice when contemplating making a disclosure
  • steps lawyers should take to document their actions regarding the information they have received and disclosure they have made.123
Differences in approach in the Solicitors’ and Barristers’ Conduct Rules

As noted above, there appear to be differences in how the Solicitors’ and Barristers’ Conduct Rules express the exception to the duty of confidentiality relating to potential harm. One commentator explains the difference as follows:

… the exception for barristers is limited to threats of harm from the client, whereas the exception for solicitors focuses on whether the disclosure of the confidential information may prevent imminent serious harm or a serious offence.124

Some stakeholders consulted by the Commission suggested that the different wording within the exceptions may have arisen because different organisations held responsibility for drafting each set of rules125 and it may be an ‘accident of history’.126

Although the VLSB+C noted that there is no specific evidence of practical consequences arising from the lack of clarity in the two sets of rules, it argued that there is nonetheless:

  • a lack of clarity in some of the terms and concepts used in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules
  • an unclear rationale for the different approach to how they are expressed, in the context of a ‘fused profession’ (that is, where there is a single admission to practise as a barrister and solicitor, as is the case in Victoria).127

The VLSB+C noted that given the ‘crucial role that obligations of confidentiality play in underpinning client confidence in their lawyers, the limits and exceptions to those obligations should be clear and unambiguous’.128 The VLSB+C suggested that it would be appropriate for the legal profession to have the same, singular rule regarding the disclosure of information about the commission of a serious criminal offence or to prevent physical harm.129

The Law Institute of Victoria told the Commission that the underlying principle supporting the duty of confidentiality and its exceptions are consistent across the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules, despite the differences in language used in the exceptions. In its experience, there are no practical issues arising from the lack of harmony between the rules, given the consistency of the underlying principle.130

The Victorian Bar views the difference between the rules to be ‘inconsequential’ on the basis that they would likely operate the same way in practice.131 The Criminal Bar Association agreed, stating that it is unaware of any current issues in relation to the rules being interpreted differently.132 Both indicated, however, that it would be sensible to harmonise the rules.133

The Australian Bar Association noted that the expressions used in the Solicitors’ Conduct Rules are more prescriptive and potentially set a higher threshold; for example, physical and imminent harm. Although it considered it unlikely that there are differences in practical application, the Australian Bar Association noted that there is an opportunity to improve the formulation of these exceptions, with a focus on the principle that disclosing confidential information is an extraordinary step that must be measured against the threat to public safety.134

The Legal Services Council indicated that there may be a case to harmonise the rules to improve clarity, noting that the lawyer is likely to have the same considerations whether they are a barrister or solicitor.135

Conflicts of interest

Like adhering to the duty of confidentiality, avoiding conflicts of interest is a fundamental obligation enshrined in the professional conduct rules that lawyers must uphold. Conflicts of interest can arise when a lawyer’s duty to their client conflicts with the ethical duties and obligations they owe to another current or former client, or with the lawyer’s own personal interests.136 Such conflicts may affect the ability of a lawyer to act independently and in their client’s best interests.

The Victorian Director of Public Prosecutions (DPP) suggested that the professional conduct rules relating to conflicts of interest could be improved to better address specific issues that can arise for criminal defence lawyers.137 The DPP suggested that the rules should be amended to clarify that in criminal proceedings:

  • instructions should only be obtained from a client, even when another person is paying the lawyer’s fees
  • if there is a conflict between the interests of the client and the interests of the person paying the lawyer’s fees, the lawyer should act in the best interests of the client
  • if there is a real possibility of conflict between the interests of the client and the interests of the person paying the lawyer’s fees, the lawyer should cease acting.138

The DPP also suggested that a rule should be introduced for criminal proceedings that would prohibit defence lawyers from acting in a matter where: (a) they are aware that a witness will give evidence in proceedings concerning their client; and (b) they have acted for that witness in a previous proceeding.139

Regulators and professional associations consulted by the Commission did not raise any specific concerns regarding lawyers’ understanding of their obligation to avoid conflicts of interest.

The Law Institute of Victoria considered that a professional conduct rule covering fee payments for criminal defence lawyers would be unnecessary because existing professional conduct rules regarding a solicitor’s duty to act in the best interests of a client are adequate.140

The VLSB+C suggested that the existing rules are clear that a lawyer is required to act in the best interests of their client. In the VLSB+C’s view, when a client’s interests conflict with those of the person paying their costs, there is little doubt that the client’s interests are to prevail. The VLSB+C was concerned that the prohibition proposed by the DPP could be problematic and prevent lawyers from acting in cases where there is no potential for the misuse of information; for example, where they have acted for a witness in an entirely unrelated matter.141

The Law Council of Australia examined the professional conduct rules relating to conflicts of interest in its 2018 review as discussed above, and concluded that rule 11, which deals with conflicts of interest concerning current clients, was too lengthy, cumbersome and in some areas repetitive. The Law Council recommended that the rule be simplified to express the scope of the duties that might come into conflict (for example, duties relating to trusts, contracts or confidentiality) and the ethical principles involved, such as informed consent.142 As noted above, the revised rules were being implemented at the time of writing this final report.

The Commission understands that in addition to the specific professional conduct rules, a range of general guidance and supporting materials are available for lawyers regarding conflicts of interest, including the commentary to the Solicitors’ Conduct Rules, guidance published by the VLSB+C in June 2020, rulings of the Law Institute of Victoria’s and the Victorian Bar’s Ethics Committees, and the Good Conduct Guide for barristers.143

Maintaining professional boundaries

The VLSB+C succinctly outlined the importance of maintaining appropriate professional boundaries:

A lawyer’s position in the justice system is assisted by the lawyer ensuring that they maintain a professional relationship with their clients. That is because fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges.144

The Victorian Bar also highlighted the importance of barristers maintaining appropriate professional boundaries, noting that professional detachment is essential for a barrister to maintain objectivity and independence.145

As noted in Chapter 7, the Commission heard evidence that Ms Gobbo socialised extensively with some of her clients. Some former peers of Ms Gobbo, including barristers with whom she shared chambers, made observations about her interactions with both clients and police officers.146 In a statement provided to the Commission, Mr Robert Richter, QC, who shared chambers with Ms Gobbo and worked with her on various matters, said:

There were observations as well as rumours circulating about Ms Gobbo’s personal intimacy with her clients, other people’s clients and police officers—in professional as well as private contexts—which we considered had the potential to give rise to conflicts of interest because her conduct seemed to lack discretion and a sense of what was appropriate.147

The Commission explored the regulatory approach and the nature of the guidance provided to lawyers about maintaining appropriate professional boundaries, and asked stakeholders about their views on the current regulatory approach to professional boundaries.

There is no specific professional conduct rule that outlines the appropriate parameters for a lawyer’s relationship with their clients or other people with whom they interact on a frequent basis, such as police officers. The Australian Bar Association and the Criminal Bar Association agreed that guidance in this area could be improved.148

The Criminal Bar Association considered that guidance should be provided to lawyers about how socialising with clients intersects with their ethical duties and obligations, and the need to exercise caution. It suggested greater specificity about what constitutes an appropriate relationship between a barrister and a client, which could take the form of a specific rule or further guidance and education on professional boundaries.149

The Victorian Bar has been addressing the issue of professional relationships through several recent initiatives, including:

  • a review of the Victorian Bar’s education services
  • implementing a targeted CPD seminar on ‘professional relationships with clients’
  • developing guidance notes on the specific ethical issues that might arise in the context of barristers’ professional relationships
  • educating mentors about expressly addressing the topic with those they mentor
  • reminding members that where they have concerns about the nature of their relationship with a client, they are able to seek guidance from the Ethics Committee.150

The Law Institute of Victoria noted that issues relating to maintaining appropriate professional boundaries are currently addressed in ethical seminars and that lawyers understand these boundaries in their interactions with clients.151

As noted earlier in this chapter, the VLSB+C has published a guideline about lawyer conduct in providing information to police.152 The guidance also addresses the importance of maintaining professional independence and offers practical guidance on how to limit social interactions with clients, their family members and associates.153

Legal ethics education and support services

As noted above, lawyers’ ethical duties and obligations are drawn from a range of sources, including the common law, legislation and professional conduct rules. The requirement for lawyers to undertake ongoing legal education seeks to ensure that they understand these ethical duties and obligations and how they should be applied in practice.

The Australian Law Reform Commission has noted the importance of legal education:

Education is vital to ensuring lawyers are aware of their legal ethical obligations and are able to consider and apply their obligations in practice. It also plays a key role in shaping legal culture.154

In their joint submission, Emeritus Professor Adrian Evans and his colleagues were critical of the teaching of legal ethics in CPD, stating that legal ethics education in this environment is ‘unregulated and arguably, of minimal benefit’.155

The Commission focused specifically on legal ethics education and did not explore legal education in general, which is beyond its terms of reference. Further, given the constraints of the Commission’s terms of reference, it did not conduct a detailed examination of how legal ethics education is delivered, but rather focused more specifically on how such professional education supports a lawyer’s understanding of and adherence to their ethical duties and obligations.

Legal ethics education throughout a lawyer’s career

Lawyers in Victoria have been required to undertake compulsory CPD since 2004.156 CPD was developed as a means of ensuring that lawyers maintain a certain level of knowledge so that clients can be sure they are receiving sound and current legal advice.157 The topic of legal ethics is a required component of both eligible university degrees for legal admission and as part of ongoing CPD for lawyers.

A range of bodies provide CPD activities that lawyers may access. Professional associations also play a role in CPD, including the delivery of CPD sessions relating to ethics, and the production of formal guidelines and other resources. For example, the Victorian Bar conducts regular training and CPD seminars on legal ethics and professional responsibilities.158

Concerns raised with the Commission regarding CPD requirements included that, while every lawyer must complete 10 hours of CPD each year, the CPD activities undertaken need not have a strong link to the lawyer’s practice or professional needs.159 The VLSB+C and the Law Institute of Victoria observed that the CPD market seems to be geared towards lawyers gaining the ‘points’ they need to fulfil the CPD requirements, rather than encouraging lawyers to engage with the material, gain knowledge and address their professional needs.160

During the Commission’s inquiry, the VLSB+C commenced a review of the current CPD arrangements in Victoria, to examine matters such as:

  • the accessibility, quality, relevance and costs of CPD activities
  • views of the Victorian legal profession, and other relevant stakeholders, on the value of the current CPD scheme (in particular, whether it is meeting the current and future needs of the legal profession)
  • the VLSB+C’s effectiveness in regulating CPD
  • any problem areas in the current CPD scheme
  • any opportunities for potential improvements, and the risks and challenges of these opportunities.161

Emerging themes from the VLSB+C’s CPD review included:

  • opportunities for the VLSB+C to issue additional guidance about CPD expectations, including how CPD content and delivery needs to improve and what practical matters are included in the four compulsory fields: ethics and professional responsibility; practice management and business skills; professional skills; and substantive law
  • feedback from stakeholders that ethics CPD units are traditionally dry and rules-based, without practical, content-rich scenarios
  • recognition that education provided to junior lawyers is particularly important, to shape and guide their future career in the law.162

The review is expected to be finalised by the VLSB+C’s Board in late 2020.163

The VLSB+C told the Commission that, while it holds the power to make policies about CPD content, approve CPD activities, make CPD categories subject to certain requirements and require additional CPD for barristers, similar powers do not exist for solicitors’ CPD and would be useful.164

Support services and resources for lawyers on ethical issues

Support services and resources are important for helping lawyers understand their ethical duties and obligations under the professional conduct rules. Advisory bodies such as ethics committees can act in a preventative way— by helping lawyers to discuss and resolve ethical dilemmas before they escalate and potentially result in misconduct or detrimental impacts on the lawyer’s wellbeing.

Issues that can arise for a lawyer may often converge; for example, there is often a relationship between wellbeing issues and professional misconduct.165 Consequently, it is important that lawyers also have access to support services that focus on wellbeing. The Law Institute of Victoria has recently undertaken work focused on assisting solicitors through a combination of ethics, wellbeing and practice support—recognising the different aspects of legal practice, and how they intersect and interact.166

The Commission heard that in circumstances where Ms Gobbo was acting for clients about whom she had also provided information to Victoria Police, she did not seek the assistance of established support services, such as a ruling from the Ethics Committee of the Victorian Bar, to check whether her conduct was appropriate.167

As part of its examination of legal profession regulation, the Commission considered the nature and extent of professional supports available to lawyers in Victoria.

Ethical and wellbeing support services for Victorian barristers

The Victorian Bar told the Commission that it seeks to ensure that barristers faced with ethical issues have access to sufficient support services and resources to navigate those issues carefully. It also seeks to embed a comprehensive understanding of professional duties and obligations among all members so that they are equipped to deal with the ethical issues that will inevitably arise in their practice.168 As noted above, barristers may access support from the Victorian Bar Ethics Committee, which has issued approximately 300 resolutions since January 2015. Since 2015, 18 Ethics Committee Bulletins have been published and the Victorian Bar is currently reviewing the ethics resources it makes available.169

The Victorian Bar has focused on a range of health and wellbeing initiatives in 2020, including:

  • delivering 19 virtual wellbeing events, mental health awareness training, COVID-19 webinars and inclusive virtual social activities to keep members connected during the COVID-19 pandemic
  • working to establish an online health and wellbeing portal, which is anticipated to be completed in late 2020
  • undertaking literature reviews of studies into mental health in the legal profession.170

The Criminal Bar Association advised that the supports available to assist with an ethical issue are ‘sufficient, sound and strong’. It noted that the support services available to barristers are outlined in the Bar Readers’ Course and are reinforced during a barrister’s initial period of practice with a mentor.171

Ethical and wellbeing support services for Victorian solicitors

Solicitors in Victoria access support services to help them understand and deal with ethical issues. The Commission heard from the Law Institute of Victoria that the number of queries received through its Ethics Support Line indicates a high level of engagement with the profession on these issues.172 In its 2019–20 annual report, the Law Institute of Victoria noted that it received more than 5,300 enquiries to its ethics and practice support enquiries line, with practice support calls making up 55 per cent of the enquiries, and ethics-related calls 45 per cent. The Law Institute’s Ethics team delivered 73 seminars on topics derived from the queries received on the ethics and practice support lines.173

The Law Institute’s Ethics Committee met seven times in 2019–20 and provided rulings on 15 matters and informal advice on other matters that did not require a formal ruling. The Law Institute’s Guidelines Review Sub-Committee is in the process of developing three ethics guidelines for the profession.174

A number of other ethics-related projects were implemented by the Law Institute of Victoria from 2019 to 2020, including re-commencing the publication of de-identified Ethics Committee rulings in the Law Institute Journal and a series of short videos addressing ethical issues.175

Awareness of ethical and wellbeing support services among lawyers

The Law Council of Australia noted that, while it supports the efforts of professional associations in providing guidance, there could be more widespread awareness of and/or education about the availability of these services.176

The Law Institute of Victoria told the Commission that it is difficult to estimate levels of awareness about its services among the legal profession. While there is no current data available in relation to awareness of the services offered, it noted that there is information about the frequency of access to some services.177 In addition to the number of enquiries received by the Ethics Support Line (noted above), in 2019, more than 100 solicitors participated in the Law Institute of Victoria’s Mentoring Program.178

The Australian Bar Association believes that barristers are aware of the services they can access.179 The available data shows that 53 barristers and six immediate family members accessed the Victorian Bar’s counselling service between July and December 2019.180

The VLSB+C noted that notwithstanding the number of enquiries received on ethics and practice support, there is room to improve the profession’s awareness of available ethics assistance. It told the Commission it intends to publicise support services on its website and develop targeted communications along with guidance on key themes arising from disciplinary actions.181

Complaints about lawyers and reporting and investigation mechanisms

As outlined above, any person can make a complaint about the conduct of a lawyer. There are various ways in which matters relating to unsatisfactory professional conduct or professional misconduct can be raised with a regulator. These include: a client making a complaint; a lawyer reporting certain matters (such as a ‘show cause’ event); and a lawyer voluntarily reporting the suspected misconduct of another lawyer.

A complaint can lead to an investigation and potentially to sanctions, including a lawyer no longer being permitted to practise.

In Ms Gobbo’s case, one of her former clients, Mr Carl Williams, complained to regulators about her conduct and a potential conflict of interest in 2006.182 Ms Roberta Williams also made a complaint about Ms Gobbo in 2008.183 Some lawyers also informed the Commission that they were concerned about her professional behaviour.184

Mr Williams’ complaint was unsuccessful and was considered ‘misconceived and lacking in substance’.185 Ms Williams’ complaint was summarily dismissed.186 It may be that regulators preferred Ms Gobbo’s deceptive account given Mr Williams’ criminal history. It is worth contemplating, however, if Mr Williams’ complaint had been corroborated by lawyers who also held concerns about Ms Gobbo’s conduct, whether a more thorough regulatory investigation might have occurred and her unethical conduct exposed much earlier.

Mandatory reporting of suspected misconduct in the legal profession

The Commission examined whether it should be mandatory for lawyers to report the suspected misconduct of their peers.

This issue is relevant because, as noted above, the Commission understands that some of Ms Gobbo’s fellow members of chambers and other colleagues, while not aware of her activities as a human source, held concerns about aspects of her conduct, including socialising with clients and police officers.187

Despite these concerns, the Commission could find no evidence that any of her fellow lawyers or colleagues made complaints about Ms Gobbo to a regulator around that time.188

Different perspectives were put to the Commission in relation to mandatory reporting. These are outlined below, along with some of the approaches taken in other jurisdictions and professions.

Arguments for and against mandatory reporting

Some stakeholders suggested that a reporting obligation is an important aspect of regulation—one that is best pursued by a mandatory requirement, rather than a voluntary, opt-in approach. The rationale for this view is that the integrity of the legal profession can be maintained only if the conduct of lawyers in breach of the professional conduct rules is reliably brought to the attention of regulators. Such reporting works ‘to remove bad lawyers from the practice, deter others from engaging in misconduct, [and foster] public confidence in the profession’.189 It enhances the public image of the legal profession and promotes professionalism.190

It has been suggested that lawyers are well placed to report suspected misconduct of other lawyers:

Lawyers, because of their training in the law, and their day-to-day interactions with other lawyers, are better situated than most to observe and evaluate the conduct of other [lawyers].191

A 2019 study of around 15,800 disciplinary complaints made against 4,180 Victorian lawyers over a 10-year period found that while 7 per cent of complaints were made by other lawyers, 91 per cent were lodged by clients or members of the public, and 2 per cent were lodged by the VLSB+C itself.192 The research noted that while lawyers are well placed to observe and assess the misconduct of their peers, ‘this finding raises questions about barriers to lawyers speaking up about poor performance within the profession’.193

It has been argued that a mandatory reporting requirement could, in part, address the general reluctance of lawyers to report the misconduct of their peers. Professor Dal Pont, for example, has observed that unless there are sufficient protections in place in the process of reporting, it is unlikely that lawyers will report on other lawyers’ misconduct, especially given the collegial culture of the legal profession.194

A concern raised in relation to mandatory reporting is the risk that reports may be made vexatiously; that is, a report made falsely without evidence or not in good faith. Similar concerns have been raised regarding the introduction of mandatory reporting requirements in other professions, such as health practitioners.195 A 2018 study, however, found that the number of vexatious health practitioner complaints dealt with in Australia and internationally is very small (less than 1 per cent) and that under-reporting of well-founded concerns is likely a far greater problem.196

Both the New South Wales Office of the Legal Services Commissioner (OLSC) and the Bar Association of Queensland noted barriers to the self-reporting of potential misconduct by lawyers and for lawyers reporting the conduct of other lawyers. The Bar Association of Queensland noted that there is a reluctance in the legal profession to report colleagues.197 It also noted that there is no significant difference between lawyers and medical practitioners, who are currently obliged to report suspected misconduct of their peers.198

The OLSC considered that a mandatory reporting mechanism would help to prevent conduct similar to Ms Gobbo’s occurring again. The OLSC and Bar Association of Queensland noted, however, that if mandatory reporting obligations were introduced, it would be important to set the requirement at an appropriate threshold, such as serious misconduct.199

The Law Council of Australia stated that there is an argument for mandatory reporting of suspected misconduct but added that comprehensive consultation with relevant stakeholders would need to occur to ensure that all potential ramifications were considered.200

The Legal Services Council noted that the introduction of mandatory reporting requirements would need careful consideration due to the practical, evidentiary and other issues that may impact on such reporting.201

The Law Institute of Victoria does not support a mandatory reporting requirement, suggesting it would create more problems than it would solve, and would be damaging for the profession and ultimately detrimental to the justice system. Particularly, the Law Institute highlighted the potential for a mandatory reporting requirement to erode professional collegiality, and to dissuade lawyers from seeking advice and guidance from their peers to prevent and resolve ethical issues, which may lead to an unsatisfactory outcome for their clients and ultimately the community.202

Similarly, the Victorian Bar does not support introducing mandatory reporting due to concerns about how such a mechanism might affect both the reporter of the conduct and the lawyer being reported. The Victorian Bar’s concerns include the:

  • risk (perceived or actual) of the reporter suffering victimisation, which could lead to a lack of reports
  • disruptions to the conduct of hearings if the obligation to report is used as a weapon
  • impact on the mental health of the reported barrister where mental health and wellbeing is already challenged by the nature of the job.203

The Victorian Bar further noted that any such requirement would be followed by an increase in reports. This in turn would require increased resources to deal with investigations and create flow-on impacts, because disclosures would then be required for insurance and practising certificate renewals (and, for barristers, silk applications).204

The Victorian Bar argued that lawyers should be empowered to use their own judgement in deciding whether to report conduct or make complaints about their peers, and noted that barristers can currently make such reports and complaints under the Victorian Bar’s conduct policies or its Grievance Protocol.205

If a mandatory reporting mechanism were introduced, however, the Victorian Bar recommended that it be confined to situations where a lawyer reasonably believes that serious misconduct has occurred, reflecting the requirements that apply to barristers in the United Kingdom and New Zealand. The Victorian Bar noted that serious misconduct would need to be defined carefully and not include issues of competence or impairment unless they posed a serious risk to the public or would diminish public trust and confidence in the profession. The Victorian Bar also noted that any mandatory reporting mechanism would need to be subject to rules or exceptions that recognise the lawyer’s duty of confidentiality to their clients. To ensure clarity about any new mechanism, it suggested that guidance could be included in the supporting commentary to the professional conduct rules, such as a non-exhaustive list of the types of conduct that would meet the reportable threshold.206

The Australian Bar Association noted that significant complexities and challenges would be associated with imposing a mandatory reporting obligation on the legal profession, particularly for barristers.207 It raised several concerns, including that:

  • the collegial nature of the Bar could be undermined and conduct driven underground, with barristers less likely to seek assistance and guidance from their colleagues
  • there is an inherent potential for abuse; the requirement could encourage reports for a collateral purpose such as in litigation
  • it could impact on the orderly progress of litigation while complaints are investigated or alternative counsel briefed, leading to delays, costs and wasted court resources
  • it could result in breaches of legal professional privilege, as the conduct could arise from instructions or matters subject to privilege.208

The VLSB+C noted that while a mandatory reporting requirement could lead to a range of benefits, the key question is whether such a requirement is necessary. It observed that the legal profession and regulators have a shared role in upholding professional standards and a shared responsibility in maintaining integrity and public confidence in the profession. These stem from a lawyer’s fundamental duty to the court and the administration of justice.209 The VLSB+C considered that lawyers should already be reporting genuine suspected misconduct, even in the absence of a mandatory reporting obligation.210

The VLSB+C noted that there would be practical impacts from a new reporting obligation, including lawyers’ time spent documenting, reporting and providing statements to the VLSB+C, along with regulators’ time and resources spent assessing and investigating reports and potentially bringing disciplinary actions. Like other stakeholders, the VLSB+C expressed concern that mandatory reporting could weaken the collegiality of the profession and reduce the amount of informal but valuable ‘intelligence’ it currently receives about potentially worrying lawyers or firms.211

The VLSB+C suggested that while a mandatory reporting obligation would have benefits such as reinforcing lawyers’ shared responsibility to guard the integrity of the profession and a degree of protection for the reporter, overall, the potential benefits of such an obligation would not outweigh the challenges it would create.212

International approaches to mandatory reporting

Mandatory reporting requirements for lawyers have been considered extensively and implemented in similar jurisdictions overseas. Jurisdictions that require lawyers to report on the suspected misconduct of other lawyers include the United States of America, the United Kingdom, New Zealand, Canada and Hong Kong.213

Mandatory reporting requirements in the United Kingdom are outlined in Box 15.3.

BOX 15.3: MANDATORY REPORTING IN THE UNITED KINGDOM

In 2018–19, the Solicitors Regulation Authority (SRA) in the United Kingdom emphasised the important role of mandatory reporting obligations, stating that it is:

… critically important in a profession founded on trust and integrity, for the development of personal accountability, for shared values, and a culture of openness which allows for learning from mistakes. It is also important to ensure effective regulation, enabling us to have timely receipt of potential risks and issues and to identify whether we need to take any action.214

It further asserted that:

… reporting behaviour that presents a risk to clients, the public or the wider public interest, goes to the core of the professional principles of trust and integrity. All solicitors and firms have a role in helping maintain trust in the profession.215

Through consultations, the SRA found that it was important for the obligation to be drafted so that the decision maker, and not the lawyer reporting, decides whether conduct is a serious breach. The obligation states that reports should comprise ‘facts or matters’ that may equate to a serious breach, ‘rather than allegations identifying specific and conclusively determined breaches’. The SRA noted that it does not consider this leads to over reporting, and that early reporting helps to ensure that the SRA is aware of trends and can respond appropriately.216

The SRA also agreed with stakeholders that the obligation should contain both a subjective element and an objective element—meaning that it is necessary to hold the belief and that the belief was reasonable, ‘bearing in mind the circumstances, information and evidence available to the decision-maker’.217 The SRA considered that the obligation should contain both elements to prevent reporting of ‘mere allegations or suspicion’.218

The SRA also noted that it was important for the obligation to protect the people who report.219 The updated obligation thus states that no person can be subjected to ‘detrimental treatment’ for making a report, regardless of the outcome.220

The SRA has prepared guidance to support the operation of the mandatory reporting obligation.221

The United States also has mandatory reporting requirements in some of its jurisdictions. The mandatory reporting requirements in the United States are outlined in Box 15.4.

BOX 15.4: MANDATORY REPORTING IN THE UNITED STATES OF AMERICA

In the United States, a mandatory reporting requirement is contained in rule 8.3 of the American Bar Association’s Model Rules of Professional Conduct.222

A 2003 comprehensive analysis of mandatory reporting in the legal profession in the United States found that the vast majority of the states and the American Bar Association favoured mandatory reporting and would continue to do so in the absence of a more compelling case to dispense with such rules.223

Although there is not complete consensus about mandatory reporting in the United States, Professor Arthur Greenbaum observed that previous reliance on a voluntary reporting system was found to be a failure and that mandatory reporting was seen as necessary to overcome the general reluctance of barristers to report the misconduct of their peers.224

Guidance to support the operation of mandatory reporting obligations has also been prepared in other jurisdictions with mandatory reporting requirements. For example, the New Zealand Law Society provides information on its website, including about when a report should be made, to whom, the information that must be included, and the types of support available to those making a report.225

Mandatory reporting in other professions

Other professions have introduced requirements to report suspected misconduct of their colleagues to regulators, including in the health and policing fields.

Requirements were created for medical practitioners to report suspected misconduct of their peers in New South Wales and Queensland in 2008 and 2009, respectively.226 The proposal to introduce mandatory reporting requirements for medical practitioners in hospitals in Queensland was described as ‘a very practical way to improve the safety of patients in [Queensland] hospitals and ensure that problems are identified early and acted on’.227

In Victoria, since 2010, the health practitioner national regulation scheme has required health practitioners (including psychologists, nurses and doctors) to notify the relevant regulator of ‘notifiable conduct’ once they reasonably believe the conduct is occurring.228 Notifiable conduct includes a practitioner ‘placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards’.229

The Australian Health Practitioner Regulation Agency has developed guidelines to accompany this requirement, which explain:

  • the mandatory notification requirements
  • the role of the relevant regulator
  • protection available for those making a report.230

Closer to the events that led to this Commission, Victoria Police officers are required to make a complaint to a police officer of a more senior rank to that officer, or to the Independent Broad-based Anti-corruption Commission, about the conduct of another police officer if they have reason to believe that the other officer is guilty of misconduct.231 Misconduct includes conduct likely to bring Victoria Police into disrepute; disgraceful or improper conduct; or conduct that constitutes an offence punishable by imprisonment.232

Investigation of complaints about barristers

As discussed earlier, the Victorian Legal Services Commissioner has delegated authority to the Victorian Bar to investigate complaints regarding barristers; however, the Commissioner retains the power to decide, for each complaint, which body—the VLSB+C or the Victorian Bar—will undertake the investigation.233

The VLSB+C noted that all complaints are generally transferred to the Victorian Bar for investigation where they relate to barristers, unless there is a related complaint regarding a solicitor.234 In comparison, all complaints about solicitors in Victoria are managed by the VLSB+C; its powers are not delegated to the Law Institute of Victoria.235

In 2019, the Victorian Bar and the VLSB+C reviewed the Victorian Bar’s processes, including those covering the management of complaints and investigations. The review considered whether the governance structures and operational arrangements helped to ensure that the Victorian Bar was effectively discharging its powers, performing its duties and implementing its delegated functions.

The review made several observations about the Victorian Bar’s management of its delegated complaints function, including that:

  • processes for gathering information for the purpose of investigating complaints were inefficient (including a culture of ‘letter swapping’, where complainants, respondents and third parties were rarely spoken to for the purpose of eliciting information or testing written statements)
  • investigation reports containing recommendations to the VLSB+C had insufficient detail to explain the basis for those recommendations
  • reporting deadlines stipulated by the VLSB+C were often not complied with, and complainants and respondents were not provided with timely closure of their complaints.236

As a consequence of the review, changes to improve and strengthen the Victorian Bar’s performance of its delegated functions have been developed to:

  • ensure that the processes and procedures used by the Victorian Bar to investigate complaints are aligned with those of the VLSB+C
  • bolster the rigour of the regulatory process, including through the appointment of a special investigator to the Victorian Bar to conduct investigations.237

To strengthen the relationship between the two organisations, the VLSB+C and the Victorian Bar have agreed on a set of principles to govern the co-regulation of barristers in Victoria. The principles set out shared aims, expectations, roles and responsibilities, risk management matters, governance and review processes.238 The two organisations have also developed a joint risk register, along with monitoring and evaluation measures covering delegated functions and projects and plans for annual internal reviews. After two years, an external expert will be engaged to evaluate the collaboration and assess its effectiveness.239

The Victorian Bar noted that a key benefit of it having responsibility for investigating complaints made against barristers is its ability to draw upon the practical insights of its members regarding the accepted standards of advocacy and conduct. It also noted that its model for investigating complaints has the checks and balances of an external regulator, combined with the benefits of utilising the expertise of the legal profession itself.240

The VLSB+C highlighted that key benefits of the current arrangements are the esteem in which the Victorian Bar is held by its members, and its subject matter expertise. It noted that the main challenge arising from these arrangements is the risk that the Victorian Bar may be perceived as lacking—or may in fact lack—the independence necessary to investigate its members.241

The VLSB+C suggested that any risk of an actual lack of independence is largely mitigated by:

  • the VLSB+C retaining responsibility for making all final decisions on investigations regarding barristers
  • the VLSB+C’s oversight of the conduct of investigations
  • the Victorian Bar’s recent employment of a non-member to investigate complaints involving barristers242
  • the Victorian Bar adopting the VLSB+C’s investigative procedures, policies and training for the independent investigator
  • increased reporting to the VLSB+C on investigations.243

In 2016, the Solicitors Regulation Authority (SRA) in the United Kingdom undertook research into the ways in which public trust and confidence in the legal profession can be impacted by regulatory independence. The research ascertained the views of 1,810 members of the public regarding the importance of solicitors’ regulatory independence. Sixty-eight per cent of those who responded reported that they would be more likely to trust a profession that is independently regulated, and 69 per cent said they would be more comfortable making a complaint if the regulator was fully independent of solicitors.244

There has not been significant research examining the independence of legal regulatory agencies in the Australian context, perhaps due to the co-regulatory or self-regulatory models that have primarily been adopted to date.

Access to lawyers for people in police custody

As noted throughout this final report, lawyers support the integrity and proper operation of the broader justice system and help to ensure that accused persons receive a fair trial. Defence lawyers provide independent advice to, and represent, accused persons at various stages of the criminal justice process, including at the point of being arrested and taken into custody by police.

Some evidence before the Commission suggested that there were occasions when Victoria Police charged a person and officers referred them to Ms Gobbo specifically.245 As part of its inquiry into term of reference 6, the Commission examined current Victoria Police processes to support people taken into custody to communicate with a lawyer.

The right to communicate with a lawyer

The involvement of a criminal defence lawyer often begins when a person suspected of committing a crime is arrested and taken into custody by the police. Under section 464C of the Crimes Act 1958 (Vic) (Crimes Act), before police can question a suspect, they must:

  • inform the person that they may communicate, or attempt to communicate with a lawyer
  • afford the person reasonable facilities as soon as practicable to enable the person to do so
  • allow the person’s lawyer to communicate with the person in custody in circumstances in which, as far as practicable, the communication will not be overheard.246

The police officer must defer questioning for a time that is reasonable in the circumstances to enable the person to make contact or attempt to communicate with a lawyer. This is unless the police officer believes on reasonable grounds that the communication would result in an accomplice escaping or evidence being fabricated or destroyed, or the questioning is so urgent, having regard to the safety of other people, that it should not be delayed.247

The Crimes Act obligations are important safeguards to ensure that people taken into custody by police are treated fairly and that their interests are protected from the beginning of their contact with the criminal justice system.

The right of a person charged with a criminal offence to communicate with a lawyer is also enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter), which provides that an accused person is entitled ‘to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her’.248

Victoria Police provided an extract of the Victoria Police Manual to the Commission entitled ‘Exercising their rights to communicate with a friend, relative or legal practitioner’. This section of the manual requires officers to:

Provide the person with reasonable time and facilities to make any required communication. The communication, as far as practicable, should not be overheard (s.464C, Crimes Act), except if the investigating member believes, on reasonable grounds, that communication would result in any of the following:

  • the escape of an accomplice
  • the fabrication or destruction of evidence
  • danger to the safety of other people, if questioning is delayed.

If reasonable grounds do not exist to refuse a person an opportunity to exercise their rights, an interview may be ruled inadmissible.

If the investigating member or supervisor refuses access to communication, the details of such refusal should be recorded in the Attendance Module.249

The Victoria Police Manual does not outline the requirement under section 464C of the Crimes Act to defer questioning for a reasonable time to enable the person to make or attempt to make the communication.250 It does not mention Victoria Police’s obligations under the Charter; nor does it mention a person’s right to independent legal advice or set out procedures for officers to facilitate a person’s access to a lawyer. Similarly, training material for Victoria Police recruits outlines the Crimes Act requirements, but does not emphasise the importance of a person’s right to obtain independent legal advice, or refer to the Charter.251

Victoria Police advised the Commission that aside from these materials, there are no other current policies, procedures or manuals related to referring people charged with criminal offences to a legal practitioner.252

Victoria Legal Aid told the Commission that practical and operational challenges mean that the right of a person in custody to speak with a lawyer before police questioning is not adequately protected. It noted that because there is no centralised pre-interview or referral service, it is difficult for Victoria Police to efficiently connect people with the most appropriate lawyer for their circumstances.

Both the Law Institute of Victoria and Victoria Legal Aid advised that in practice, when a person in custody would like to communicate with a legal practitioner but does not have an existing relationship with a specific lawyer or law firm, Victoria Police will usually provide the person with a telephone book to help them make contact with a lawyer.253

Victoria Legal Aid identified the following issues with providing the telephone book as a means of facilitating access to a lawyer:

  • entries are not arranged by the language spoken, geographic location or what area of law a firm specialises in, making it difficult for people to select a lawyer best suited to their circumstances
  • entries do not display which lawyers are available 24 hours a day, seven days a week, or which services can be accessed at no cost
  • the information may not be current, as many lawyers no longer maintain contact details in hard copy telephone books.254

Victoria Legal Aid commented:

The process of being arrested and taken to a police station is often overwhelming. When presented with a phone book to choose a lawyer to speak with, people find it very difficult to independently find a lawyer who is suited to their presenting legal issue, location or language needs. It is our experience that many people will ask police for a recommendation or guidance.255

To address identified issues, Victoria Legal Aid suggested a range of measures to strengthen requirements and processes, including:

  • stronger obligations to enable people in custody to exercise their right to access pre-interview advice, with clearer requirements to provide a closed, private and safe space, such as an interview room rather than a cell
  • a training course, which could be jointly developed and delivered by Victoria Police and Victoria Legal Aid, on pre-interview advice, addressing the importance of police processes to support people in custody to communicate with a lawyer
  • a newly funded and created centralised telephone number, available 24 hours a day, seven days a week, that would link callers directly to existing services, including to Victoria Legal Aid; the Law Institute of Victoria; and the Youth Referral and the Independent Person Program
  • a dedicated after-hours, pre-interview legal advice telephone service for adults and children in custody or at police stations for questioning, to cover service gaps.256

Recognising that these services and processes would require time and funding to establish, Victoria Legal Aid suggested that in the meantime, adults should be routinely provided with the Victoria Legal Aid Legal Help telephone number, as well as the existing Law Institute of Victoria directory, and that these should regularly be circulated to all police stations.257

The Law Institute of Victoria suggested developing a list of all lawyers in the state who nominate themselves as practising in the field of criminal law, together with their office and out of hours phone number, which could be made available to Victoria Police.258

Conclusions and recommendations

When they are admitted to the legal profession, lawyers agree to uphold high standards of ethical behaviour, reflecting the importance of their independent role in the administration of justice.

The most important ethical duty owed by lawyers is to the court. This duty overrides all others and is designed to maintain the integrity of the administration of justice. It helps ensure that the public interest is being served and not undermined by dishonest or obstructive practices.259 Accordingly, the justice system cannot operate effectively unless lawyers adhere to their ethical duties and obligations. Legal profession regulation exists to ensure that lawyers maintain these high ethical and professional standards. This, in turn, protects consumers of legal services, and supports public trust in the justice system.

The Commission has been mindful of the parameters of its inquiry. It has not conducted a comprehensive review of legal profession regulation, but rather focused on aspects of the regulatory framework that are most relevant to the events it has examined, including whether lawyers’ ethical conduct is appropriately supported and safeguarded, and whether additional measures are needed to effectively prevent, detect and deter improper or unethical conduct.

The Commission is conscious that Ms Gobbo’s conduct does not reflect that of the vast majority of lawyers in Victoria, almost all of whom pride themselves on acting ethically and professionally in the interest of their clients and the community. The Commission is also aware that Ms Gobbo’s aberrant behaviour occurred over a decade ago. It would be unwarranted and disproportionate to recommend sweeping reforms based on the improper conduct of one individual. Instead, the Commission has focused on the operation of the current legal profession regulatory framework and opportunities to strengthen it, informed by a range of stakeholder perspectives and other evidence.

The Commission makes recommendations aimed at:

  • restoring community confidence in the legal profession through targeted communications on lawyers’ ethical duties and obligations
  • enhancing the clarity and consistency of key professional conduct rules, such as the duty of confidentiality, conflict of interest and maintaining professional boundaries
  • promoting awareness and access to ethical support offered to lawyers throughout their careers, including through CPD
  • strengthening the independence of complaints investigations into barristers, so that there is a single consistent approach to the management of complaints regarding all lawyers in Victoria.

Combined with a new requirement for lawyers to report suspected misconduct, these changes will support the continued maintenance of high ethical standards in the legal profession, both to protect consumers and strengthen public confidence in it. The Commission has also identified improvements required to better protect individuals’ rights to communicate with a lawyer while in police custody.

In making the recommendations outlined below, the Commission appreciates that some of the changes may involve divergence from aspects of the Uniform Law, which seeks to harmonise legal profession regulation in the participating states of Victoria and New South Wales. The Commission acknowledges the benefits of consistency in the legal profession regulatory framework across Australia, but notes that, ultimately, it will be a matter for the other participating states to determine whether they could benefit from these recommendations. The Commission is nonetheless satisfied that reforms to certain relevant aspects of the regulatory framework in Victoria are justified.

Reforms to legislation and professional conduct rules will require sufficient time for consultation and drafting; accordingly, the Commission recommends that these be completed within 12 months from the delivery of this final report. Updates to the professional conduct rules should be implemented in the same timeframe. Changes to the delegations for investigating complaints about barristers will require implementation planning for a smooth transfer of functions and may also require up to 12 months.

Communications materials on lawyers’ ethical duties can be prepared more quickly and there is greater urgency, given the need to rebuild public trust and confidence in the legal profession. As such, the Commission recommends these be completed within six months. The Commission also considers that further guidance on the treatment of ethics as part of CPD requirements and enhancement of ethical support services can be completed within six months.

The ability to access legal assistance and advice is vital to a fair and inclusive society. Lawyers are an important source of support and assistance for people who need to engage with the justice system. They provide advice on rights and responsibilities, and how these can be exercised; and they advocate for people in court. Accordingly, it is imperative that members of the public feel confident in accessing the services of a lawyer when needed.

The Commission is concerned that the use of Ms Gobbo as a human source may have diminished the public’s confidence in the legal profession and generated distrust of lawyers. In particular, the Commission is concerned that members of the public may question whether information they provide to their lawyer will remain confidential and whether their lawyer will act in their best interests. If a client has doubts that sensitive information they provide to their lawyer will be kept confidential, they might choose not to provide relevant information or not to obtain legal advice at all, to the detriment of the justice system and our democracy. Stakeholders have acknowledged the potential impact of Ms Gobbo’s conduct on public trust in the legal profession. The Victorian Bar, the Law Institute of Victoria and the Law Council of Australia publicly addressed these issues when the Commission commenced.260

With the inquiry having now concluded, the Commission recommends that legal profession regulators and professional associations in Victoria, in partnership with community legal centres and Victoria Legal Aid, prepare and distribute communications to the public about lawyers’ ethical duties and obligations, and their rights as consumers if dissatisfied with their lawyer, thus providing the community assurance they can have confidence in the conduct of the legal profession.

These communications should be multifaceted to meet the needs of all community members from a range of culturally and linguistically diverse backgrounds. It is especially important that the communications are tailored to those who may be more vulnerable or disadvantaged, and who may already face barriers in accessing legal services. It is vital that such groups are not discouraged from engaging with the legal system and that they understand they can trust their lawyer to advocate for them.

RECOMMENDATION 76

That the Victorian Legal Services Board and Commissioner, the Law Institute of Victoria and the Victorian Bar work with community legal services and Victoria Legal Aid to, within six months, prepare and distribute communications aimed at restoring and promoting public and client confidence in the legal profession. These communications should:

  1. educate clients and the public on lawyers’ ethical duties and obligations, particularly in relation to confidentiality, conflicts of interest and legal professional privilege
  2. inform clients and the public about where they can seek help or advice regarding concerns they may have about their lawyer.

Strengthening the admission process

The legal profession regulatory framework ensures that each individual is assessed as a fit and proper person when they are admitted to the legal profession and as they continue to practise as a lawyer.

A pivotal part of this framework is the admission process governed by the VLAB, which, as noted earlier, has delegated its function to assess admission applications to the VLAC.

Under the supervision of the Supreme Court, the VLAB is the ‘gatekeeper’ to the legal profession, charged with making a proper assessment of applicants. The process of admissions depends on each applicant self-disclosing facts that are relevant to the consideration of whether they are a fit and proper person. This involves applicants disclosing relevant information to the VLAB.

The Commission heard that it may be beneficial to provide the VLAB with the power to request documentation from Victoria Police and other agencies, relevant to its assessment of whether an applicant is a fit and proper person. This would enable it to more rigorously and efficiently perform its function in the admission process. The VLAB told the Commission that the absence of such a power has sometimes resulted in delays in processing admission applications.

It is possible that, if the admitting authority had such powers in Ms Gobbo’s case, it may have obtained her accurate police record, determined she had supplied false information, and questioned whether she was a fit and proper person for admission as a lawyer. If ultimately admitted, she may have been more closely supervised and mentored. The unfortunate course of events leading to this inquiry may have been averted.

The Commission considers there may be merit in introducing such a power to improve the rigour of legal admission processes in Victoria. Before granting such a considerable power, however, further consultation and more detailed work is required to ascertain the extent of the problem, and to ensure that any additional powers are appropriately targeted and balanced against applicants’ privacy and other relevant Charter rights.

The VLAB advised the Commission that it was unaware of any authorities responsible for governing admissions processes in other jurisdictions in Australia holding such powers. Victoria’s participation in the Uniform Law and the desirability of harmonised admission rules and reciprocal admission across jurisdictions should be taken into account in considering whether to give the VLAB this power.

If such a power is introduced, the Commission considers that there would be value in the Council of Attorneys-General examining whether an equivalent power could be adopted in other Australian jurisdictions through a working group of officials.

RECOMMENDATION 77

That the Victorian Government, within six months, considers whether the Victorian Legal Admissions Board requires any additional powers to request and consider documentation from other agencies for the purpose of assessing applications for admission to the legal profession.

If such powers are conferred in Victoria, a Council of Attorneys-General working group should consider whether a harmonised approach could be adopted in all Australian jurisdictions.

Harmonising lawyers’ ethical duties and obligations

Exceptions to the duty of confidentiality

The Commission heard that it would be beneficial to clarify the exceptions to the duty of confidentiality that relate to disclosures for the purpose of preventing the commission of criminal offences, or preventing harm or injury being caused.

Given the importance of confidentiality to a client’s trust in their lawyer, the Commission considers that the exceptions should be clear and that a lawyer should be able to apply them in their work. The Commission considers that harmonising the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules in relation to the exceptions to the duty of confidentiality would strengthen the consistency of their interpretation by practitioners and the courts.

The Commission acknowledges that some stakeholders believe that the differences in expression between the conduct rules in this area do not have significant practical consequences. Nonetheless, the Commission is concerned that there are different perspectives about the scope of the exceptions, and further that the variations in the rules could be perceived as intentional—that is, it could be perceived that solicitors are subject to a higher threshold than barristers in relation to the circumstances that may warrant disclosure of confidential information.

It is often difficult for a lawyer to decide whether to disclose information that is the subject of the duty of confidentiality, and it is a significant decision to make. Disclosing such information may be urgent, and lawyers may need to decide whether to disclose in complex circumstances involving safety and security risks. Further, disclosure may require contact with law enforcement agencies.

The Commission considers that, given the significance of the duty of confidentiality, it is imperative that exceptions to this duty are clear and unambiguous. Accordingly, the Commission recommends harmonising the exceptions to the duty of confidentiality related to disclosures for the purpose of preventing the commission of criminal offences or preventing harm or injury.

The professional conduct rules should outline:

  • the circumstances that give rise to the exceptions
  • the type and degree of potential harm
  • the categories of offences that are intended to be captured by the exceptions.

The Commission recognises the need for flexibility within the professional conduct rules and encourages close consultation with professional bodies through the Law Council, to ensure that amendments to harmonise the rules are practical. The Commission notes that the Uniform Law provides for consultation processes where amendments are proposed to the professional conduct rules.261

Guidance for lawyers on the duty of confidentiality

Compared with certain other professional conduct rules, there is less guidance regarding exceptions to the duty of confidentiality within the legal profession.

As noted above, the Commission believes that harmonising and clarifying the exceptions to the duty of confidentiality in the professional conduct rules would improve their operation. The Commission also considers that there is a need for additional guidance to support lawyers who are considering whether they should disclose information in accordance with these exceptions.

The professional conduct rules are not designed to cater for every individual situation that may arise in practice. While it is impossible for the rules’ supporting commentary to specify every circumstance that may give rise to an exception, it can provide lawyers with advice and guidance about how to apply the principles expressed in the rules in a variety of situations.

The Commission acknowledges that the VLSB+C has recently released guidance to support lawyers regarding the provision of information to police.262 The Commission welcomes this guidance but considers that guidance in the commentary to the Solicitors’ Conduct Rules is also warranted. This would ensure that solicitors who consult their professional conduct rules as a primary source of authority about their obligations of confidentiality would receive appropriate assistance.

Similarly, additional guidance for barristers regarding the exceptions to the duty of confidentiality would be useful. As there is no commentary to the professional conduct rules for barristers, the Commission considers that guidance should be developed by the Victorian Bar.

In preparing such commentary, the Commission considers that Canada’s comprehensive approach provides a useful model for the scope of information that could be included. That is, it would be beneficial for an update to the commentary to include guidance about:

  • the factors to be considered when assessing whether a disclosure of confidential information is justified
  • where and how a lawyer can obtain advice on ethics when they are considering making a disclosure
  • steps to be taken to document the actions taken by the lawyer regarding the information received and disclosure made
  • any further actions the professional association considers would be appropriate where a lawyer is considering making, or has made, a disclosure.263

RECOMMENDATION 78

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, clarify and harmonise the duty of confidentiality and its exceptions, as contained in the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules.

RECOMMENDATION 79

That the Law Council of Australia, within 12 months, updates the commentary to the Solicitors’ Conduct Rules in relation to the duty of confidentiality and its exceptions, to include guidance on:

  1. the factors to be considered when assessing whether a disclosure of confidential information is justified
  2. where and how a solicitor can obtain advice on ethics when considering making a disclosure
  3. steps to be taken to document the actions taken by a solicitor regarding the information received and the disclosure made
  4. any further actions that a solicitor should take when considering making a disclosure.

RECOMMENDATION 80

That the Victorian Bar, within 12 months, prepares guidance in relation to the duty of confidentiality and its exceptions, including:

  1. the factors to be considered when assessing whether a disclosure of confidential information is justified
  2. where and how a barrister can obtain advice on ethics when considering making a disclosure
  3. steps to be taken to document the actions taken by a barrister regarding the information received and the disclosure made
  4. any further actions that a barrister should take when considering making a disclosure.
Managing conflicts of interest

The DPP proposed that the professional conduct rules be amended to clarify a range of matters, particularly to support the unique role of criminal defence lawyers, their fee arrangements and potential conflict of interest scenarios. After careful consideration, the Commission concludes that such specific amendments would be inconsistent with the professional conduct rules, which are intended to be broad and apply to lawyers generally.

Therefore, the Commission does not consider that there is sufficient evidence to warrant any changes to the professional conduct rules in respect of conflicts of interest at this time. It does consider, however, that there is scope for more tailored guidance for criminal defence lawyers, especially those early in their career, on the issues raised by the DPP.

RECOMMENDATION 81

That the Victorian Bar, within six months, develops ethics guidance on specific conflict of interest issues and scenarios that can arise for criminal defence barristers.

The Victorian Bar should prepare this guidance in consultation with the Criminal Bar Association, Victoria Legal Aid and other relevant stakeholders.

Maintaining appropriate professional boundaries

Professional boundaries are key to the effective administration of justice and the reputation of the legal profession. Lawyers must be, and must be seen to be, independent. A lawyer must maintain clear professional boundaries with clients, other lawyers and courts, tribunals or other decision makers, acting independently and in their client’s best interests at all times.

There are no specific professional conduct rules that define the appropriate parameters of a lawyer’s relationship with their clients, police officers or other associates with whom they may interact on a regular basis. There are, however, a range of rules that a lawyer would potentially be at risk of breaching if they formed an inappropriate relationship; including, for instance, in relation to conflicts of interest.

The Commission believes there is merit in providing clearer guidance about lawyers’ professional boundaries, especially regarding their relationships with clients, other lawyers and, in criminal cases, police officers involved in a case in which the lawyer is involved.

The Commission considers that such guidance would be particularly useful for new lawyers entering the legal profession. It would help lawyers identify situations that may involve a risk of engaging in inappropriate conduct and, ideally, inform them about where they can go to obtain advice and assistance. The Commission believes that this guidance would encourage ethical behaviour, better protect the public and promote community confidence in the legal profession.

The Commission notes that some steps have already been taken with respect to this issue, including a CPD seminar by the Victorian Bar and the guideline recently published by the VLSB+C. The Commission is of the view, however, that it is essential for guidance to be included within the commentary to the Solicitors’ Conduct Rules in relation to lawyers’ professional boundaries, and that the Victorian Bar should do likewise.

RECOMMENDATION 82

That the Law Council of Australia, within 12 months, includes specific guidance on maintaining appropriate professional boundaries in the commentary to the Solicitors’ Conduct Rules.

RECOMMENDATION 83

That the Victorian Bar, within 12 months, develops specific guidance for barristers on maintaining appropriate professional boundaries.

Improving ethics education and training for lawyers

Legal ethics education is integral to supporting lawyers’ understanding and application of their ethical duties and obligations in practice, as well as their ongoing professional development.

The Commission believes that CPD plays a vital role in reinforcing and supporting the ethical conduct of lawyers. It provides opportunities for lawyers to learn about the ethical problems that commonly arise in legal practice, discuss ethical education with peers, and develop the knowledge and tools necessary to manage ethical challenges that may arise in their own professional life.

Stakeholders consistently told the Commission that the current model of CPD may not be meeting its intended aims. In particular, some stakeholders told the Commission that the practical operation of the current system emphasises compliance with the process and requirements—that is, obtaining the necessary CPD units—rather than encouraging meaningful professional development and improved knowledge.

CPD should support lawyers to maintain and enhance their capacity to provide ethical legal services to their clients. Ethical conflicts arise in every area of legal practice, whether that be commercial law, personal injury, environmental or criminal law. Given the concerns raised by stakeholders during the inquiry and the themes emerging from the VLSB+C’s current review of CPD, it is clear that there is room for improvement to the current approach to CPD on legal ethics.

Some of the ethics education issues examined by the Commission are being considered in the VLSB+C’s CPD review, which was underway at the time of writing this final report. The Commission encourages the VLSB+C to implement reforms seeking to improve the quality of CPD on ethical issues for lawyers. The Commission considers that legal ethics education should be more routinely embedded into subject specific CPD activities, rather than continuing to be delivered in isolation.

To support the VLSB+C to drive these changes, the Commission recommends changes to the CPD rules, to align regulatory powers between barrister and solicitor CPD requirements. If agreement to these changes cannot be achieved at the national level through the Uniform Law framework, the Commission recommends that the Victorian Government progresses legislative change so that the VLSB+C has the power to regulate solicitors’ CPD in the same way that it can for barristers.

RECOMMENDATION 84

That the Victorian Legal Services Board and Commissioner, within six months, issues clear guidance about how legal ethics education should be embedded in the four compulsory fields of continuing professional development, including through the use of practical, scenario-based learning.

RECOMMENDATION 85

That the Legal Services Council, Law Council of Australia and Australian Bar Association work together to, within 12 months, harmonise the powers held by local regulatory authorities through the Solicitors’ Continuing Professional Development Rules, so that policies and requirements for continuing professional development can be made for solicitors as they can already for barristers.

If this change has not been made within 12 months, the Victorian Government should, within a further 12 months, provide the Victorian Legal Services Board and Commissioner with the power to regulate solicitors’ continuing professional development, as it is currently able to do in respect of barristers.

Reporting suspected misconduct

When lawyers engage in professional misconduct, clients and the broader community rightly expect that this will be promptly and appropriately managed by regulators. Therefore, a respected, functional system to deal with complaints about lawyers is essential to protect consumers of legal services and maintain public confidence in the legal profession.

Lawyers are often better placed than clients to recognise potential breaches of the professional conduct rules and ethical obligations, given their greater familiarity with them. The legal profession regulatory framework recognises this expertise through the existing mandatory requirement for a lawyer to report to a regulator if they believe ‘on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice’.264

Currently, a large proportion of disciplinary matters brought to the attention of regulators arise from complaints made by clients.

As noted earlier in this chapter, in Ms Gobbo’s case, a client, Mr Carl Williams, complained to regulators about her conduct, with good reason as it turned out. Some lawyers told the Commission that they had observed Ms Gobbo’s unethical behaviour but did not make formal complaints, instead informally raising these concerns with Ms Gobbo, or in some cases, not raising them at all. Had they too complained to regulators, a more thorough investigation may have been undertaken and the unethical conduct exposed much earlier.

If disciplinary and regulatory action had been taken earlier, Ms Gobbo could also have been removed from the Victorian Bar Roll. At the time of writing this final report, although Ms Gobbo had been struck off the Roll of Legal Practitioners by the Supreme Court, she remained on the Victorian Bar Roll’s list of retired counsel, due to the Victorian Bar Council’s inability to remove barristers from this list. In Chapter 7, the Commission recommends that this be addressed as a priority.

Whether there should be a mandatory requirement to report suspected misconduct within the legal profession has been the subject of significant debate in Australia and in other jurisdictions. In Australia, it has been suggested that the legal profession regulatory framework focuses too much on self-reporting. Indeed, the collegial culture of the legal profession may well have been a factor in the reluctance of Ms Gobbo’s peers to report their concerns to the regulator.

The Commission notes that other jurisdictions, such as the United States, the United Kingdom, New Zealand, Hong Kong and Canada, have taken steps to introduce mandatory reporting requirements.

After examining the approach to mandatory reporting requirements adopted in comparative legal systems and analysing the strengths and weaknesses of the current regulatory framework, the Commission concludes that lawyers have an important role to play in reporting suspected misconduct of their peers.

Some stakeholders raised concerns that the introduction of mandatory reporting was unnecessary, given that the legal profession and its regulators have a shared responsibility to uphold professional standards and the integrity of the legal profession. Stakeholders also suggested that mandatory reporting could:

  • lead to vexatious complaints
  • result in unintended consequences, such as negative repercussions or counter-complaints about the reporting lawyer
  • undermine the collegial nature of the legal profession.

The Commission notes that any vexatious complaints made would constitute unsatisfactory professional conduct or professional misconduct. Similarly, any unjustified countercomplaints made about the reporting lawyer would exacerbate the seriousness of the original offending conduct and ultimate penalty.

Members of other professions, such as medical practitioners, are required to report suspected misconduct by their peers. There are of course differences between these two professions. While lawyers are not generally dealing with imminent risks to a person’s health or physical wellbeing, their misconduct can still have dreadful consequences, including loss of liberty, financial loss, substantial miscarriages of justice, mental anguish for clients and diminished public confidence in the justice system. It seems incongruous that medical practitioners, police officers and others are required to report the misconduct of their peers, while lawyers are not.

The Commission notes that similar reporting requirements in the Australian health sector have not produced a large volume of vexatious complaints and as mentioned above, a 2017 University of Melbourne study found that less than 1 per cent of complaints were vexatious.265

Also, as noted earlier in this chapter, Victoria Police officers have, for many years, been subject to a mandatory reporting requirement. It is the Commission’s view that if a workforce such as law enforcement can operate effectively under mandatory reporting requirements, then members of the legal profession, who hold extremely high ethical responsibilities to their clients and the courts, should also have a positive obligation to report suspected misconduct.

The Commission believes that the existing ethical duties and obligations of lawyers operate as a safeguard against actions such as lodging a vexatious complaint. This is particularly so if a complaint leads to the abuse of a court’s process, as this would be a serious breach of a lawyer’s ethical duties.

The Commission appreciates stakeholders’ views that many details would need to be considered before introducing mandatory reporting. The Commission agrees that the threshold for mandatory reporting should be balanced appropriately—so that lawyers are required to report only significant suspected misconduct, not minor or trivial complaints.

The Commission heard concerns that, given the importance of reputation in the legal profession, there is the potential for repercussions or adverse consequences for lawyers making a report. Stakeholders noted that there could be a chilling effect in relation to reporting due to the fear of repercussions. The Commission notes that if a lawyer subjected another lawyer to detrimental treatment because the second lawyer had complied with their professional obligations by reporting suspected misconduct, this would itself be a breach of those obligations. It agrees that the possibility of such detrimental treatment needs to be considered and sensitively managed; however, the primary concern must be protecting clients and the public and developing a culture where help with ethical matters is sought early.

Introducing mandatory reporting may deter misconduct. It would certainly contribute to increasing and maintaining public confidence in the legal profession. The Commission believes that the trust placed in lawyers by their clients must be matched by lawyers’ accountability. The public should be able to expect that a lawyer who becomes aware of another lawyer’s misconduct will promptly report that behaviour to a regulator for consideration and action.

Mandatory reporting would contribute to increasing and maintaining high ethical standards within the legal profession. It would help protect the public and the administration of justice; strengthen public confidence in the legal profession; and:

  • reinforce the accountability of every lawyer to the administration of justice and the public
  • reinforce the accountability of the legal profession collectively to uphold professional standards
  • support greater public confidence in the legal profession
  • address a current gap in the regulatory framework.

Any mandatory reporting requirement would need to specify:

  • an appropriate reporting threshold
  • any necessary protections for those making the complaint
  • how legal professional privilege and the duty of confidentiality affect lawyers’ provision of information to the regulator
  • the consequences for non-compliance with mandatory reporting.

The VLSB+C, in its capacity as the main complaints-handling body in Victoria, is the appropriate body to hear complaints or reports of suspected misconduct.

In making this recommendation, the Commission has also taken into account Victoria’s participation in the Uniform Law framework. The Commission is aware that the objectives of the Uniform Law are to achieve consistency in the regulation of the legal profession. Accordingly, the Commission recommends that the Victorian Government should firstly pursue the introduction of a mandatory reporting requirement through the framework for amendments provided by the Uniform Law, in consultation with the other participating jurisdictions.

If such a requirement is not supported by the other jurisdictions participating in the Uniform Law, the Commission considers that the Victorian Government should implement a mandatory reporting requirement for lawyers in Victoria. To this end, the Commission notes that that the Uniform Law already contains matters specific to the operation of the law in Victoria.

While this recommendation could give rise to the potential for inconsistency in the legal profession regulatory framework, on balance the Commission considers that the value of a mandatory reporting requirement in supporting both the Victorian public’s trust and confidence in the legal profession, and the ability of regulators to respond effectively to suspected misconduct, would outweigh any possible divergence from the Uniform Law. It would also address the existing apparent inconsistency whereby a solicitor must have ‘reasonable grounds’ to report suspected misconduct of another lawyer and the allegation must be made in good faith, which is not mirrored in the Barristers’ Conduct Rules.266

To support the introduction of a mandatory reporting requirement, the Commission also considers that the VLSB+C, the professional associations and other relevant stakeholders should develop guidance and CPD activities on how it can be applied, in particular:

  • the elements of the mandatory reporting requirement
  • when lawyers are likely to need to report suspected misconduct
  • the consequences of not reporting suspected misconduct; making vexatious counter-complaints; or subjecting a lawyer who reports suspected misconduct to detrimental treatment
  • the role of the VLSB+C in receiving the reports.

RECOMMENDATION 86

That the Victorian Government, within 12 months, pursues through the Council of Attorneys-General and the Legal Services Council, an amendment to the Legal Profession Uniform Law introducing a mandatory requirement for lawyers to report the suspected misconduct of other lawyers. The Victorian Government should ensure the Victorian Legal Services Board and Commissioner is appropriately resourced to implement this recommendation.

If the amendment incorporating a mandatory reporting obligation has not been agreed within 12 months, the Victorian Government should, within a further 12 months, introduce a mandatory reporting requirement for Victorian lawyers to report the suspected misconduct of other lawyers.

RECOMMENDATION 87

That the Victorian Legal Services Board and Commissioner, the Victorian Bar and the Law Institute of Victoria, in consultation with other relevant stakeholders and prior to the commencement of the mandatory reporting obligation proposed in Recommendation 86, prepare harmonised guidance and continuing professional development activities for the legal profession to accompany and support the introduction of a mandatory reporting requirement.

Enhancing the independence of investigating complaints

The efficient and effective management of complaints against lawyers is vital for public confidence in the legal system and its effective operation.

There are different approaches to managing and handling complaints regarding lawyers in Victoria. Complaints regarding solicitors are handled exclusively by the VLSB+C, whereas complaints regarding barristers are generally delegated to the Victorian Bar for investigation.

The Commission was advised that the current co-regulatory approach recognises the specialist skills and experience necessary to consider complaints against barristers, and allows the practical expertise of barristers to be drawn on in considering complaints. As discussed above, the delegated function to the Victorian Bar to investigate complaints was recently reviewed, and several changes have been made to improve and strengthen the co-regulatory model, after some shortcomings were identified.267

The Commission believes that a key challenge with the current framework for investigating complaints about Victorian barristers is the perception of insufficient independence. This perceived absence of independence could lead to consumers lacking confidence in the complaints-management process generally, as well as the public believing that barristers operate with a lack of transparency and accountability.

The Commission was told that the risk of a perceived lack of independence is currently mitigated by the VLSB+C’s oversight of investigations into barristers and the fact that it makes the final decision about complaint outcomes.

The Commission acknowledges that this oversight provides a degree of public accountability and assurance, but considers that there is still a risk that the public would perceive that the Victorian Bar’s dual function of both investigating complaints and advocating on behalf of its members involves competing interests— one, the administration of justice and the public, and the other, its members.

The Commission notes the current legal profession regulatory framework already recognises the significance and importance of complaints regarding solicitors being independently investigated and considers that there should be a consistent approach to the management and investigation of complaints regarding lawyers in Victoria. While the Commission acknowledges the benefits of drawing upon the skills and expertise of barristers in resolving complaints, it believes that given the VLSB+C’s experience and capability in investigating complaints about solicitors, this experience can also be developed and maintained within the VLSB+C.

Further, there would be efficiencies in consolidating the investigation of complaints, given the VLSB+C’s established complaints processes and expertise. This would also reduce the potential for double handling, given that the VLSB+C must consider the recommendations made by the Victorian Bar regarding the outcome of a complaint under the current system.

The Commission is acutely conscious of the critical role of the independent legal profession, particularly advocates in the courts, in upholding the rule of law, in providing access to justice and in supporting the independence of the judicial arm of government. But the Commission is satisfied that this independence would not be compromised by the VLSB+C, specifically the Victorian Legal Services Commissioner, resuming the role of receiving and handling all complaints against barristers.

RECOMMENDATION 88

That the Victorian Legal Services Commissioner, within 12 months, revokes the Instrument of Delegation conferred on the Victorian Bar for receiving and handling complaints regarding barristers and resumes that function.

Improving awareness of supports for lawyers

Professional associations and the VLSB+C provide a range of important support services and resources to lawyers to assist them to understand their ethical duties and obligations. The Commission heard from stakeholders that such supports are important in helping to ensure that lawyers comprehend and follow the professional conduct rules. Broader services are also available to support lawyers’ personal wellbeing and their professional practice.

The Commission appreciates that the current range of support services and resources already cover a wide range of topics. It would be beneficial, however, for the professional associations to better understand the extent to which their members are aware of, use and find helpful the various services and resources. This would help ensure that the services currently offered can be more widely accessed, improved and refined and increase the likelihood that they would be used when needed. While the professional associations advised the Commission that there is data about how often their services are accessed, there was no data to quantify the level of awareness among members regarding the availability of such services, or their effectiveness.

The Commission understands that the Victorian Bar is currently reviewing the ethics support resources it makes available to barristers. The Commission considers this to be an appropriate opportunity to also review its members’ awareness, use and views of broader support services covering health and wellbeing.

The Commission also recommends that the Law Institute of Victoria conducts a similar review of its members’ awareness, use and views of its support services and resources for solicitors.

These reviews should be followed by any necessary targeted measures, such as an awareness campaign, or CPD units, should the level of awareness be found to be low. As part of continuous improvement, support services and resources should also be reviewed and modernised to ensure they continue to be of use to members.

RECOMMENDATION 89

That the Victorian Bar and the Law Institute of Victoria, within six months, assess the awareness level, use and views of the ethical, health and wellbeing support services and resources offered to their members. If the awareness levels and usage are found to be low, the Victorian Bar and the Law Institute of Victoria should review the quality of the services and resources and improve marketing and communications to ensure members are aware of the useful supports available.

The Victorian Bar and the Law Institute of Victoria should regularly review the effectiveness of these services and resources (at least every two years) and update them as required to meet the needs of members.

Supporting access to lawyers for people in police custody

People who have been taken into custody by police should be made aware of their right to communicate with a lawyer and obtain independent legal advice and representation. They should also be provided with reasonable facilities to do so. Given the events leading to this inquiry, it is important that Victoria Police never recommends a particular lawyer, in case it calls into doubt the lawyer’s independence.

Victoria Legal Aid told the Commission that a person’s right to seek legal advice before they are questioned in criminal proceedings is not adequately protected. It observed that people in custody often do not exercise their right to seek legal advice, sometimes because they have difficulty finding a lawyer through the methods offered by the police officer or because private space for a confidential discussion is not facilitated.268

The Commission reviewed Victoria Police policy and training materials and identified that they do not appear to set out all the rights and safeguards under section 464C of the Crimes Act for people taken into custody. Further, the materials do not refer to the relevant rights and safeguards under section 25 of the Charter, or the importance of a person having access to independent legal advice.

There do not appear to be any procedures specified in either the Victoria Police Manual or the training material about how to provide information to people in custody about accessing a lawyer. It is likely that this has led to the default practice that the Law Institute of Victoria and Victoria Legal Aid observed of police providing people with a telephone book.269

Without more specific procedural and policy guidance, there is a risk that police officers may take inconsistent approaches to the fundamental obligation of enabling a person in custody to communicate with a lawyer, including the importance of providing a private space for a confidential discussion. The development of policies and procedures would help to support adherence to these important criminal justice safeguards and more effectively connect people in custody with appropriate legal services.

Earlier in this report, the Commission recommended improved training and education for police about duties of confidentiality and privilege, including those held by lawyers. In addition, the Commission considers that Victoria Police should, in consultation with relevant stakeholders, amend the Victoria Police Manual and its training to incorporate advice about the rights of people in custody to speak with an independent lawyer; and Victoria Police’s responsibilities to support access to legal advice.

The Commission believes that these rights under the Crimes Act and the Charter would be better protected if accompanied by revised policies and procedures that help officers understand, in practical terms, how to support a person in custody to access legal advice. As submitted by stakeholders, the Commission considers that the revised procedures could require that Victoria Police provides people in custody with a list jointly issued by the Law Institute of Victoria and Victoria Legal Aid and updated annually, setting out:

  • contact details for lawyers working in the field of criminal law
  • any relevant specialist free services
  • any assistance required because of particular vulnerabilities; for example, illiteracy, English language difficulties, or mental or physical health issues.

The Commission notes that some stakeholders highlighted a broader need to consolidate and modernise the mechanisms by which people in custody are linked to legal services. Reforms to address this need would require time and resources to implement. The Commission suggests that the Victorian Government considers this issue further, in consultation with Victoria Police, Victoria Legal Aid, the Law Institute of Victoria and other relevant stakeholders.

RECOMMENDATION 90

That Victoria Police, within 12 months, amends the Victoria Police Manual and relevant training materials to comprehensively set out obligations under section 464C of the Crimes Act 1958 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) related to the right of a person in police custody to communicate with a lawyer.

Victoria Police should undertake this work in consultation with relevant stakeholders including Victoria Legal Aid, the Department of Justice and Community Safety, Law Institute of Victoria, Victorian Bar, Federation of Community Legal Centres and Victorian Aboriginal Legal Service.

Endnotes

1 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 3.

2 See generally Arie Freiberg, ‘Re-Stocking the Regulatory Toolkit’ (Conference Paper, Regulation in the Age of Crisis, 17 June 2010) 10.

3 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 43.

4 Victoria, Parliamentary Debates, Legislative Assembly, 12 December 2013, 4662 (Robert Clark, Attorney-General); Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 3.

5 Legal Profession Uniform Law Application Bill 2020 (WA).

6 See, eg, Civil Procedure Act 2010 (Vic); Supreme Court (General Civil Procedure) Rules 2015 (Vic).

7 The Uniform Law establishes the Legal Services Council and the Commissioner for Uniform Legal Services Regulation to oversee its operation, while state regulatory bodies are responsible for the day-to-day regulation of the legal profession, including admissions: see Legal Profession Uniform Law Application Act 2014 (Vic) s 10; sch 1 pts 8.2–8.5.

8 Based on the ‘Roles of Bodies under the Legal Profession Uniform Law’, Legal Services Council (Web Page) < www.legalservicescouncil.org.au/Pages/about-us/about-us.aspx&gt

9 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 6(1) (definition of ‘Standing Committee’), 391.

10 Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August 2013) 3.

11 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 427.

12 Róisín Annesley, Good Conduct Guide: Professional Standards for Australian Barristers (Federation Press, 2nd ed, 2019).

13 Consultation with Law Institute of Victoria, 4 June 2020.

14 Self-regulation means that legal professional associations—rather than independent bodies—play a direct role in regulating the legal profession.

15 Co-regulation means that legal professional associations and independent bodies work together to regulate the legal profession.

16 Submission 116 Victorian Legal Services Board and Commissioner, 5.

17 Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 3rd ed, 2007) 46. Increasing transparency and accountability was identified as an objective in introducing the Legal Practice Act 1996 (Vic): see Victoria, Parliamentary Debates, Legislative Assembly, 20 June 1996, 983–4 (Jan Wade, Attorney-General).

18 Legal Profession Uniform Law Application Act 2014 (Vic) s 10.

19 ‘About the Victorian Legal Admissions Board’, Victorian Legal Admissions Board (Web Page) < www.lawadmissions.vic.gov.au/about-the-victorian-legal-admissions-board….

20 Submission 116 Victorian Legal Services Board and Commissioner, 1.

21 Submission 116 Victorian Legal Services Board and Commissioner, 1. The Victorian Legal Services Board can suspend or cancel a lawyer’s practising certificate at any time if it reasonably believes that the lawyer is unable to fulfil the requirements of being a legal practitioner: Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 82.

22 Legal Profession Uniform Law Application Act 2014 (Vic) s 10; sch 1 ch 5.

23 Submission 116 Victorian Legal Services Board and Commissioner, 3.

24 Victorian Legal Services Commissioner, Instrument of Delegation (28 August 2015); Submission 116 Victorian Legal Services Board and Commissioner, 4.

25 Submission 116 Victorian Legal Services Board and Commissioner, 4, 7; Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

26 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 16, 23.

27 Legal Profession Uniform Admission Rules 2015 r 5, sch 1. This requirement is satisfied by, for example, obtaining a law degree at either undergraduate (Bachelor of Laws) or postgraduate (Juris Doctor) level.

28 Legal Profession Uniform Admission Rules 2015 r 6, sch 2.

29 Applicants must provide the Victorian Legal Admissions Board with an academic transcript from their university as evidence of their legal qualifications and a certificate of completion of a Practical Legal Training course: Legal Profession Uniform Admission Rules 2015 r 15.

30 Frugtniet v Board of Examiners [2002] VSC 140, [10].

31 Legal Profession Uniform Admission Rules 2015 rr 10, 16-20.

32 Legal Profession Uniform Admission Rules 2015 r 10.

33 Legal Profession Uniform Admission Rules 2015 rr 16, 22; ‘Appearing Before the Board’, Victorian Legal Services Board (Web Page) < www.lawadmissions.vic.gov.au/about-us/appearing-before-the-board&gt.

34 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 19.

35 Victorian Bar, Application and Reading Regulations (3 May 2018) reg 3(2).

36 Victorian Bar, Application and Reading Regulations (3 May 2018) regs 2(1) (definition of ‘required grade’), 6; Victorian Bar, Victorian Bar Entrance Examination General Information (22 August 2019) 1.

37 Victorian Bar, Application and Reading Regulations (2 May 2018) reg 4(1); ‘Bar Readers’ Course’, Victorian Bar (Web Page) < www.vicbar.com.au/public/about/becoming-barrister/bar-readers-course&gt.

38 Victorian Bar, Application and Reading Regulations (3 May 2018) regs 2(1) (definition of ‘reading period’), 7(1). The regulations require that the mentor has the needed seniority, be ‘in active practice’ and ‘likely to be substantially in attendance in chambers in Victoria during the whole of the Reading Period’.

39 There are some exceptions, including licensed conveyancers doing conveyancing work: Legal Profession Uniform General Rules 2015 r 10.

40 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 43-5.

41 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 45(2).

42 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 52; Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 6; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 8.

43 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 86, 90.

44 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 53; Legal Profession Uniform General Rules 2015 r 16.

45 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 4.1.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 4(d), 35.

46 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 114, 116; Evidence Act 2008 (Vic) ss 118, 119; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, 414–15 (Bowen CJ); Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 589 (Kirby J).

47 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 63.

48 Chief Justice Thomas Balthurst, ‘Duties to the Court, Duties of the Court’ (Speech, Law Society Planning Conference, Bowral, 14 November 2014).

49 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 52; Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 6; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 9.

50 Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 8; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 6A.

51 Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 r 14; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 r 15. Rule 7 of the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 requires the CPD activity to be of significant intellectual or practical content and deal primarily with matters related to the solicitor’s practice of law; conducted by qualified persons; and extend the solicitor’s knowledge or skills in areas related to their practice needs or professional development.

52 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9.

53 Actions that may be taken to address CPD non-compliance include: a notice requiring rectification; conditions imposed on the practising certificate; annual monitoring; individual verification audits; referral to the Legal Services Commissioner and ultimately failure to have a practising certificate reissued: ‘Continuing Professional Development Policy’, Victorian Legal Services Board and Commissioner (Web Page) < www.lsbc.vic.gov.au/resources/continuing-professional-development-polic…, 4–5.

54 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9.

55 Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 9, 43.

56 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cls 268-270. See also Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 790.

57 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 296.

58 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 297(1).

59 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 298.

60 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 782-3, 796.

61 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 266(2).

62 Based on Victorian Legal Services Board and Commissioner, Annual Report 2019 (Report, 2019) 51, 53.

63 Victorian Legal Services Board and Commissioner, Policy: Compliance and Enforcement (2017) 3–4.

64 Victorian Legal Services Board and Commissioner, Policy: Compliance and Enforcement (2017) 1, 3.

65 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 32.1.

66 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 154. Trust money is money held on behalf of a client by a law firm. This can include, for example, money that is held by a law firm for the purpose of paying stamp duty in connection with the purchase of a property. See ‘Trust and Controlled Money Accounts’, Law Society of New South Wales (Web Page) < www.lawsociety.com.au/for-the-public/going-court-and-working-with-lawye….

67 ‘Support Services and Resources’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Practice-Management/LIV-Support-Se….

68 ‘Ethics Committee’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/LIV-Ethics-Committee&gt;

69 ‘Ethics Guidelines’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/Ethics-Guidelines&gt.

70 ‘LIV Members’ Ethics Information Hub’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Ethics/Ethics-Resources-(2)&gt.

71 ‘LIVwell Program’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Supporting-You/Health-and-Wellbein…;.

72 ‘LIV Mentoring’, Law Institute of Victoria (Web Page) < www.liv.asn.au/Professional-Practice/Supporting-You/Information-on-Ment…;.

73 Consultation with Victorian Bar, 28 January 2020.

74 ‘Ethics Bulletins’, Victorian Bar (Web Page) < www.vicbar.com.au/members/victorian-bar/ethics-complaints/ethics-bullet…;.

75 Consultation with Victorian Bar, 28 January 2020.

76 Consultation with Victorian Bar, 28 January 2020.

77 Consultation with Victorian Bar, 2 October 2020.

78 Arthur Moses, ‘Opinion Piece: Breach of Duties from Lawyers X, Police an Attack on Democracy and Justice’, Law Council of Australia (Web Page, 22 February 2019) < www.lawcouncil.asn.au/media/news/opinion-piece-breach-of-duties-from-la….

79 Submission 91 Victorian Bar, 4 [15], citing Carter v Northmore Hale Devy & Leake (1995) 183 CLR 121, 127 (Brennan J).

80 Gino Dal Pont, Law of Confidentiality (LexisNexis Butterworths, 2015) [9.10].

81 Submission 112 Victoria Legal Aid, 2.

82 Consultation with Law Institute of Victoria, 4 June 2020.

83 See, eg, Patrick Durkin, ‘Revealed: Lawyer X is Gangland Barrister Nicola Gobbo’, Australian Financial Review (online, 1 March 2019) < www.afr.com/companies/professional-services/revealed-lawyer-x-is-gangla….

84 Stuart Webb, ‘Message from LIV President Stuart Webb: Integrity of the Profession’, Law Institute of Victoria (Web Page, 6 February 2019) < www.liv.asn.au/Staying-Informed/General-News/General-News/February-2019….

85 Arthur Moses, ‘Opinion Piece: Breach of Duties from Lawyer X, Police an Attack on Democracy and Justice’, The Law Council of Australia (Web Page, 22 February 2019) < www.lawcouncil.asn.au/media/news/opinion-piece-breach-of-duties-from-la….

86 Louis Schetzer and Judith Henderson, Access to Justice and Legal Needs. Stage 1: Public Consultations (Report, August 2003) xvii;Parliament of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law (Report, 20 September 2007) 168 [5.45]; Victorian Government, Access to Justice Review (Report, August 2016) vol 1, 121.

87 Ms Gobbo was admitted to the legal profession on 7 April 1997: Exhibit RC0019 Certificate of Admission, 7 April 1997.

88 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 17 (2)(b); Legal Profession Uniform Admission Rules 2015 rr 10, 12.

89 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 437.

90 Consultation with Victorian Legal Admissions Board, 12 February 2020.

91 Consultation with Victorian Legal Admissions Board, 12 February 2020.

92 Consultation with Victorian Legal Admissions Board, 12 February 2020.

93 Consultation with Victorian Legal Admissions Board, 12 February 2020.

94 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 114.

95 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 344.

96 See Christine Parker, Suzanne Le Mire and Anita Mackay, ‘Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation’ (2017) 40(3) Melbourne University Law Review 999, 1012.

97 The duty of confidentiality arises in contract law and equity and is replicated in the professional conduct rules: see generally Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 344.

98 Based on Legal Profession Uniform Law Australian Conduct Solicitors’ Rules 2015 rr 9.2.4, 9.2.5; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 81, 82.

99 Submission 116 Victorian Legal Services Board and Commissioner, 10.

100 Submission 116 Victorian Legal Services Board and Commissioner, 10.

101 Consultation with Law Institute of Victoria, 15 January 2020.

102 Consultation with Law Institute of Victoria, 4 June 2020.

103 Consultation with Law Institute of Victoria, 4 June 2020.

104 Consultation with Legal Services Council, 1 June 2020.

105 Consultation with Law Council of Australia, 17 June 2020.

106 Law Council of Australia, Australian Solicitors’ Conduct Rules and Commentary (August 2013) 3.

107 Law Council of Australia, ‘Review of the Solicitors’ Conduct Rules’ (Discussion Paper, February 2018) 43, 44, 49.

108 Consultation with Law Council of Australia, 4 October 2019.

109 Consultation with Law Council of Australia, 17 June 2020.

110 Law Council of Australia, Australian Solicitors’ Conduct Rules 2011 and Commentary (August 2013) 41. The commentary defines ‘serious criminal offence’ as an indictable offence against a law of the Commonwealth or any jurisdiction; an offence against the law of another jurisdiction that would be an indictable offence against a law of this jurisdiction; or an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence can be dealt with summarily in all cases). Indictable offences are often heard in higher courts with more severe penalties while summary offences are less serious and heard in Magistrates’ Court.

111 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 4.

112 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 4.

113 Consultation with Victorian Bar, 28 January 2020.

114 Consultation with Victorian Bar, 11 June 2020.

115 Submission 116 Victorian Legal Services Board and Commissioner, 10.

116 Consultation with Criminal Bar Association, 30 January 2020.

117 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 26 [83].

118 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [85].

119 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [85].

120 New South Wales Bar Association, Guidance for NSW Barristers in the Wake of the Matter of Lawyer X (2019) 32 [86].

121 At the date of writing, the Model Code of Professional Conduct had been implemented in whole or in part in most law societies in Canada. The Canadian Bar Association had also approved a resolution to discontinue its Code of Professional Conduct once no Canadian law society uses it or incorporates it. See ‘Implementation of the Model Code’, Federation of Law Societies of Canada (Web Page) < https://flsc.ca/resources/implementation-of-the-model-code&gt; ‘Codes of Professional Conduct’, Canadian Bar Association (Web Page) < www.cba.org/Publications-Resources/Practice-Tools/Ethics-and-Profession….

122 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 3.3–3.

123 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 3.3–3 [1]-[5].

124 Elyse Methven, ‘The Controversial Case of Lawyer X: Should Lawyers Be Prevented from Acting as Human Sources?’ (2019) 44(2) Alternative Law Journal 93, 98.

125 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Australian Bar Association, 9 March 2020; Consultation with Law Council of Australia, 4 October 2019.

126 Consultation with Victorian Bar, 28 January 2020.

127 Submission 116 Victorian Legal Services Board and Commissioner, 10.

128 Submission 116 Victorian Legal Services Board and Commissioner, 11.

129 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

130 Consultation with Law Institute of Victoria, 15 January 2020.

131 Consultation with Victorian Bar, 28 January 2020.

132 Consultation with Criminal Bar Association, 10 February 2020.

133 Consultation with Victorian Bar, 28 January 2020; Consultation with Criminal Bar Association, 30 January 2020.

134 Consultation with Australian Bar Association, 9 March 2020.

135 Consultation with Legal Services Council, 1 June 2020.

136 See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 rr 10-12; Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 35, 101, 119.

137 Submission 142 Director of Public Prosecutions (Victoria), 86-7.

138 Submission 142 Director of Public Prosecutions (Victoria), 87.

139 Submission 142 Director of Public Prosecutions (Victoria), 87.

140 Consultation with Law Institute of Victoria, 4 June 2020.

141 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

142 Law Council of Australia, ‘Review of the Solicitors’ Conduct Rules’ (Discussion Paper, February 2018) 67–8.

143 Law Council of Australia, Australian Solicitors’ Conduct Rules and commentary (August 2013) 8-22; Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020); Law Institute of Victoria, Guidelines for the Representation of Co-Defendants in Criminal Proceedings (27 October 2017); Róisín Annesley, Good Conduct Guide: Professional Standards for Australian Barristers (Federation Press, 2nd ed, 2019) 60-73.

144 Submission 116 Victorian Legal Services Board and Commissioner, 9.

145 Consultation with Victorian Bar, 28 January 2020.

146 Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3]; Exhibit RC0974 Statement of Mr Colin Lovitt, 14 November 2019, 1; Exhibit RC0968b Statement of Mr Alistair Grigor, 9 May 2019, 1; Exhibit RC0980b Statement of Mr Warren Peacock, 2 October 2019, 2 [12]; Exhibit RC0972b Statement of Mr Alex Lewenberg, 20 May 2019, 3 [11].

147 Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3].

148 Consultation with Criminal Bar Association, 30 January 2020; Consultation with Australian Bar Association, 9 March 2020.

149 Consultation with Criminal Bar Association, 30 January 2020.

150 Consultation with Victorian Bar, 28 January 2020.

151 Consultation with Law Institute of Victoria, 15 January 2020.

152 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020).

153 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to police (9 June 2020) 3.

154 Australian Law Reform Commission, Discovery in Federal Courts (Consultation Paper No 2, November 2010) 152 [4.214].

155 Submission 023 Emeritus Professor Adrian Evans et al, 5.

156 Continuing Professional Development (CPD) Scheme Rules 2004; ‘LIV Demands CPD, or Else’, Lawyers Weekly (online, 3 March 2012) < www.lawyersweekly.com.au/news/8142-liv-demands-cpd-or-else&gt.

157 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 117.

158 Consultation with Victorian Bar, 28 January 2020.

159 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

160 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020; Consultation with Law Institute of Victoria, 15 January 2020.

161 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

162 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020.

163 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020.

164 Consultation with Victorian Legal Services Board and Commissioner, 28 September 2020; Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 rr 6, 6A, 9, 11.

165 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

166 Consultation with Law Institute of Victoria, 15 January 2020.

167 Transcript of Ms Nicola Gobbo, 6 February 2020, 13305–6.

168 Consultation with Victorian Bar, 28 January 2020.

169 Consultation with Victorian Bar, 28 January 2020.

170 Consultation with Victorian Bar, 28 January 2020; Victorian Bar, The Victorian Bar: Quality of Working Life Survey (Report, October 2018).

171 Consultation with Criminal Bar Association, 30 January 2020.

172 Consultation with Law Institute of Victoria, 15 January 2020.

173 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 12, 14–15.

174 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 14.

175 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 14.

176 Consultation with Law Council of Australia, 4 October 2019.

177 Consultation with Law Institute of Victoria, 15 January 2020.

178 Law Institute of Victoria, Annual Report 2020 (Report, 2020) 38.

179 Consultation with Australian Bar Association, 9 March 2020.

180 Consultation with Victorian Bar, 28 January 2020.

181 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

182 See Exhibit RC0187 Letter from Carl Williams to the Legal Services Commissioner, 4 September 2006; Exhibit RC0188 Letter from Carl Williams to the Victorian Bar Ethics Committee, 5 September 2006. Mr Williams’ complaint to the Legal Services Commissioner was referred to the Victorian Bar Ethics Committee to investigate.

183 See, eg, Exhibit RC0209 Letter from Legal Services Commissioner to Roberta Williams, 14 March 2008; Exhibit RC0210 Letter from Legal Services Commissioner to Roberta Williams, 6 May 2008.

184 See, eg, Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, [3]; Exhibit RC0974b Statement of Mr Colin Lovitt, 14 November 2019, 5.

185 The Victorian Bar Ethics Committee considered the complaint and reported back to the Legal Services Commissioner: Exhibit RC0203 Letter from the Victorian Bar Ethics Committee to the Legal Services Commissioner, 4 October 2006, 1–2.

186 Exhibit RC0212 Letter from the Legal Services Commissioner to Nicola Gobbo, 30 May 2008.

187 See Exhibit RC0977b Statement of Mr Robert Richter, 25 November 2019, 1 [3]; Exhibit RC0974 Statement of Mr Colin Lovitt, 14 November 2019, 1; Exhibit RC0968b Statement of Mr Alistair Grigor, 9 May 2019, 1; Exhibit RC0972b Statement of Mr Alex Lewenberg, 20 May 2019, 3 [11]; Exhibit RC0980b Statement of Mr Warren Peacock, 2 October 2019, 2 [12].

188 On 8 March 2019, the Commission issued a notice to produce to the VLSB+C to produce all documents between 1 January 1995 and 31 December 2013 relating to Ms Gobbo. No information was produced to the Commission to indicate that Ms Gobbo’s fellow lawyers or colleagues made a formal complaint about her.

189 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 4; see also Eric H Steele and Raymond T Nimmer, ‘Lawyers, Clients, and Professional Regulation’ (1976) 1(3) American Bar Foundation Research Journal 917, 999.

190 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 4.

191 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 1, 4 citing Douglas Richmond, ‘The Duty to Report Professional Misconduct: A Practical Analysis of Lawyer Self-Regulation’ (1999) 12 Georgetown Journal of Legal Ethics 175, 175.

192 Tara Sklar et al, ‘Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings’ (2019) 16(2) Journal of Empirical Legal Studies 318, 328, 330. The study examined complaints made against 4,180 lawyers (out of an analytical sample of just over 20,000 lawyers) made over a 10-year period, between July 2005 and June 2015.

193 Tara Sklar et al, ‘Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings’ (2019) 16(2) Journal of Empirical Legal Studies 318, 333.

194 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 6th ed, 2017) 786.

195 Sophie McNamara, ‘Mandatory Reporting “Misused”’, MJA Insight (Web Page, 31 October 2011) < www.mja.com.au/insight/2011/41/mandatory-reporting-misused&gt.

196 Jennifer Morris, Rachel Canaway and Marie Bismark, ‘Reducing, Identifying and Managing Vexatious Complaints’, Melbourne School of Population and Global Health Centre for Health Policy, University of Melbourne, (November 2017), 4–5.

197 Consultation with Bar Association of Queensland, 2 September 2019.

198 Consultation with Bar Association of Queensland, 2 September 2019.

199 Consultation with New South Wales Office of the Legal Services Commissioner, 26 August 2019; Consultation with Bar Association of Queensland, 2 September 2019.

200 Consultation with Law Council of Australia, 4 October 2019.

201 Consultation with Legal Services Council, 1 June 2020.

202 Consultation with Law Institute of Victoria, 4 June 2020.

203 Consultation with Victorian Bar, 11 June 2020.

204 Consultation with Victorian Bar, 11 June 2020.

205 Consultation with Victorian Bar, 11 June 2020. Complaints under the Victorian Bar’s conduct policies cover matters such as bullying, discrimination, sexual harassment and other inappropriate conduct.

206 Consultation with Victorian Bar, 11 June 2020.

207 Consultation with Australian Bar Association, 9 March 2020.

208 Consultation with Australian Bar Association, 9 March 2020.

209 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

210 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

211 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

212 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

213 See Solicitors Regulation Authority (UK), Code of Conduct (30 May 2018) 7.7; Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (NZ) rr 2.8, 2.9, 8.2; Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 7.13; The Law Society of Hong Kong, Hong Kong Solicitors’ Guide to Professional Conduct (1995) r 11.03.

214 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 4 [11].

215 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 3 [4].

216 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 8.

217 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 9 [31].

218 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 9 [31].

219 Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 3.

220 Solicitors Regulation Authority (UK), Code of Conduct (30 May 2018) 7.9.

221 Solicitors Regulation Authority (UK), Enforcement Strategy (25 November 2019) 1.2; Solicitors Regulation Authority (UK), Reporting Concerns: Our Post-Consultation Position (Report, January 2019) 6.

222 American Bar Association, Model Rules of Professional Conduct, r 8.3. Rule 8.3 provides that ‘a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority’.

223 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 3.

224 Arthur Greenbaum, ‘The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform’ (2003) 16(2) Georgetown Journal of Legal Ethics 2, 6 citing American Bar Association Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1279 (1973).

225 ‘Reporting Unacceptable Conduct’, New Zealand Law Society (Web Page) < www.lawsociety.org.nz/for-lawyers/confidential-report&gt.

226 Medical Practice Act 1992 (NSW) s 71A(1); Medical Practitioners Registration Act 2001 (Qld) s 166.

227 Queensland Minister for Health, ‘Health Minister Releases HQCC Report into Mackay Hospital’ (Media Statement, 4 August 2008), 1.

228 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), which applies, by reference, the Health Practitioner Regulation National Law Act 2009 (Qld) ss 5, 141 as the law in Victoria.

229 Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), which applies, by reference, the Health Practitioner Regulation National Law Act 2009 (Qld)s 140 as the law in Victoria.

230 Australian Health Practitioner Regulation Agency, Guidelines: Mandatory Notifications about Registered Health Practitioners (March 2020).

231 Victoria Police Act 2013 (Vic) s 167(3).

232 Victoria Police Act 2013 (Vic) s 166.

233 Victorian Legal Services Commissioner, Instrument of Delegation (28 August 2015).

234 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

235 Submission 116 Victorian Legal Services Board and Commissioner, 4.

236 Victorian Bar, Summary of Review of Delegated Functions (2019) 1-2.

237 Consultation with Victorian Legal Services Board and Commissioner, 8 January 2020.

238 Consultation with Victorian Bar, 11 June 2020.

239 Consultation with Victorian Bar, 11 June 2020.

240 Consultation with Victorian Bar, 28 January 2020.

241 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

242 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

243 Consultation with Victorian Legal Services Board and Commissioner, 11 March 2020.

244 Solicitors Regulation Authority, Headline Findings: Solicitors Regulation Authority (18 January 2016) 3.

245 See Exhibit RC0788b Transcript of conversation between Ms Nicola Gobbo and the Commission, 11 April 2019, 935–6.

246 Crimes Act 1958 (Vic) ss 464C(1)–(2).

247 Crimes Act 1958 (Vic) ss 464C(1)(c)–(d).

248 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(b).

249 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 11 June 2020.

250 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 11 June 2020.

251 Victoria Police, ‘Foundational Training Division Centre for Law and Operational Development: Caution and Rights’ 11, 1 October 2019, produced by Victoria Police in response to a Commission Notice to Produce.

252 Email from solicitors for Victoria Police to Solicitors Assisting the Commission, 12 June 2020.

253 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Victoria Legal Aid, 17 June 2020.

254 Consultation with Victoria Legal Aid, 17 June 2020.

255 Consultation with Victoria Legal Aid, 17 June 2020.

256 Consultation with Victoria Legal Aid, 17 June 2020.

257 Consultation with Victoria Legal Aid, 17 June 2020.

258 Consultation with Law Institute of Victoria, 4 June 2020.

259 David Ipp, ‘Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, 63, 65.

260 See, eg, Victorian Bar, ‘Statement by the Victorian Bar regarding Lawyer X’ (Media Release, 1 March 2019) < www.vicbar.com.au/news-events/media-release-%E2%80%93-statement-victori….

261 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 427(5).

262 Victorian Legal Services Board and Commissioner, Regulatory Guideline: Lawyer conduct in providing information to Police (9 June 2020).

263 Federation of Law Societies of Canada, Model Code of Professional Conduct (19 October 2019) r 33 [1][5].

264 Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 cl 154(2).

265 Jennifer Morris, Rachel Canaway and Marie Bismark, ‘Reducing, Identifying and Managing Vexatious Complaints’, Melbourne School of Population and Global Health Centre for Health Policy, University of Melbourne, (November 2017), 4–5.

266 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 32.1.

267 Victorian Bar, Summary of Review of Delegated Functions (2019) 1–2.

268 Consultation with Victoria Legal Aid, 17 June 2020.

269 Consultation with Law Institute of Victoria, 15 January 2020; Consultation with Victoria Legal Aid, 17 June 2020.

Reviewed 07 December 2020

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