Legal ethics and professional responsibility are at the heart of legal practice. They are fundamental to an understanding of Law as a profession. This is one among many memorable insights you will gain from The Ethical Lawyer, the extensive guide to ethical conduct and client care by Richard Scragg.
Throughout the Author’s career, Richard has maintained a thorough interest in ethics, from being a law practitioner, instructor in practical legal training to university lecturer. Taking this even further, Richard’s passion for the ethics of law and experiences in the profession prompted him to pen his practical book, published by Thomson Reuters.
The ethical guidelines for lawyers to abide by
Legal Insight sat down with Richard to gather some pointers on legal ethics for law graduates, recently admitted barristers and solicitors and early career in-house counsel. It’s a fair question to ask – what ethical responsibilities do practitioners in these roles need to be mindful of?
“The starting point is to conceptualise your function as a lawyer. A lawyer is an adviser, and, as such, stands at one step removed from the client,” said Richard.
Television dramas (think the USA Network Original Series, Suits) tend to offer an impression that the lawyer is indistinguishable from the client and simply carries out the client’s bidding. But the real world of ethics and the law, Richard argues, is far different. For instance, the lawyer’s function is to give advice to the client within what the law allows.
“If the client proposes a course of action that is unlawful, it is for the lawyer to advise the client of that and try to find a way to achieve what the client wants that is lawful. If this is not possible, and the client insists on proceeding, then the lawyer must decline to act”
– Richard Scragg, Author of The Ethical Lawyer
In case you are wondering whether the same applies to in-house counsel, the answer is yes. General Counsel and corporate lawyers can refer to the In-house Lawyers Association of New Zealand’s (ILANZ) set of guidelines, that are a model for all lawyers, not just in-house counsel, as detailed in The Ethical Lawyer.
“It is this detachment from the client that is at the heart of professional life and distinguishes a profession from a business,” added Richard.
In 2018 the New Zealand Law Society (NZLS) appointed a Working Group, chaired by Dame Sylvia Cartwright, a former High Court Judge and then Governor-General, to “inquire into and report on the current regulatory framework [governing law practitioners] in order to enable better reporting, prevention, detection, and support in respect of sexual violence, sexual harassment, bullying, discrimination and other inappropriate workplace behaviour within the legal profession”. The Working Group released a report on their findings later that year.
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We asked Richard what the NZLS’s response to the Working Group’s report had been. He said that in December 2019 LawTalk – the news magazine of the NZLS – reported that the President of the NZLS, in response to the report, had announced that the NZLS was going to commission an independent review of its structure and function. This decision reflected “the constraints the current Lawyers and Conveyancers Act 2006 placed on the Law Society’s ability to be transparent about its complaints process, and to deal with a broad range of unacceptable behaviour, including complaints of sexual harassment and bullying within the profession”.
Current challenges and future directions
According to The Ethical Lawyer, there are some specific matters that need to be addressed in the fields of legal ethics and professional responsibility. Read on for Richard’s view on the areas that New Zealand laws can fine tune…
Duty to cooperate vs right to silence
Section 262 of the Lawyers and Conveyancers Act 2006 imposes a duty on law practitioners not to obstruct investigations by standards committees and Legal Complaints Review Officers into practitioner conduct. The NZLS has come to regard this as a duty to co-operate. It is a fundamental principle of our legal system that the party who alleges an act or omission must prove it: the plaintiff in a civil action and the prosecution in a criminal matter. If the duty not to obstruct is interpreted as a duty to co-operate, then, in practical terms, this can have the effect of shifting the burden of proof from the NZLS to the practitioner who is under investigation. A duty to co-operate, in consequence, also has an impact on the practitioner in terms of his or her right to silence. This is a delicate matter and there needs to be clarification of what the duty under s 262 is.
Status of speech as misconduct
There is also a need for clarification of the status of speech as misconduct. This stems from the decision of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606. In this case Orlov was struck off by the Lawyers and Conveyancers Disciplinary Tribunal. He was found guilty of misconduct on five charges, all related to statements made by him about a High Court Judge. The appeal against conviction was dismissed by a Full Court, so, clearly, Orlov was guilty of misconduct. The appeal against penalty was, however, allowed and the order for striking off quashed. The High Court decided that, as Orlov had been struck off for some time pending the appeal, there was no need for an alternative penalty. In quashing the order for striking off their Honours stated:
“We place weight on the fact that the practitioner’s offending conduct consists only of speech, and is directed against a member of the judiciary. It does not involve mistreatment of clients or their money”.
The first sentence is astonishing. “Speech” appears to be a lesser matter than an act – for example, theft of client money held in the trust account – and it suggests that rudeness to judges in court is not reprehensible. Clearly from this judgment, speech alone can amount to misconduct – the appeal against conviction was dismissed – but, if it does amount to misconduct, what is the appropriate penalty? The judgment does not afford any guidance on this important matter.
Given the importance of speech in the profession of law – particularly for litigation practitioners – this matter requires further and deeper consideration by the courts. Offensive speech to a judge in court is, arguably, at the high end of offending in terms of the rules in chapter 13 of the Rules of Conduct and Client Care for Lawyers, not a trivial matter requiring a mild – or no – penalty.
Expanding the scope of unsatisfactory conduct
Another matter that needs to be addressed is whether or not unsatisfactory conduct, in terms of s 12 of the Lawyers and Conveyancers Act 2006, applies to a lawyer’s conduct when the lawyer is not delivering regulated services. Currently the position is not clear. There is a decision by the Legal Complaints Review Officer (LCRO) in which the LCRO expresses the view that unsatisfactory conduct can, in certain circumstances, apply to conduct which is not in the course of the delivery of regulated services (EA v ABO (Ms VY) LCRO 237/2010, 29 September 2011). This finding was not necessary to the decision and if it had been in a judgment of the courts, would have been an obiter dictum. The question of whether unsatisfactory conduct extends to conduct when a lawyer is not delivering regulated services is an important one and is discussed in the NZLS’s Working Group’s report. It is a matter that requires clarification by way of statutory amendment.
Misconduct and the performance of regulated services
Section 7 of the Lawyers and Conveyancers Act 2006 is concerned with misconduct. Section 7(1)(a) is concerned with misconduct during the performance of regulated services. Section 7(1)(b) is concerned with misconduct which is “unconnected with the provision of regulated services”. The Orlov case indicates how difficult it can be to classify a lawyer’s conduct as occurring during, or outside, the provision of regulated services. In that case a Full Bench of the High Court decided that the test of whether the conduct occurred during the provision of regulated services was whether the lawyer’s conduct could be connected to the provision of legal services. This test was followed by the High Court in subsequent cases but was criticized by the NZLS Working Group in its report on the grounds that connected to created uncertainty as to the conduct it might cover. In Deliu v National Standards Committee [2017] NZHC 2318 Hinton J tentatively proposed an alternative interpretation of s 7(1)(a).
Applying in part the reasoning of the Full Court in the Orlov case, Hinton J concluded that the test was whether the conduct in issue was in fact performed “at a time of provision of legal services”. She noted that “legal services” are defined in the Act as “services a person carries out by carrying out legal work for any other person” and that “legal work” is defined to include “reserved areas of work and any work that is incidental to any of that work”. Her Honour found that the phrase “for any other person” included legal work for clients generally. Her Honour was very cautious in proposing this alternative interpretation and stated: “If I am wrong in my view, then I would adopt the interpretation of s 7 reached by the Full Court in Orlov…”.
Subsequent to the publication of The Ethical Lawyer, Whata J, in Young v National Standards Committee [2019] NZHC 2268, followed the alternative interpretation proposed by Hinton J in the Deliu case. The situation is now problematic. There are two different interpretations of s 7(1)(a) at High Court level. This is difficult for judges in subsequent cases coming before the High Court and difficult for practitioners advising lawyer clients who are facing charges of misconduct. There needs to be a definitive interpretation of ss 7(1)(a) and 7(1)(b) and their relationship clarified. It may be that only statutory amendment will satisfy this need. If that is the case, the nature of language will pose considerable challenges to those charged with drafting the new provisions.
Clearly there are many issues to be resolved in the field of legal ethics and professional responsibility. We began our interview by asking Richard about the advice that he would give to a new law graduate or recently admitted law practitioner concerning their ethical responsibilities. Legal Insight concluded by asking him if there was anything that he would like to add to his earlier comment. To this, he advised legal professionals to put legal ethics and professional responsibility at the heart of their work. We couldn’t agree more!
If you liked this, try reading: How Lawyers Can Benefit From Emotional Intelligence.
