The Law Society of New South Wales recently published the second
edition of "A Guide to Ethical Issues for Government
Lawyers." The document provides an important and useful guide
to lawyers working within government, as well as private
practitioners who are retained by government agency. The guidelines
were first published in 2003, and after a review of the guide in
2010, the Government Solicitor's Committee has helped to
provide this important and useful updated version. The guide is
designed to provide assistance on ethical issues that face any
government lawyer or private practitioner who acts for government,
and also provides some case studies and answers to assist
practitioners in understanding how the principles will be applied.
The new guidelines are intended to be read in conjunction with the
relevant practice rules and statement of ethics, and will continue
to be updated as required.
While the guidelines are not binding on legal officers, they do
provide important information on the ethical and professional
responsibilities of lawyers working with government agency. Some
important insights and information from the new guidelines include
It is unethical for a legal officer to accept a retainer if the
legal officer's workload is too great to allow them to serve
the client competently and diligently.
Legal officers themselves must act as "model
litigants" in all their dealings with the courts (indicating
that legal officers must go further than merely ensuring that
client agencies conduct themselves as "model
There is a distinction drawn between policy and legal advice,
and it is acknowledged that policy issues are often woven into
requests for legal advice. It is not unusual for legal officers to
advise on matters that are concerned solely with policy or
Significant sections include:
Good, Independent Advice
Legal officers are to accept instructions to advise or
represent honestly, competently and diligently.
Legal officers should provide professional legal services,
whether or not their advice is welcome.
A legal officer is not entitled to public oppose government
policy concerning any matter in which they are or have been
Information given in confidence should be kept confidential,
during and after employment, unless the agency authorises
disclosure, there is an overriding legal duty to disclose, or a
legal immunity for doing so.
It is not unethical to make a protected disclosure.
It is not unethical to pass on legal advice to another agency
in accordance with law or government policy.
Legal officers should advise client agencies to conduct
themselves as model litigants. They should act in accordance with
model litigant rules and assist agencies to do so.
Conflict of Interest
Legal officers must deal fairly with their clients, free of the
influence of any interest that may conflict with their
Public sector law also prohibits conflicts of interest on the
part of public sector employees.
Legal officers should not act for more than one agency, for an
individual and an agency, in the same matter if they have
conflicting interests. This is so, even where the conflict was not
apparent at the beginning but becomes evident later.
Giving Policy Advice
A legal officer who is instructed to help the agency to carry
out a transaction, does not have to offer unsought advice on the
wisdom of the transaction. It is, however, appropriate to point out
the legal effect of such provisions being drafted to carry out the
Advice may be sought from legal officers about a matter of
policy or management discretion. It is not unethical to providesuch
advice, but it is desirable, to prevent misunderstanding, to
separate clearly the legal advice from the policy or management
The legal officer should consider whether this type of mixed
advice may later raise questions about whether, for the purposes of
legal professional privilege, the dominant purpose of the advice
was legal or something else.
External Legal Service Providers
If an agency is bound to refer particular types of matter to
the Government legal agency, the legal officer should ensure that
it does so.
A legal officer must act diligently in every case: to brief and
assist external legal service providers and raise any problems with
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