"Upholding the principles and values of a government lawyer in a time of crisis requires courage and conviction." – The Hon Justice Stephen Gageler AC.
"The first, and perhaps the most important thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the lawyer knows he or she should do: ethics are what the lawyer does. They are not so much learnt as lived." – The Hon Sir Gerard Brennan AC KBE.
The ethical responsibilities applicable to public and private sector lawyers are fundamentally the same. However, government lawyers face particular challenges arising from the requirement to perform their role in the public interest, the conflict which can occur between law and policy, and the likelihood of public scrutiny and accountability.
Ethical issues facing government lawyers may include:
- providing independent advice
- maintaining legal professional privilege, acting as a model litigant
- separating legal advice from policy and management advice.
The importance of independence
"One of the fundamental ethical duties owed by a lawyer is the avoidance of any compromise to their integrity and professional independence. A lawyer must not act as the mere mouthpiece of the client.The actions of government lawyers take on extra significance because the government is a client which has powers and obligations that far exceed those of the normal citizen" – Report of the Royal Commission into the Robodebt Scheme, chapter 19, July 2023.
The Royal Commission into the Robodebt Scheme examined the role and activities of the large in-house legal teams within the Commonwealth Department of Human Services and the Commonwealth Department of Social Services. The Commission heard evidence about the structure and culture of those legal teams and concluded: "It is apparent that the professional independence of both agencies in-house lawyers was comprised in relation to the Scheme".
The following lessons about the professional independence of in-house government lawyers can be learned from the Robodebt Royal Commission:
- lawyers must remain frank and fearless in giving legal advice
- legal advice must not remain in draft form without being finalised
- the job of the lawyer is not necessarily to require their client to accept their advice, but the lawyer must ensure that the client understands the advice
- lawyers must not change their advice without having a genuine legal basis for doing so
- if a lawyer finds themselves in a position where they are being pressured by their client about the advice they have given, they should seek legal and/or ethical advice from an appropriate third party.
Maintaining legal professional privilege
Maintaining the client's legal professional privilege is an important obligation of in-house lawyers.
The privilege protects the confidentiality of communications which have been produced for the dominant purpose of litigation or the provision of legal advice. The privilege also extends to peripheral non-legal advice provided while giving formal legal advice, but does not apply where the lawyer is retained to provide non-legal services such as policy or administrative advice. 'Purpose' is assessed at the time the communication is made or created.
It is important that legal advice given by in-house lawyers is clearly separated from non-legal advice and is marked with words such as 'privileged and confidential'.
Model litigant rules
The model litigant rules applicable to the NSW Government are set out in the Model Litigant Policy for Civil Litigation, issued by the Department of Premier & Cabinet. The Policy applies to civil claims and civil litigation involving the state and its agencies, and is based on the principles of "behaving ethically, fairly and honestly to model best practice in litigation".
The obligation to act as a model litigant, as set out in the Policy, requires the state and its agencies to act honestly and fairly in handling claims and litigation by:
- dealing with claims promptly and not causing unnecessary delay
- paying legitimate claims without litigation
- acting consistently
- endeavouring to avoid litigation wherever possible
- where litigation can't be avoided, keeping the costs to a minimum
- not taking advantage of a claimant who lacks resources
- when settling claims, considering the use of confidentiality clauses on a case by case basis
- only undertaking an appeal where there are reasonable prospects of success.
However, the Policy does not prevent the state or an agency from acting firmly and properly to protect its interests. In particular, it does not prevent all legitimate steps being taken in pursuing litigation, or from testing or defending claims made against the state or an agency.
Further resources
For additional guidance, government lawyers can refer to the Law Society of NSW's Guide to Ethical Issues for Government Lawyers and A Government Lawyer's Guide to Rules on Ethical Issues.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
