02 December 2020

Gobbo and Victorian Legal Profession

More extracts from the report of the McMurdo Royal Commission into the Management of Police Informants noted yesterday. 

Legal profession regulation 

Lawyers have considerable power and authority when representing a client. They have expert knowledge about the law and legal system, and access to their client’s confidential information. Their advice and actions can have a direct and significant influence on their client’s wellbeing, the outcomes the client is able to achieve, and the client’s future. When lawyers deliberately betray their client’s trust or act in ways contrary to their client’s interests, it can have a devastating impact on the client. It is also, as this inquiry has shown, apt to undermine both the integrity of the criminal justice system and public confidence in the legal profession. 

Legal profession regulation exists to protect consumers and the public, and to support the proper administration of justice. Victoria’s legal profession regulatory framework consists of legislation, the common law, professional conduct rules, support services and ongoing education. These elements work together, requiring lawyers to demonstrate high standards of ethical and legal practice. When lawyers fail to uphold these standards, complaint, investigation and disciplinary mechanisms act to correct and deter the behaviour. 

Due to the limits of the Commission’s terms of reference, it has not undertaken a wholesale 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. 

While Victoria’s legal profession regulatory framework has changed significantly since Ms Gobbo practised as a lawyer, there is scope to further strengthen and improve aspects of it. 

It is important that lawyers fully understand the duty of confidentiality they owe to their clients and their responsibility to maintain appropriate professional boundaries. It would be beneficial to clarify and harmonise these aspects of the professional conduct rules for solicitors and barristers. 

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. Embedding legal ethics education in lawyers’ continuing professional development, including through the use of practical, scenario-based learning, would support them to understand the common ethical issues that can arise in legal practice and enhance their skills to manage those issues. Strengthening awareness of and access to the various ethical supports that are available to lawyers is also important. 

When a complaint is made about a lawyer’s conduct, it is critical that the processes for investigating it are not only independent, but also seen to be independent. Under the current model, the Victorian Legal Services Commissioner is responsible for the receipt, management and resolution of complaints about the professional conduct of lawyers. The Commissioner delegates some of their powers regarding the conduct of barristers to the Victorian Bar, including the power to investigate complaints against barristers. While this approach has benefits—including the ability to draw on the practical insights and subject matter expertise of the Victorian Bar regarding accepted standards of legal practice and advocacy—it risks a public perception that the model lacks independence, given that another function of the Victorian Bar is to advocate on behalf of its members. Recognising the importance of public confidence in all branches of the legal profession, the Commission recommends that the Victorian Legal Services Commissioner holds sole responsibility for investigating complaints about barristers, so that there is a single, consistent, independent approach to the management of all complaints regarding lawyers in Victoria. 

The Commission has also carefully considered the potential benefits and risks of a mandatory requirement for lawyers to report suspected misconduct by other lawyers. While some submitters raised legitimate issues and concerns, the Commission considers that the introduction of such a mandatory reporting requirement would deter misconduct by lawyers, encourage their adherence to high ethical standards, strengthen public confidence in the legal profession, and bring it into line with other professions and fields where mandatory obligations apply, including the health sector and policing. 

The Commission also recommends reforms to strengthen the rigour of the legal admission process and to support access to independent legal representation for people in police custody. 

Finally, in light of the events that led to this inquiry, the Commission recommends that legal profession regulators and professional associations work together to develop communications material for 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. 

Issues arising during the conduct of the Commission’s inquiry 

The Commission had both an investigative task, focused on examining events that happened many years ago, and a policy reform task, focused on assessing current policies and processes and identifying ways that they could be improved. Both tasks required the Commission to use its powers under the Inquiries Act and gather information from a range of sources, including from Victoria Police and other law enforcement agencies, statutory bodies and office holders, the courts and government departments. 

The Commission’s inquiry involved highly sensitive matters that are not typically subject to public scrutiny. There are many good reasons for this. Keeping the identities of human sources confidential is critical to their safety, and not revealing specific details of covert police methods helps to ensure police are not hindered in their efforts to disrupt, prevent and investigate crime. Some sensitive information relevant to the inquiry was specifically covered by the Witness Protection Act 1991 (Vic) or court suppression orders, which prevented the Commission from publishing the information or referring to it in public hearings. 

Accordingly, the nature of many matters examined by the Commission created unavoidable obstacles to accessing, using, sharing and publishing certain information. To a significant degree, the Commission was able to manage and resolve these issues. In many cases, it developed protocols and arrangements that enabled access to, and publication of, relevant information in a way that minimised the legal, operational and safety risks. 

As the Inquiries Act is relatively new, having commenced in 2014, this was the first Victorian royal commission that relied heavily on the investigative and coercive powers the legislation provides. This meant the Commission had to tackle novel issues relating to the practical operation of the legislation and its interaction with other areas of law. 

The most significant challenge for the Commission related to information subject to PII claims. Under the Inquiries Act, it is a reasonable excuse for a person not to comply with the Commission’s power to compel the production of documents on the basis that the information is subject to PII. This legislative exception, combined with the volume of material over which Victoria Police claimed PII and the broad nature of many claims, complicated and delayed the production, review and publication of material. This in turn hindered the Commission’s ability to inquire into subject matter relevant to its terms of reference. Accordingly, the Commission recommends amendment of the Inquiries Act to remove the ability to refuse production of material to a royal commission on the basis that the information is subject to PII. 

Other potential reforms to improve and modernise the operation of the Inquiries Act include:

  • clarifying provisions that exempt certain bodies and persons from the requirement to comply with the coercive powers of a royal commission 

  • creating a power to compel a person to provide a written statement within a specified timeframe 

  • enhancing the flexibility of requirements regarding service of notices to attend and produce

  • modernising requirements for publishing non-publication or suppression orders made by royal commissions and boards of inquiry. 

The Commission faced considerable challenges in relation to document production. In particular, Victoria Police’s frequent failure to produce documents in a timely and comprehensive manner—together with its at times narrow view of, and obdurate approach to, the scope of notices to produce—unnecessarily diverted the Commission’s resources and impeded the inquiry. Consequently, at the time of finalising the report, the Commission cannot be certain that it received all information from Victoria Police that was relevant to the inquiry. The Commission’s findings and recommendations, and the submissions of Counsel Assisting, are based on material that was available to the Commission at the time of writing.