Government Lawyers can have multiple levels of ethical and professional conduct obligations. The following extracts slides from presentations on Ethics for Government Lawyers I delivered in March 2016

Ethical Issues for Government Lawyers

Sources
Overlayer
Consistency and Primacy
Defining Good, Independent Advice
Understanding Confidentiality
Managing Conflicts
Understanding Model Litigant Principles

Lawyer Laws – Base Provisions

Legal Profession Uniform Law
Legal Profession Uniform Law Application Act
Legal Profession Uniform Regulation 2015
Legal Profession Uniform Law Application Regulation 2015
Legal Profession Uniform General Rules 2015 :-
Admission Rules 2015
Australian Solicitors Conduct Rules 2015
Legal Practice (Solicitors) Rules 2015
Continuing Professional Development (Solicitors Rules 2015)

Public Sector Laws Some Public Sector Overlayer Issues

Government Sector Employment Act

Public Sector Codes of Conduct

Public Sector Governance Issues

Oversight Agencies and the Media

Defining Good, Independent Advice

Who is the client

The Crown/the State/the Authority/the Minister/the Departmental Secretary/the CEO/the Rest

Objective Practical Advice v Unduly Facilitative Advice

Understanding Confidentiality

General lawyer confidentiality

Confidentiality Agreement Obligations

Confidentiality Obligations – Legal e.g. Privacy Laws

Managing Conflicts

Internal to Agency
Cluster Conflict– rare but possible

Understanding Model Litigant Principles

Civil, All Courts Tribunals Enquiries and Arbitration Including ADR
? Curially Enforced
Subject to internal guidelines and Premier’s Memoranda
More than acting honestly and consistently with core rules and beyond normal lawyer ethical obligations but to do with complete propriety, fairness and acting in accordance with highest professional standards
Promptness and avoiding unnecessary delay
Paying legitimate claims without litigation where clear liability exists
Consistent handling of claims
Avoid cost of litigation where possible including usable tentative dispute solution
Minimise costs by not requiring other party to prove things known to be true and not contesting liability where the state or agency knows the issue is really about quantum
Promptness and avoiding unnecessary delay
Paying legitimate claims without litigation where clear liability exists
Consistent handling of claims
Avoid cost of litigation where possible including usable tentative dispute solution
Minimise costs by not requiring other party to prove things known to be true and not contesting liability where the state or agency knows the issue is really about quantum
Don’t disadvantage claimants lacking resources to litigate claim
Avoid technical defences without good cause
Don’t prosecute appeal without reasonable prospect of success
Does not prevent legitimate steps to be taken in pursuing litigation and testing or defending claims
Do not prevent: –
Recovery of costs and enforcing costs orders;
Relying on Legal Professional Privilege or other privilege including Public Interest Immunity;
Pleading limitation periods;
Seeking security for costs;
Opposing unreasonable repressive claims or processes;
Requiring opposing litigants to comply with procedural obligations;
Moving to strike out untenable claims or proceedings.

Model Litigant Principles – Some Law

Civil Procedure Act 2005 (NSW) s.56(1)
“The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.“
Priest v State of New South Wales [2007] NSWSC 41
Johnson J
“34 In a sense, s.56 has the result that every litigant in civil proceedings in this Court is now a model litigant. ”

Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201 – Baston JA

Costs awarded against SRA for only filing submitting appearances and not “opposing” by way of assistance to the Court

Roads and Traffic Authority (NSW) v Dederer.
[2007] HCA 42 at para 298

Heydon J “There is nothing wrong with wealthy and powerful defendants requiring plaintiffs to prove their cases, but in the circumstances, as a matter of common humanity, not legal duty, the RTA ought not only to have attempted to tell the plaintiff’s advisers who controlled the bridge, as it did, but also to have stated the underlying facts correctly. “

some links

www.lawsociety.com.au/ForSolicitors/professionalstandards/ruleslegislation/index.htm
http://www.justice.nsw.gov.au/legal-services-coordination/Documents/cabinetapp-mlp.pdf

http://arp.nsw.gov.au/m2009-17-briefing-senior-counsel
http://www.justice.nsw.gov.au/legal-services-coordination/Documents/cabinetapp-ebp.pdf
https://www.comlaw.gov.au/Details/F2012C00691
http://www.justice.nsw.gov.au/legal-services-coordination/Documents/cabinetapp-mlp.pdf

The Boring Bits

© Eakin McCaffery Cox 2016 Presentation Gregory Ross

Copyright and contribution Notice

This work is copyright and except as permitted under the Copyright Act (Australia) 1968 no part of it may be reproduced, stored or transmitted by any electronic or other process without the prior written permission of the copyright owners.  
The author acknowledges the contribution by Debbie Tran, Solicitor, of Eakin McCaffery Cox to the content of this paper.

Limited permission
The authors and copyright owners grant to the Legalwise and those attending its seminar a limited, free, non-exclusive, perpetual right to copy or reproduce this work for personal or in-house training purposes, on the conditions that it:
Attributes the source of the work
Reproduces the above copyright notice on any partial or full copy of this work
Does not edit or alter the work in a manner that renders any of the information in it incorrect or misleading or derogates from the integrity of the work.

Disclaimer
This work was prepared for the presentation of a seminar and is intended to provide a broad overview about the topics covered.

Neither it nor the ensuing discussion are intended, and must not to be relied upon, as legal advice. While the authors have made every effort to ensure the information in this work is up to date and accurate, they do not accept any responsibility or liability for any errors or inaccuracies.