This paper is in draft form. The author has prepared the paper for the conference and it is her intention to modify and complete the paper after the conference. Please obtain Helen’s consent prior to using information contained in this paper. Thank you. CONFERENCE OF REGULATORY OFFICERS HOBART, 6 November 2015 ‘Turn away’ or ‘triage’. Engaging with conflicts of interest in the bush. Helen McGowan Doctoral researcher The Australian National University College of Law E helen.mcgowan@anu.edu.au M (+61) 417 245 710 INTRODUCTION This paper draws on recent research to explore how the geographical location of legal practice can influence a lawyer’s ethical decision making. Previous socio legal research by Tomasic and Coverdale identified that conflicts of interest are more likely to occur in country communities compared to city legal practice. 1 The research which is the subject of this paper has identified a co-relation between geographical remoteness and the way that lawyers identify and respond to conflicting interests. The author contends that the geographical location of a legal practice, with fewer alternative legal services available to refer conflicted clients, creates ethical tension for the lawyer who is under pressure to ‘bridge the justice’ gap. 2 This research suggests that there is less screening for conflicts, and more ‘triaging’ of client requests, in remote areas. Some research participants explain their practice as necessary to ensure they can service their communities. This justice gap will continue and this ethical tension will remain if Australian lawyers and regulators ignore this under resourced cohort of Australian lawyers. The author suggests that this research finding invites a collegial and compassionate response from regulators. Such a response could include fostering the pragmatic exploration of referral pathways for conflicted clients, designing ‘continuing professional 1 Roman Tomasic, Law, Lawyers and the Community. Some observations from a survey of community attitudes and experiences. (The Law Foundation of New South Wales, 1976); Richard Coverdale, 'Postcode Justice. Rural and Regional Disadvantage in the Administration of Law in Victoria' (Deakin University, Centre for Rural Regional Law and Justice, July 2011) 2 ‘Bridging the justice gap’ is a term used in the Australian Government Productivity Commission, Access to Justice Arrangements. Draft Report (April 2014)
‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5 development’ sessions to develop skills in triage assessment, and encouraging ‘data hygiene’ to allow the ‘unbundling’ of legal services. 3 DE CENTRED REGULATION OF ETHICAL PRINCIPLES Australian lawyers hold themselves and each other accountable for ethical conduct. Regardless of geographic context, the same uniform professional conduct rules and principles apply. This ethical uniformity has been strengthened through a national approach to rule setting with the 2002 iteration of the ‘Model Rules’, followed more recently by the 2011 Australian Solicitors Conduct Rules. A corollary to this expectation of ethical uniformity is that lawyers should make the same ethical decisions regardless of context. This expectation is reinforced through the common law test for assessing appropriate professional conduct. This common law test is that a lawyer’s conduct is judged by their peers and assessed against an objective test of public perception. This test was established in the case of Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. 4 The often-cited words used by Lord Esher in the Allinson test are: If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency. In other words, how is the behaviour viewed by professional colleagues? Although Allinson involved the conduct of a medical practitioner, the professional misconduct test was extended to the legal profession 18 years later in Re a Solicitor: ex parte Law Society 1912 KB 302 . This common law test for professional misconduct has been adopted into Australian law in 1960. 5 The pivotal role of the judgment of peers was restated in Adamson v Qld Law Society [1990] 1 Qd R 498 when the court stated: The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency. This common law test for professional misconduct has been codified in the regulatory framework. Within Australia, it is defined in the model Legal Profession Acts , the Australian Solicitors Conduct Rules and the Legal Profession Uniform Law as: (a) unsatisfactory professional conduct … where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence ; and (b) conduct … whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the solicitor is not a fit and proper person to engage in legal practice. 6 3 Productivity Commission above, n 2 ¡ 4 The case related to the statutory interpretation of s29 of the Medical Act ‘guilty of infamous conduct in any professional respect’ and the test of deciding what was infamous conduct was developed by the then Master of the Rolls, Lord Esher 5 Allinson endorsed by Australian courts on many occasions. Re a Solicitor [1960] VR 617 at 620 Dean J; Re Thom (1962) 80 WN (NSW)968 at 969 FC Re Veron (1966) 84 WN (pt 1) (NSW) 136 at 143; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203) per Glass and Samuels JJA; Adamson v Qld Law Society Inc [1990] 1 Qd R 498 at 507 per Thomas J 6 ASCR glossary, s 296 – 297 Legal Profession Uniform Law ¡
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