Governments must abide by Model Litigant policies, but so should private sector lawyers, NSW Legal Services Commissioner Steve Mark says. Extending the legal ‘fair go’ principle is necessary so the law can do its fundamental job, protecting the individual from the excesses of the state.
Conflicts of Interest:
Challenges for the Government Lawyer
Extracts from an address o the 5th Annual Public Sector In-House Counsel Conference,
27 – 28 August 2009, Canberra
by Steve Mark, NSW Legal Services Commissioner*
It is a fundamental principle of legal practice that the primary duty of a lawyer is to the Court. Inherent in the lawyer’s duty to the Court is a duty to the community through the lawyer’s high ethical standards and duty to uphold the law.
The duty to the Court and the law include, among other things:
- a duty of full disclosure of the relevant law;
- a duty of candour not to mislead the Court, or to knowingly permit your client to do so;
- a duty not to assist in any form of improper conduct; and
- a duty to conduct cases in the Court efficiently and expeditiously.
A lawyer’s duty to the Court and the law stands over and above any other ethical duties. The duty thus stands over and above a lawyer’s fiduciary duty to his/her
client, regardless of where the lawyer is employed, in-house counsel and government lawyers alike. In my view the best way a lawyer can carry out their duties effectively is if they hold a practising certificate and act as a model litigant with complete propriety, fairness and in accordance with the highest professional standards.
In his paper will argue that the regulatory framework that is applicable to private lawyers should also be applicable to public lawyers and in-house counsel, and that the regulatory framework applicable to public lawyers, such as the Model Litigant policy, should also be applicable to private lawyers and in-house counsel.
(Mr Mark went on to argue why all lawyers, including those who work for the government and its agencies, should hold a practising certificate. Traditionally, government lawyers have not done so.)
Model litigant principles
A second regulatory mechanism that promotes good ethical practice is the model litigant principles. The model litigant principles generally provide that government lawyers, whether plaintiffs or defendants, act with complete propriety, fairly
and in accordance with the highest professional standards in litigation and in all related matters.
Open, honest and reasonable dealings by the lawyers who represent them continue to remain key expectations of the government today. This expectation has remained largely unchanged since 1912 when Sir Samuel Griffith, the then Chief Justice of the High
Court, in Melbourne Steamship Co. Ltd v Moorehead (1912) 15 CLR 333, referred to
‘the old-fashioned traditional, and almost instinctive, standard of fair-play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary.’
The expectation that government litigants should act with complete propriety, fairly and in accordance with the highest professional standards, is said to derive from the fact that the government lawyer’s client is not an individual
citizen but the citizenry at large, a client of whom the community expects high standards and whose ultimate objective is that justice be done.
In 2006, this expectation was formalised by the Australian Government with the formulation of the Commonwealth Model Litigant Policy. The policy requires the Commonwealth to act with honesty and integrity and in the public’s best interest, whilst retaining the right to mount a defence.
Three years after its adoption, on 8 June 2008 the NSW Government introduced its own model litigant policy. The NSW Model Litigant Policy largely reflects the Commonwealth equivalent. It has been endorsed by Cabinet to assist in maintaining proper standards in litigation and the provision of legal services in NSW.
The NSW Model Litigant Policy set out a number of obligations for a government lawyer. These obligations include:
- acting fairly and consistently; avoiding litigation;
- paying legitimate claims without litigation;
- minimising costs;
- refraining from taking technical defences;
- not taking advantage of a claimant who lacks resources;
- not appealing unless there are reasonable prospects for success or it is in the public interest; and
- apologising where the State or an agency is aware that it or its lawyers have acted wrongly or improperly.
The expectation that the State and its agencies will act in accordance with the model litigant principles has been recognised by the courts on numerous occasions. In Wodrow v Commonwealth of Australia  FCA 403, for example,
Stone J stated:
“The Commonwealth’s role as a model litigant influences the way in which the Commonwealth conducts litigation, it does not impinge the Commonwealth’s ability to enforce its substantive rights. I see nothing in the judicial discussion of the concept of the Commonwealth as a model litigant which is contrary to note five in Appendix B to the Legal Service Directions referred to above. Indeed, in seems to me that, as evidenced
by the Australian Government Solicitor’s Legal Briefing No. 48, the Commonwealth considers that it is part of its role as a model litigant to generally pursue costs awards in its favour.”
Although the Commonwealth, through its delay, may have fallen short of its own standards in pursuing the costs order made in 1993, this does not lead to the conclusion that it should be precluded from enforcing the order. I do not think the applicant’s case is assisted by the model litigant policy.”
A failure to follow the Model Litigant principles can attract a costs order.
The Model Litigant policy embodies good ethics, good business and plain old common sense. The policy also embodies the concept of justice and reinforces the very
purpose of a lawyer which is to protect society from the injustices of the State. It clearly represents good practice. Why then is it still only applicable to government lawyers?
It is my view that, just as the practising certificate regime should be extended to all legal practitioners, the model litigant policy should equally apply to all
Application of these regulatory mechanisms across the board is of the utmost necessity in ensuring that the very purpose of law, to protect the individual from
the excesses of the state, is carried out effectively. Ethics is the glue that holds the legal profession together. Let’s strengthen this glue by reconsidering the traditional regulatory framework. Evaluating the current practising certificate regime, the model litigant policy and the limitations of the fiduciary relationship seems to me to be
a good place to start.
In his address, Mr Marks also outlined the size of the legal profession in Australia:
Over the past decade the legal services market in Australia has changed considerably both in terms of sophistication and size. During the 2007-2008 financial year, for example, legal services businesses and organisations in Australia
generated income of $18 billion as compared to only $10.6 billion in 2001-2002. As
at end of June 2008 there were 15,326 businesses and organisations mainly engaged in the provision of legal services or legal support services in Australia.
According to the Australian Bureau of Statsitics report, Legal Services, Australia, as at June 2008 there were 99,696 persons in Australia employed in legal services as practising lawyers and non-legal staff. Of the 99,696 persons
employed, 4,514 persons were employed as government lawyers (including public prosecutors).
In NSW there are more than 22,100 lawyers who hold practising certificates today. Of this number, 16,457 practice in the private sector (69.94%), 2755 practice in the public sector (11.71%) and 4,319 practice in the corporate sector
According to the Law Society of NSW, the legal profession has, since 1988, grown by more than 125.4% with an annual average growth rate of 4.2%. The Law Society’s statistics only concern lawyers who hold a practising certificate. This
being so the number of lawyers practising in NSW may in reality be higher than the Law Society’s statistic.
Irrespective of this lack of data it is quite clear that the legal profession in Australia has grown considerably over the years. Law Society projections indicate that the number of legal practitioners in NSW will continue to increase.
As the number of lawyers has continued to grow over the years there has been a corresponding growth and overlap in the roles of lawyers who practice in the private, corporate and public sectors.
Today we find private, public and in-house lawyers more or less practising in the same areas of law, being briefed by the same or similar clients and appearing before the same courts and tribunals.
Mr Steve Mark was appointed as the first Legal Services Commissioner in NSW in 1994, and he continues in this role today. Mr Mark was the President of the NSW Anti-Discrimination Board from 1988 to 1994. He has practised law in Australia and the United Kingdom, specialising in criminal, immigration and human rights law.
For Mr Mark’s full address, with footnotes, go to: