[Essay question 3:]

1. INTRODUCTION
The function of lawyers is to administer justice, by seeking justice according to law. This means
that a lawyer has done a good job for their client not when their client’s appetite is satisfied, but
rather when their client’s rights are satisfied justly according to law. This can only be
accomplished in our adversarial system if the lawyer complies with the following ethical duties:
 Duty of competence & care;
 Duty of loyalty (including best efforts, following instructions, not assisting the other side,
avoiding conflicts of interest, and confidentiality & privilege);
 Duty of fairness;
 Duty of non-judgment; and
 Duty of honesty.

2. FUNCTION OF LAWYERS
The purpose of having lawyers is to represent the dignity of people. “Dignity” is a person’s social
health, including the capacity to own property, make contracts, and be compensated for torts –
with equal status to others.

Dignity is important because it allows people to be fully in charge of their lives, thereby achieving
justice. So lawyers are in fact seeking justice.

The problem with justice is its subjective meaning. The legal profession, like other professions,
must function with objectivity. But this problem can be overcome by making the assumption that
in our democratic state, an objective standard of justice is embodied in the law. It can therefore be
concluded that the function of lawyers is to seek justice according to law.

3. WHEN HAS A LAWYER DONE A GOOD JOB FOR THEIR CLIENT?

Because lawyers seek justice according to law, they are not only serving their individual clients,
but also the overall justice system. Therefore, lawyers must represent their clients’ claim to justice
(“rights”) rather than their clients’ desires (“appetite”). Sometimes right and appetite coincide (eg.
where the client instructs the lawyer to get as much as they can of their legal entitlement), in which
case the pursuit of the client’s rights also satisfies the client’s appetite. But sometimes appetite is
inconsistent with rights (eg. where the client instructs the lawyer to unjustifiably delay the case
until the other side runs out of money), in which case the lawyer must refuse to act according to
the client’s appetite (of delaying the case), and continue to pursue the client’s rights (by
conducting the case as normal, without delay) or resign. To yield to the client’s appetite when it is
inconsistent with their rights would be to contradict the function of lawyers to seek justice
according to law. Therefore, a lawyer has done a good job for their client, not when they
achieve their client’s appetite, but when they achieve their client’s rights justly according to
law.

Ethical duties are meant to guide lawyers towards achieving their clients’ rights justly according to
law. This is evident from their underlying rationales/justifications. We now examine these duties
and their rationales/justifications:
4. DUTIES OF LAWYERS

4.1 DUTY OF COMPETENCE & CARE

Lawyers must act “with competence and diligence” (PCR 1). This means that lawyers must know
the law well enough to advise or represent their clients, and must take care in doing so. 1

The rationale for this duty is simple: lawyers can only achieve their clients’ legal rights if they
know what the law is, and apply it diligently.

4.2 DUTY OF LOYALTY

The duty of loyalty to clients requires the following things from lawyers:

(A) Best efforts

To do a good job, lawyers must have tried their best for their clients in getting what they are
legally entitled to (as opposed to their appetite). Lawyers “must seek to advance and protect the
client’s interest to the best of the practitioner’s skill and diligence … in accordance with the law
including these Rules” (PCR 12). In other words, the effort that lawyers put into representing their
clients’ rights is conditional upon nothing, not even the lawyers’ moral views. 2

The theoretical justification for this duty of unconditionality is our tripartite adversarial system: the
judge makes the judgment impartially, and the lawyer for each side represents their own side
absolutely. There are problems when the lawyer for one side does not try their best (eg. 70%
effort), while the lawyer for the other side tries their best (ie. 100% effort). Firstly, the parties will
not be equally represented. When combined with the fact that judges make decisions based on
what counsel argue before them, it means that there will not be justice according to law. 3 Secondly,
the judge may be tempted to turn into a partial advocate for the weaker side, which is
fundamentally wrong because a judge is supposed to be totally impartial. Thirdly, the stronger side
may try to help the other side to be fair, which is also fundamentally wrong because the lawyer
then turns into a partial judge. Therefore, to avoid these problems, all lawyers must try their best in
all legal work that they do.

(B) Following instructions

Lawyers must generally act on instructions of the client where possible,4 and must communicate
with the client about their case so that they can give proper instructions (PCR 12.1). This is
because lawyers are supposed to be agents representing their clients’ dignity, not controlling it. If
a lawyer does not follow instructions of the client, the lawyer is making substantive (rather than
legal) judgments for the client, thus depriving the client of his control over his life (ie. his dignity).

However, there are important limits to what a client can command a lawyer to do. Lawyers “must
not act as the mere mouthpiece of the client … and must exercise the forensic judgments called for
during the case independently” (PCR 13.1). This indicates that lawyers cannot follow the client’s
instructions to behave illegally or unethically in breach of PCRs, 5 as lawyers seek justice
according to law.

1 ?
For discussion, see Ysaiah Ross, Ethics in Law (3rd ed, 2000) Chapter 10: Competence and Care.
2
This is similar to the cab-rank rule, that barristers must take any client that comes to them unconditionally
regardless of whether or not they approve of the client. Ross, above n 1, [8.7].
3
In Dietrich v R (1992) 177 CLR 292, Deane J explained that if an accused is unrepresented at trial, there
will be an unfair trial, leading to injustice. Deane J’s reasoning applies to civil cases too.
4
Ross, above n 1, [9.34].
5
Ibid.
(C) Not assisting the other side
Lawyers do not have to correct the opponent’s legal or factual errors (PCR 14.3, 17.3). In fact,
lawyers should not assist the other side in conducting their case, because the adversarial system
requires each lawyer to commit 100% to their own side, leaving 0% to the other side. Also, if a
lawyer assists in the other side’s legal arguments, the lawyer turns into a partial judge.

However, there are 2 exceptions where lawyers must assist the other side:
 Where the other side has made a technical/clerical error, such as a misplaced decimal point in
settlement, the lawyer must correct that error. This is because the legal system does not
function if its participants make technical errors, and everyone in the legal profession has a
duty to make the legal system function.
 Where the lawyer committed or was complicit in a wrong, which caused the other side to make
an error, the lawyer must help the other side fix that error (in order to have justice according to
law). For example, if the lawyer told the client that a document will be damaging to her case,
and the client then deliberately destroyed it, arguably the lawyer was complicit in the
destruction of the document. The lawyer should then notify the other side about the contents of
the destroyed document.

(D) Avoiding conflict of interest

A lawyer must not act for a person in a matter if the lawyer is “aware that the person’s interest in
the matter is, or would be, in conflict with the practitioner’s own interest” (PCR 9.2). This is
because the professional duty requires independence & detachment, so that the lawyer should have
no interest in the outcome of their legal work.

Also, “a practitioner must avoid a conflict of interest between two or more clients of the
practitioner” (PCR 8.2). This is because in an adversarial system, a lawyer cannot be loyal to both
sides of a matter. PCR 8.3 provides a limited exception: a lawyer can act for both sides of a matter
if they consent to it, and are aware that the lawyer (a) may be prevented from disclosing all
information and giving full advice, and (b) will cease to act for all parties if the lawyer would
otherwise be obliged to act contrary to the interests of one or more of them. This exception
acknowledges the practical reality that in some uncontroversial matters, it is possible for a lawyer
to be loyal to both sides (eg. conveyance of property pursuant to an already concluded agreement).

(E) Confidentiality & Legal professional privilege

Lawyers have a duty not to disclose confidential information that they acquired during the client’s
engagement (PCR 3.1). This duty is supplemented by legal professional privilege, which prohibits
the lawyer from giving access to confidential communications made by the client or lawyer for the
dominant purpose of legal advice or pending/anticipated litigation. 6

The justification for confidentiality and privilege is as follows: Assurance to clients that their
communications will be kept secret  Greater willingness of clients to give all relevant
information to their lawyers  More competent and equal representation  Better preservation of
dignity and justice according to law (given our adversarial system). 7

There are exceptions to confidentiality and privilege:

 Clients may authorise disclosure, or waive confidentiality & privilege (PCR 3.1.1).
 Lawyers must report probable future crimes (PCR 3.1.3). For example, if a client tells the
lawyer that he plans to break into someone’s house to find a piece of evidence, the lawyer
must report that to police.

6
Baker v Campbell (1983) 153 CLR 52; Grant v Downs (1976) 135 CLR 674; Esso v FCT (1999) 168 ALR
132.
7
Attorney-General (NT) v Maurice (1986) 161 CLR 475 (Deane J).
 Lawyers must disclose if they are otherwise complicit in the commission of an ongoing crime,
fraud, tort or other wrong by their client.8 For example, suppose a lawyer is acting for a
mechanic to sell his motor repair business, and the mechanic tells the lawyer that he did not
repair the brakes of some cars properly, since he is leaving the country for good next week. In
this case, there is an ongoing tort against the drivers of those cars. The lawyer would be
complicit in the tort since the lawyer is currently acting for the tortfeasor. Therefore the lawyer
should reveal the matter to the relevant authorities immediately.

4.3 DUTY OF FAIRNESS

Lawyers cannot use unfair tactics to win their client’s case. 9 More specifically, lawyers must not
make forensic judgments “to invoke the coercive powers of a court or to make allegations or
suggestions under privilege against any person” that are not “reasonably justified by the material
then available” or not “appropriate for robust advancement of the client’s case on its merits” (PCR
16.1).

The rationale lies in justice according to law. If the lawyer wins a case by using legal tactics that
are unjustifiable on the facts or merits of the case (eg. delay tactics to bankrupt the other side,
spurious allegations of misconduct or defamation to intimidate other side), the lawyer has not won
the client’s rights, and there is no justice according to law.

4.4 DUTY OF NON-JUDGMENT

Lawyers must never make the judgment that evidence is true/false, or that their client is
guilty/liable.10 This is because such a judgment is for the judge or jury, not the lawyer, to make.11

This duty, coupled with adversarial loyalty, means that the lawyer is entitled to assume that any
evidence adverse to their client’s case is untrue. The lawyer must conduct the case to its full
extent, even if it is inconsistent with the adverse evidence. So, for example:
 If a 3rd party tells the lawyer that the client confessed guilt to them, the lawyer must dismiss it
from her mind and defend the case to its full extent.
 When a lawyer is cross-examining a witness thought to be telling the truth, the lawyer can
discredit the witness by suggesting falsehood (subject to PCR 16).
 If a lawyer obtains evidence from 2 experts, one favourable and one unfavourable, the lawyer
can conduct the case on the basis of the favourable evidence.

If, however, the client admits to the lawyer directly that an adverse evidence is true, or that he is
guilty/liable, then the lawyer can no longer assume the contrary, and must conduct the case
consistently with that admission (see PCR 15.2 for criminal confessions, although the principle
should extend to civil admissions). This is because adversarial loyalty requires lawyers to believe
their clients’ admissions to them. Nevertheless, the client could be mistaken in their admission, so
the lawyer is still entitled to test the truth of any adverse evidence.

8
G E Dal Pont, Lawyers’ Professional Responsibility in Australia and New Zealand (2nd ed, 2001) 301-303.
For example, Attorney-General (NT) v Kearney & Northern Land Council (1985) 61 ALR 55 (concerning
deliberate abuse of statutory power); Diamond v Stratton (1982) 95 FRD 503, 505 & Irving Trust Co v
Gomez (1983) 100 FRD 273, 277 (concerning crime/tort). Other examples include fraudulent breach of trust,
fraudulent conspiracy, trickery and sham contrivances.
9
Ross, above n 1, [14.11] to [14.60].
10
Ross, above n 1, [15.22] to [15.27].
11
Dr Johnson, saying “[a lawyer] is not to usurp the province of the jury and of the judge and determine
what shall be the effect of evidence – what shall be the result of legal argument.” Ross, above n 1, [15.30].
For example, X is charged with stabbing V in a pub. The prosecution witness Z testifies that he
saw X stab V. X then confesses to the lawyer that Z is correct. When the lawyer cross-examines Z,
the lawyer cannot put to Z that he did not see X stab V, because that would be inconsistent with
X’s confession (breach of PCR 15.2.2). However, the lawyer can still test Z’s credibility, by
suggesting that Z was drunk at the time, or it was too dark to see the stabber’s face.

4.5 DUTY OF HONESTY

Lawyers must themselves be honest.12 For example, they:
 must be honest to their clients (PCR 1);
 cannot make a misleading/false statement of fact or law to the court (PCR 14.1 & 14.2) or
opponent (PCR 18.1 & 18.2); and
 cannot suggest to a witness that false evidence should be given (PCR 17.1).
This is because when a lawyer lies to the court, they do not win the rights of the case, and
accordingly fail in their function of seeking justice according to law. Also, the justice system
places trust on lawyers, who must not abuse that trust.

Furthermore, a lawyer may have to cease acting if they learn of a client’s dishonesty to court. PCR
15.1 states that if the “client informs the practitioner, before judgment or decision that the client
has lied in a material particular to the court” then the lawyer must seek instructions from the client
to inform the court of the lie, and if the client refuses to give that instruction, the lawyer must
refuse to take any further part in the case, but must not otherwise inform the court of the lie.

The underlying rationale is that if the lawyer is aware of the client’s lie, and continues to act for
the client without revealing the lie, the lawyer becomes complicit in the lie, and is not achieving
justice according to law.

5. CONCLUSION
Lawyers are committed to justice according to law. This means lawyers have done a good job for
their client when they have represented their client’s rights. The client’s appetite is an irrelevant
consideration, because appetite has nothing to do with justice. In order to successfully represent
clients’ rights justly according to law (and therefore do a good job), lawyers comply with the
ethical duties of competence, care, loyalty, fairness, non-judgment, and honesty.

12
Ross, above n 1, [14.61].