A Matter of Ethics
This is a revised version of a speech delivered at the Francis Burt Chambers' Continuing Professional Development Dinner[1]
Thank you, most sincerely, for the opportunity to speak about matters ethical. It is now quite some time since my first day at Francis Burt Chambers. Even so, I am not yet old enough to forget the pressures sometimes faced by barristers when it comes to the way a case should be run, particularly pressure from a client about the approach to be taken. Yet, your ethical responsibilities mean that it is absolutely fundamental that you push back. You must always ask yourself what should be done in the case and why, and then do what you think should be done.
You will enjoy this job far more if you do things the way you believe they should be done. If you take control of the forensic choices to be made in the case. If you question what is going on. If you focus on your obligation to present each case clearly, concisely and founded in legal principle. If you do these things, you will get better at what you do, judges will listen and you will enhance the fairness of the court system for all. It takes time and it takes focus, but it is worth it. More importantly, it will also mean that you will present your client's best case and afford them a fair and proper opportunity for a favourable outcome.
In the past I have spoken to many of you about my views on professional ethics and the problems with conduct rules. I am a proponent of virtue ethics which emphasises the importance of a person's character over rule-following when it comes to ethical behaviour in the practice of the law.[2] I am not here to restate those things, but they will flavour what I say this evening.
I will begin, if I may, by emphasising that all lawyers act for their clients as lawyers. No client can ask or expect a lawyer to advance the client's own interests in a way that an ethical and competent lawyer would not. As officers of the court, lawyers must always exercise professional judgments in accordance with good ethical practice.
Consequently, there can be no conflict between the duty to the court and the duty to a client.[3] Indeed, it is not for the client to direct the lawyer how to carry out instructions.[4] The instructions from the client concern the work that is to be done. Those instructions will be to sue, to defend, to mediate, to arbitrate, to conciliate, to appeal, to compromise, to enforce a judgment, to petition for bankruptcy and the like. Importantly, the client does not get to tell you how to do those things.
In carrying out your instructions, your responsibility is to act only as a good lawyer would. You are not a 'hired gun'.[5] You are not the client's proxy. You are a lawyer who trusts in your own skill and character.
Of course, the views of the client can and should be sought.[6] But the way in which the instructions are to be carried out is entirely a matter for the lawyer to determine in accordance with the lawyer's professional obligations and skill including as to every aspect of the way the case is conducted.
A surgeon does not perform surgery just because that is what the patient wants. And if the surgeon is satisfied that it is ethical to perform a particular procedure, it is up to the surgeon to determine the way it will be done. So too, a lawyer is never the mere mouthpiece or puppet of the client.[7]
In a moment I want to address and focus on one example which exposes the importance of the difference between the client's instructions (which determine the scope of the work to be done) and the professional obligations of the lawyer (which determine the way that work is to be done). This example concerns your obligations in cases conducted by litigants in person.
However, before I discuss this topic, I want to say something briefly about two ways of looking at the role of ethics in society as a whole.
Views on ethics - a brief comment
On the one hand, ethics may be viewed as what is usually done according to well-founded or well-accepted standards or norms of behaviour that are observed by principled people of good social standing. Viewed in that way ethics tends to reinforce the existing social order and also tends to preserve the status of those who are advantaged by that social order.
On the other hand, ethics can be viewed as that which should be or ought to be done. Viewed in that way, ethics looks critically at the status quo, the demands that are being made, the expectations that are being imposed and evaluates in an independent way, using personal judgment, how things should be. An approach to ethics of that kind requires some form of philosophical perspective or system of beliefs against which to measure things and to provide direction as to what to do.[8] It is not enough to look at the way things are done. It is necessary to be able to look critically and form a view about what should be done in the circumstances.
To be clear, I am not speaking about moral choices you might make that affect your own standing in society, whether you are seen to be, or consider yourself to be, a 'good' human. Rather, I am speaking about a way of looking at everything around you that enables you to evaluate whether society and its institutions should continue to be the way they are. I am referring to a viewpoint that requires a refocusing away from the way you should be in the world to consider the waythe world in which you are should be.
Fundamentally, an ethical perspective as to the way things should be requires you to put your own interests to one side. It requires you to look at things from the perspective of society as a whole and consider how best to promote fairness, justice and the well-being of others. It is an outward facing idea that is concerned not so much with individual morality but 'social morality'; the things that promote social order and cooperation; and the things that allow us to be cohesive as a community.
By social morality, I mean the ethics that guide those aspects of the things we all do that affect the way we all live together. In particular, those actions that affect the fairness of our institutions, relevantly for present purposes the way our court system administers justice. I am seeking to encourage a collective rather than an individualistic perspective on the ethical practice of the law.
The more robust our social order, the more we can trust in each other. The more we feel that we belong and are protected. The more we also identify with the suffering and the success of others. We tend to be more able to adopt a perspective that can see and understand both sides and can seek outcomes that respect and protect, even advantage, all of us, together.
For each of us, our personal convictions and beliefs as to social morality guide our attitudes and behaviour as fundamental aspects of social order: how we decide to vote, our views about free speech, how we exercise our rights to property, whether we join a queue, whether we pay tax, whom we ask into our homes, whether we are involved in community organisations, what we do on Australia Day, the way we speak to other people in our everyday lives and, I want to suggest, the way we work as lawyers.
Behind each of these choices is an ethical view about the way we should be as a society. It may be operating at a subconscious level, but it is there and it has very significant consequences. Just as the actions of buyers and sellers in a market economy determine the goods and services that are produced in the economy (as signalled through prices), so too the attributes and characteristics of our civil society are a function of the myriads of individual actions undertaken by its members.
The conception of lawyers as officers of the court is a form of social or institutional morality. It conceives of every lawyer as being first and foremost a person who seeks to uphold and promote the administration of justice, not just as it is but as it ought to be. It recognises that, for the sustenance of a fair court system, it is necessary for the individual actions of each and every lawyer to be guided by an understanding that it is their actions that both sustain the law as an institution and frame perceptions as to whether it can be trusted.
Every one of you is consequential when it comes to the way the courts work and the law is administered. Every day the way you act, the things you say and the decisions you make about how to present a case have consequences for the way the legal system is administered and experienced by those caught up in its processes.
So, what I want to suggest to you this evening is that mostly, the due discharge of the duty that a lawyer has as an officer of the court requires a keen focus on the ways that the law as a whole should be administered rather than concern for what might be thought to be the ethical rule that governs the individual responsibilities of the lawyer in the particular case.
A lawyer's paramount duty to the court
Justice David Ipp, in his foundational article on ethical obligations published in the Law Quarterly Review, said that many of the 'particular duties' that fall under the umbrella of a practitioner's duty to the court:[9]
… are derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest, obstructive or inefficient practices. The essence of these duties is the requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the cause of justice. By their nature, these requirements are immutable, but the content of the particular duties that flow therefrom may change over time as litigation practices and social values change'.
(footnotes omitted)
These matters are fundamental. They are not about our legal knowledge or our skill in formulating arguments. They are much more important because adherence to their requirements ensures fairness in the administration of the law and is as deep in its importance as an independent judiciary.
Now, having set the scene, I will turn to the duties of barristers in cases involving litigants in person which stem from this paramount duty.
The duties of barristers in cases involving litigants in person
I will begin with the court's duties when it comes to litigants in person. Perhaps the leading statement is to be found in Hamod v State of New South Wales[10] where it was said that:[11]
In the context of an unrepresented litigant, the duty [of the Court to ensure that a trial is fair] requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented.
(citation omitted)
That statement exposes two fundamentals. First, every personal litigant has a right to appear in their own cause.[12] Second, it is the duty of the court to ensure a fair trial.[13] The intersection of these two fundamentals means that where one litigant appears in person and a lawyer appears for the other party, the court has particular responsibilities to discharge in order to ensure a fair hearing for all parties. The court cannot favour the interests of litigants in person but equally 'in considering the dictates of justice … courts [should not] ignore the disparity which can exist between the resources available to' either party. [14] Though what is precisely required to ensure a fair hearing in each case depends on the circumstances,[15] as a result of considerations of fairness appurtenant to cases involving litigants in person, the Court must:[16]
- Explain the procedures of the court to the litigant in person;
- Ensure that every aspect of the court's procedures is administered in a manner that is fair, taking account of the fact that the person is not legally represented;
- Expose the consequences if particular steps are not taken by the litigant in person, such as by failing to lead evidence from an available witness;[17]
- Explain the cost risks and the orders that may be made if the litigant in person is unsuccessful;
- Consider whether the litigant in person is competent to conduct the proceedings;[18] and
- Identify whether a lack of legal knowledge means that the person has failed to claim obvious rights or advance arguments.
However, it is important to emphasise that the court does not offer positive assistance beyond what is appropriate to diminish disadvantage.[19] The court does not offer advice or formulate the case for the litigant in person or otherwise act in a manner that would be seen to favour the litigant in person.[20]
Equally, the court does not excuse the litigant in person from behaviour that works unfairness for the represented party and must be mindful of any additional cost consequences for that party.[21]
What does all this mean for the lawyer acting for the represented party? First, the fact that the court will be taking these steps must be expected and embraced, not resisted. The lawyer must explain to the client why these things are being done and certainly should not complain or undermine these incidents of fairness in the conduct of the proceedings.
In addition, given that a lawyer is an officer of the court, any lawyer communicating with a litigant in person must approach the conduct of the case on the basis that the court must discharge the responsibilities I have just explained. The lawyer must adjust the steps that will be taken to take account of the fact that there is no lawyer on the other side.
It is entirely inappropriate to treat a litigant in person as if they were a lawyer. No person with the kind of perspective I described earlier in these remarks would do so.
Further, in my view, the lawyer's obligation to assist the court means that the lawyer, like the court, has an obligation to ensure that the conduct of the proceedings is fair taking account of any disparity in knowledge of procedure and the law that may exist between unrepresented and represented parties. It is not the case that any such obligation is limited to explaining matters of procedure.[22] The obligation extends to ensuring that any disadvantage flowing from a party's lack of legal representation does not result in unfairness.
It has been said that the responsibility of the lawyer, may, in an appropriate case, require those appearing for the represented party to draw attention to matters that might reasonably bear upon the court's decision which, in a case where all parties were represented, could be expected to be referred to by the opposing practitioners.[23] That is said to be so because '[i]t is only the parties, and not the Court, who know the facts which do or could bear upon the Court's decision and deliberation'.[24] All the more so, of course, where the lawyer acts for a party with model litigant obligations.[25]
Also, I suggest, a lawyer appearing in a matter involving a litigant in person must be especially conscious of the need to ensure that the court is not being misled because of the likely compromised ability of the unrepresented party to refer to relevant authorities, facts and arguments. In this regard, I would echo the comments and sentiment of Pagone J in Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc (No 2) [2011] VSC 153 at [14] that:
… In most cases where such a task is undertaken by legal practitioners for a represented litigant it will benefit, rather than harm, the case of the party for whom the practitioners appear since it will provide a more secure foundation for what is sought by ensuring that what will have been relied upon will to some extent, have been 'tested'.
One example where this duty is particularly apparent is in circumstances where a practitioner brings an interlocutory application for summary judgment or dismissal of a litigant in person's substantive claim. The Full Court of the Federal Court has made the following statements in this context:[26]
… The existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts. Section 31A of the [Federal Court of Australia Act 1976 (Cth)] is concerned with the summary disposition of proceedings. The Court must come to a view about the prospect of the proceedings and look beyond deficient pleadings unless the deficiency is incurable: see Spencer v Commonwealth (2010) 241 CLR 118 at [22]-[23] per French CJ and Gummow J.
In our view, the proper observance of the represented party's duty to the Court encompasses telling the Court what may be the weaknesses of their summary judgment or summary dismissal application as well as making the case for it. To use an old expression, if summary judgment is claimed, it must be a 'clean kill'. Otherwise, justice demands that the issues raised by the litigant in person's application be tried.
(emphasis added)
These things must be done whilst ensuring that the litigant in person does not form the false impression that the lawyer is also acting for them in some way.[27]
Finally, a litigant who appears in person is owed the same courtesy as your colleagues.[28] The significant role you play in the way a litigant in person may view the justice system should not be underestimated. When communicating with a litigant in person you effectively become, or may be viewed, as the face of the law for that individual at that moment in time. This obligation both stems from and emphasises the 'public perception and confidence dimension'[29] of the paramount duty, in the sense that your behaviour reflects on the administration of justice as a whole.
Having said those things, I need to say something about what appears to me to be a rather strange conduct rule for barristers practising in the uniform jurisdictions. It is expressed in the following terms:[30]
A barrister must not confer with or deal directly with any party who is unrepresented unless the party has signified willingness to that course.
One problem with the rule is that it seems to suggest that it might be appropriate for a litigant in person not to speak to the barrister appearing for another party.
In the Federal Court, as in most other superior courts, there is an express statutory obligation upon parties to a civil proceeding to conduct proceedings in a way that is consistent with their just and efficient determination at a cost that is proportionate to the importance and complexity of the matters in dispute.[31] This will require conferral about how the case is to progress. Litigants in person are expected to confer. They cannot cut themselves off.
In many instances, it will be appropriate for those communications to take place between the solicitor and the litigant in person. But it will also be necessary for cordial communications as to the conduct of the proceedings to take place with counsel.
Another problem with the rule is the possibility that it might be thought to justify a barrister in choosing not to speak to a litigant in person.
Modern approaches to procedure and case management proceed on the basis that barristers (and their instructors) have an affirmative duty to engage with opposing parties. That must extend to litigants in person.
A final problem is that the rule appears to cut across the professional responsibilities to explain relevant aspects of the process to a litigant in person and to assist the court to discharge the duties that arise where a person is exercising their right to appear in person.
I take the rule to do no more than ensure that a barrister makes clear to a litigant in person their role and who they act for in the case. The barrister should also make sure that the person is not overborne in any way and has an opportunity to reflect upon and consider their options.
It seems to me that the responsibilities of barristers are well stated in the Litigants in Person: Guidelines for Lawyers in the United Kingdom. The guidelines were jointly prepared by the Bar Council (UK), the Chartered Institute of Legal Executives (UK) and the Law Society (UK) and read as follows:[32]
- If a barrister is contacted directly by a [litigant in person], the barrister's clerk or the barrister themselves should let the [litigant in person] know whether it is appropriate for the [litigant in person] to speak with the barrister or the solicitor. This situation will have to be managed on a case by case basis, as direct communication may be required by the barrister's duty to the court, or professional courtesy.
- Barristers must still exercise their professional independence about this issue and have regard to the best interests of their client. For example, if the purpose of the discussion is related to the conduct of the litigation, referral to the instructing solicitor (or the client in a public access case) would be appropriate. If the communication is related to the barrister's role as advocate, the barrister would be entitled to refer the communication to the solicitor (or client), but it may be appropriate for the barrister to communicate with the [litigant in person] directly, particularly if the issues are matters that ordinarily would be discussed between barristers.
(emphasis added)
In my view, the rule to which I have referred could not be seen as a basis upon which a barrister might refrain from seeking to confer with a litigant in person and taking the steps I have outlined as forming part of the professional responsibilities of any lawyer dealing with a litigant in person.
Finally on this topic, lawyers should consider how they can best facilitate the efficient administration of justice in matters involving litigants in person. Practically, this might include:[33]
- offering to prepare the court book;
- providing the litigant in person with a copy of key authorities and any orders that will be sought in sufficient time to allow them to consider these documents in advance of the hearing;
- avoiding taking steps which burden the litigant in person with unnecessary material or add to time pressures; and
- confirming any oral communications in writing so there is no misunderstanding and so the litigant in person can refer back to what has previously been said.
Litigants in person are becoming more common. They can often find it difficult to understand the nature of the court process. The due administration of justice depends upon appropriate dealings by lawyers with litigants in person. It is important for lawyers to have a clear understanding of their own responsibilities when it comes to those dealings.
Concluding remarks
In conclusion, may I return to my more general theme. If we as lawyers and judges abandon or limit our engagement with what the administration of justice should be like we tend to make the law work to the advantage of the vested interests of individual clients in the status quo and facilitate the exploitation of its advantages for them. As I have sought to explain, that is not the approach of an ethical lawyer. Instead, to be an ethical lawyer is to be guided at all times by your own considered and informed view as to what the due administration of justice requires.
[1] I gratefully acknowledge the assistance of my research associate Sophia Stannard in undertaking research for this paper.
[2] See my paper prepared for the Western Australian Bar Association Spring CPD in 2020: Virtue, Honour and Ethics: Problems with a Deontological Perspective on Ethical Responsibilities of Lawyers.
[3] See Giannarelli v Wraith (1988) 165 CLR 543 at 556 (Mason CJ); see also D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [26] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[4] See also Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at [218] (Murphy and Colvin JJ).
[5] See Dal Pont GE, Lawyers' Professional Responsibility (8th ed, Lawbook Co., 2021) at 579 and the authorities cited therein.
[6] Dyczynski at [220] (Murphy and Colvin JJ).
[7] Legal Profession Uniform Conduct (Barristers) Rules 2015 (WA) r 42 (Barristers' Rules WA); Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) r 17.1 (Solicitors' Rules WA); Morgan v The State of Western Australia [No 2] [2019] WASCA 185 at [217] (Buss P, Mazza and Mitchell JJA).
[8] See, for example, Anscombe GEM, 'Modern Moral Philosophy' (1958) 33(124) Philosophy 1 at 5-6.
[9] Ipp DA, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63 at 65; see also Martin K, 'Between the Devil and the Deep Blue Sea: Conflict Between the Duty to the Client and Duty to the Court' (speech, Bar Association of Queensland Annual Conference, 4 March 2012). Regarding the proposition that the duty changes over time see also Stobbs N, 'Duty to the Court and the Administration of Justice: Some Examples, Implications and Clarifications' (2014) 123 Precedent 16 at 2.
[10] [2011] NSWCA 375 ('Hamod').
[11] Ibid at [309] (Beazley JA, Giles and Whealy JJA agreeing) citing R v Zorad (1990) 19 NSWLR 91 at 94-95 (Hunt, Enderby and Sharpe JJ).
[12] See R v Zorad at 94-95 (Hunt, Enderby and Sharpe JJ) cited in Hamod at [309] (Beazley JA, Giles and Whealy JJA agreeing); see also Cachia v Hanes (1994) 179 CLR 403 at 415 (Mason CJ, Brennan J, Deane J, Dawson J and McHugh J).
[13] See Dietrich v R (1992) 177 CLR 292 at 299-300 (Mason CJ and McHugh J).
[14] See Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [42] (McColl and Gleeson JJA, Sackville AJA).
[15] Platcher v Joseph [2004] FCAFC 68 at [105] (Tamberlin and Emmett JJ, Weinberg J agreeing at [138]).
[16] See also Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [51] (Bell J) where some of these duties were relevant to the circumstances of the case and neglected by the primary judge.
[17] See especially MacPherson v The Queen (1981) 147 CLR 512 at 534 (Mason J) cited in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 at [51] (Markovic, Derrington and Anastassiou JJ).
[18] See Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 at [105]-[108] (Rangiah, Charlesworth and Banks-Smith JJ); Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [35]-[37] (Handley JA, Tobias J agreeing).
[19] Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, 16 June 1986) at 27 (Samuels JA); Minoguev Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [29] (Sackville, North and Kenny JJ).
[20] Hamod at [312] (Beazley JA, Giles and Whealy JJA agreeing); see also McWinney v Melbourne Health [2011] VSCA 22; (2011) 31 VR 285 at [26] (Neave, Redlich and Mandie JJA).
[21] Adverse costs orders have been ordered against litigants in person: see, for example, Thomas v University of Melbourne (No 5) [2020] FCA 534 at [36] (Wheelahan J); Pekar v Holden (No 2) [2021] FCA 343 at [8] (Snaden J) (indemnity costs order, though I note his Honour's comments at [5] that the Court is 'more reluctant to make orders for indemnity costs against litigants in person').
[22] In the context of the court's duty see Tomasevic at [130]-[132] (Bell J).
[23] Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc (No 2) [2011] VSC 153 at [14] (Pagone J).
[24] Ibid.
[25] Ibid; Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [42] (Macfarlan JA, Tobias JA and Sackville AJA agreeing).
[26] Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226; (2017) 258 FCR 575 at [72]-[73] (Logan, Kerr and Farrell J). See also Calabro v State of Western Australia [2012] WASC 418 at [32] (Beech J), Morton v Vouris (1996) 21 ACSR 497 at 513-514 (Sackville J) and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537 (Kirby P).
[27] Dal Pont (2021) at 759.
[28] Ibid; see also Solicitors' Rules WA r 4.1.2: 'to be honest and courteous in all dealings in the course of legal practice'.
[29] Stobbs (2014) at 3.
[30] Barristers' Rules WA r 52. The same wording appears in r 53 of the Legal Profession in Uniform Conduct (Barristers) Rules 2015 (NSW) (also operating in Victoria), the Bar Association of Queensland Barristers' Conduct Rules (27 September 2024) (Qld) and the South Australian Legal Practitioners Conduct Rules (Part B) (SA) (numbering consistent with the Uniform Barristers' Conduct Rules while maintaining the South Australian version of the National Rules). Cf Barristers' Conduct Rules (November 2020) (NT) r 55(a); Legal Profession (Barristers) Rules(March 2021) (ACT) r 55(a).
[31] See Federal Court of Australia Act 1976 (Cth) s 37M, s 37N; see also Rules of the Supreme Court 1971 (WA) O 1 r 4A, O 1 r 4B.
[32] The Law Society (UK) June 2015, Litigants in Person: Guidelines for Lawyers https://www.lawsociety.org.uk/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers viewed 2 April 2025.
[33] See also The Law Society of New South Wales, Guidelines for Dealing with Self-Represented Parties in Civil Proceedings (December 2016) at para 2.6; Garrett E, 'The Impact of Self-represented Litigants on the Administration of Justice in the Federal Court of Australia' (2020) 9(1) Journal of Civil Litigation and Practice 34 at 39 citing Spencer v Commonwealth [2015] FCA 754; (2015) 328 ALR 16 at [49] (Mortimer J, as the Chief Justice then was) in which her Honour 'ordered the Commonwealth to prepare, file and serve the court book including the agreed tender bundle in electronic form, as well as serving a hard copy on Mr Spencer'.
