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Western Australian Student Law Review |
THE LAWYER: BETWEEN A PROFIT AND A GOOD DEED
LILLIAN ROBB[*]
Access to Justice—Legal Professional Ethics—Pro Bono—Commercialisation—Public Good—Impecunious Clients—Duty to the Court—Administration of Justice—Unrepresented Litigants
A lawyer has no obligation to take on or continue to act for a client who cannot pay their fees. A lawyer’s fiduciary obligation to act in the best interests of their client is subject to their contractual right to be paid for the work they perform. Despite this, lawyers have professional obligations to the court and the administration of justice, and obligations that are part of being members of a profession. These two sets of obligations shape the practice of those in the legal profession and impart an obligation to serve the public good through the administration of pro bono work. This article bears the title ‘Between a Profit and a Good Deed’ to reflect the common adage ‘between a rock and a hard place’, which denotes a situation in which there exist two undesirable outcomes. It is argued that despite the reality that the practice law is, and has been for some time, a commercial pursuit, commerciality should be balanced with service to the public through pro bono work in ethical practice.
This article will examine the ethical obligation of lawyers to provide pro bono services where doing so is contrary to a lawyer’s commercial interests or the commercial interests of a firm. Where a client is unable to pay a lawyer for services, the lawyer is entitled to act in their commercial interests by refusing to represent the client. In so doing, the lawyer is putting their commercial interests before their fundamental duty to the client. This article will critically examine this position in light of the contemporary concern about increasing commercialisation in legal practice. The lawyer has fundamental duties both to the court and the administration of justice by virtue of being a member of a profession. This article argues that these obligations require lawyers, to an extent, to put their commercial interests aside and provide services without pay. To achieve this, this article will highlight the competing obligations of lawyers and conclude that the ethical lawyer must balance the commerciality of their practice with the pursuit of the public good.
To explore the ethical obligations of a lawyer, this article will begin with a hypothetical scenario. A lawyer is approached by a person seeking legal advice. They sit down to discuss that person’s options. Let us say that this person is a protection visa applicant whose application has been refused and whose appeal will be heard in the Federal Court of Australia. This person has come to this lawyer because they have been unable to access legal aid or free legal assistance elsewhere. The lawyer is aware that this case relies upon the successful demonstration of jurisdiction error, a fairly challenging area of the law that would be difficult to argue without legal assistance. However, the person does not have sufficient funds to pay. The result of not representing the prospective client would be that they approach the Federal Court as a self-represented litigant and attempt this argument alone.
In some states, the fiduciary relationship with a prospective client begins when a prospective client comes to discuss the prospect of an engagement, that is, far before a retainer is ever entered into.[1] In Western Australia, the duty to not allow a client’s interests to conflict with those of the lawyer arises as soon as a potential client shares information in confidence, whether the lawyer is formally retained or not.[2] This means that the lawyer has an obligation to put the interests of the client ahead of their own.
This puts the lawyer in a somewhat difficult position, between the interests of the client or potential client and their own commercial interests. Ericson summarised this tension aptly when he used the example of a stove salesperson.[3] If a stove salesperson is selling a gas stove, they would have no obligation to inform the buyer that they would be better off purchasing an electric stove or not buying a stove at all. So long as the salesperson tells no lies and is truthful in answering questions, they may lawfully sell that stove.[4] However, if the lawyer comes to believe that the client would be better off not hiring them, or not taking legal action, or representing themselves, then they have an obligation to inform them of this.[5] This action is, of course, inconsistent with the commercial interests of the lawyer.
In the hypothetical given above, it is in the interests of the client to have legal representation. Despite this, the lawyer is completely within their rights to decide not to take on the case. This is the position despite the lawyer’s fiduciary obligation to act in the best interests of their client.[6] Even after a retainer is entered into, a lawyer may legitimately cease to serve the client’s interests where the client is unable to pay pursuant to the retainer.[7] The Legal Profession Conduct Rules 2010 (WA) (‘Legal Profession Conduct Rules’) call on the lawyer to advise the client that they can seek legal aid and to assist them to complete their legal aid application.[8] Neither equity or the Legal Profession Conduct Rules compel the lawyer to continue to act.
The example above, in which a lawyer does not provide services to a client who cannot pay, can be understood as an expression of the relationship between equity and contract law. Although it would be in the client’s interests for the lawyer to continue to act, it is also a likely term of the retainer that the client must pay for the work performed. Even where there is no such express term in the retainer, the right of the lawyer to be paid will be an implied term.[9] As such, the right to be paid is part of a contractual arrangement. Equity only acts to supplement the common law, but does not act as a self-sufficient legal system on its own.[10] It will not act to alter the common law unless the result would be unconscionable. As such, the equitable fiduciary duty can be overridden by a contractual term that is inconsistent with the existence of such a duty. Where a retainer agreement is breached through the client’s failure to pay the lawyer, equity will not step in to alter the contractual terms in play.[11]
This position is tempered by the common law rule that a retainer agreement must be fair and reasonable.[12] In Western Australia, this rule is codified in statute. The Legal Profession Act 2008 (WA) (‘Legal Profession Act’) requires that the retainer be fair and reasonable,[13] and codifies the Supreme Court of Western Australia’s right to set aside a costs agreement if it forms the view that the agreement is not fair or reasonable.[14]
In Western Australia, the commercial interests of the lawyer are restrained where a lawyer’s fees are not fair and reasonable. Additionally, where a lawyer ceases to act for a client who cannot pay, the Legal Professional Conduct Rules require that they aid them to obtain access to Legal Aid. However, beyond this, the fiduciary obligation to the client or potential client gives way to the contractual rights of the lawyer. The Legal Profession Conduct Rules and the fiduciary obligation that the lawyers owe to the client do not require a lawyer to act for a client who cannot pay.
The conclusion that a lawyer has no obligation to take on clients who cannot pay must be looked at in the context of the attitudes that surround lawyers and their commercial interests. The practice of law has constituted, in some form, a commercial pursuit since its inception as a profession.[15] However, this aspect of the law has often been subject to criticism, particularly in modern times. Currently, there is a great deal of concern surrounding the commercialisation of the practice of law and central to that concern is the conflict between profit and professional ethics.[16]
This is a concern that has been explored by some of the greatest judicial minds in Australia. Sir Daryl Dawson has expressed concern over a shift in the legal profession away from ‘trustee professionalism’ in which knowledge is used to serve the client, and ‘expert professionalism’ which involves the marketing of expertise, rendering law a solely commercial pursuit.[17] He refers to a scathing review of the legal profession written by the Dean of the Yale Law School, Professor Kronman, whose work places particular blame on the prevalence of the ‘mega firm’.[18] The ‘mega firm’, says Kronman, is a threat to public service and in turn the concept of professionalism, by making law about business rather than the core values of professionalism.[19] Bathurst CJ, writing extra-curially, shares this concern about ‘mega firms’ in which the lawyers never interact with a client and see a matter through, but are instead motivated by the need to bill as much as possible.[20]
One of the most interesting responses to the criticisms of commercialisation of the legal profession for the purposes of this article is put forward by the Hon Michael Kirby, writing extra-curially, who responds to these papers by emphasising Australian lawyers who are ‘fine leaders of the profession who daily accept the call to pro bono work’.[21] By so doing, Kirby equates professionalism with the performance of pro bono work by Australian lawyers, and uses this to counter the criticism that the profession is becoming too commercialised.
In light of these criticisms of the legal profession, it is an opportune time to explore the obligations that a lawyer owes to the community and to access to justice. The lawyer’s duty to the court and the administration of justice and the lawyer’s obligations as a member of a profession can both be applied to the example above. These two obligations add further considerations that may alter or shift the basic obligations of a lawyer in the example scenario. This article examines the position put forward by Kirby by considering the question of whether the duties of lawyers obligate them to provide services pro bono where there is an access to justice issue at stake.
The lawyer’s paramount duty is to the court and the administration of justice.[22] This is contained in three distinct conduct rules and is the first substantive rule in the Legal Profession Conduct Rules.[23] It is clearly stated that this duty is paramount to the exclusion of all other obligations.[24] In the example above, where the lawyer decides not to take on the case of a client who cannot pay, the client may proceed to court as an unrepresented litigant to argue their case without the assistance of a lawyer. In this situation a connection can be made between the provision of pro bono services and the lawyer’s duty to the court and the administration of justice. This arises because unrepresented litigants can have a toll on the operation of the court and on the administration of justice more broadly. A lawyer may lessen this toll and serve their duties to the court and administration of justice by representing, pro bono, those litigants and reducing the numbers of unrepresented litigants.
The obligation to serve the court and the administration of justice incorporates an obligation to see that a matter is resolved in a prompt and efficient manner[25] as a way of ensuring that limited court resources are used efficiently.[26] This obligation is also reiterated in various specific rules in the Legal Profession Conduct Rules.[27] Currently, one of the issues reducing the efficiency of courts is the increasing number of unrepresented litigants.[28] These individuals have often been unable to afford representation or access legal aid and community legal centres due to the limited capacity of those organisations.[29] Matters involving at least one self-represented litigant can be more challenging to manage,[30] requiring court staff to commit additional hours of court time compared to other cases.[31] This becomes a particular issue where a large group of people are unable to find effective representation. Their cases then tax more court resources, reducing access to courts by increasing wait times and trial lengths as court staff spend more time assisting litigants to get their matters to trial.
The lawyer’s duty to the administration of justice extends to an obligation to do justice according to the law, by doing what they can to ensure that the law is applied correctly to the case.[32] This duty is a part of the lawyer’s position as an officer of the court.[33] In this respect, Kitto J has commented that the barrister’s task involves ‘endeavouring to make successful the service of the law in the community’.[34]
In the context of the current state of the legal system, lawyers are crucial in achieving universal access to justice, as they remain the main conduit between the citizen and the courts.[35] The failure to allow access to justice through a failure in the availability of legal assistance can result in cases vulnerable to miscarriages of justice.[36] In an adversarial system, a litigant carries a great burden in relation to the bringing of their case, and as such, any party without a lawyer may find themselves at a serious disadvantage.[37] This is evident in cases of unrepresented litigants where, despite the best efforts of court staff and policymakers, the inexperience of the self-represented litigant can lead to factual matters that would change the course of the case not being revealed where the litigant has not understood their relevance.[38] Many self-represented litigants are also not able to appreciate or identify the basic points of law that require argument to ensure that they do justice to their own case.[39]
In New South Wales, this issue is partly addressed through the imposition of a higher standard of ethics required of lawyers who are present in cases involving self-represented litigants.[40] To some extent, those standards are also present in Western Australia, in that a lawyer has a duty to disclose information vital to their opponent’s case to ensure that all relevant information is before the court.[41] The obligation is extended in the cases of self-represented litigants to include mitigating factors if that lawyer is a prosecutor and therefore a model litigant.[42] However, this issue can also be addressed through an increase in the provision of pro bono legal advice to minimise cases of self-represented litigation in the court system.
These two aspects of the lawyer’s obligations to the court do not specifically call for the provision of pro bono legal assistance. However, in both cases the obligation already imposed, if extended, would be served by offering pro bono work. The Parliament of Australia Senate Standing Committee on Legal and Constitutional Affairs has previously recommended that an increased use of pro bono assistance would minimise the numbers of self-represented litigants.[43] The ethical principles under which lawyers operate are a manifestation of the minimum required service to the community.[44] While not a strict obligation, this recommendation is persuasive in that it suggests that an ethical lawyer would seek to address this issue in their practice, despite their commercial interests.
The law has been recognised as a profession since the mid-thirteenth century. The law developed its character as a body of coherent discipline with formalised training and examinations, a body to qualify practitioners, and courts with complex procedures requiring expert knowledge.[45] As a profession, lawyers have the opportunity to practice in a monopoly and to self-regulate. Lawyers also have an obligation to serve the public as part of that professional status. The public service element has been described as one of the core distinguishing features of a profession,[46] and as the factor that distinguishes ‘between professionalism and commercialism’.[47]
The argument that lawyers owe an obligation to public service through pro bono services can be reasoned as follows. The structure of law as a monopoly means that lawyers are the sole group qualified to deliver legal services.[48] As such, the profession has the obligation to uphold the fundamentals on which our legal system is based.[49] The most basic and most fundamental tenant of our system of justice is equality before the law.[50] Australia has chosen to adopt an adversarial system.[51] If this system fails in the common course of events, then the justice system does not operate the way it was designed, and the profession has failed in its duty to administer justice.[52]
The adversarial system places two parties on opposite sides of a case with the rationale that a fair result will emerge through a fair fight. As noted above, the adversarial system requires broad equality between litigants.[53] This is particularly acute where one party is legally represented and another is not, creating significant inequality before the law.[54] Equality between the parties also supports the system by allowing the court to have access to all the law and facts relevant to both parties in any given matter which ensures that judges are fully informed of the cases before them.[55] This argument leads to the conclusion that lawyers should play a part in fostering the availability of legal services to those who cannot otherwise access justice.[56] This places on lawyers a further layer of obligations to ensure individuals are represented through providing pro bono services.
This conclusion is evidenced by the push within the legal profession for mandatory pro bono work as a way of maintaining credibility in the argument for self-regulation.[57] It has been suggested that a failure of the profession to regulate itself by ensuring that the professional ideal is upheld would result in the loss of the profession’s right to regulate themselves, which should be put into the hands of the government to ensure continued delivery of a professional legal service.[58] The Australian Law Reform Commission looked at the imposition of mandatory pro bono work targets but concluded that mandatory requirements might sour the professional goodwill to complete pro bono work and support the justice system.[59] Despite this, however, the Commission felt it necessary to emphasise the service ideals which characterise the legal professional ideal.[60] In reaching this decision, the Commission stated ‘[n]evertheless, in a world which sees lawyers in less charitable lights and where financial and professional imperatives of practice are increasingly demanding, it is appropriate to emphasise the service ideals which characterise the legal professional ideal’.[61]
This article does not seek to argue that the practice of law requires a lawyer to serve the public at the expense of their commercial interests. The argument is simply that a lawyer has an obligation beyond their commercial interest to serve the public administration of justice and their profession and that this must be balanced against their commercial interests. To decide that the law is primarily a commercial endeavour risks the corrosion of the practice of law as a profession and a potential failure of the legal profession to serve their fundamental ethical obligations. However, it is impossible to deny the commercial aspects of practice in which a lawyer must ultimately make a living. It is not a helpful conclusion for anyone who lives with the very real commercial reality of practice to say that doing so may conflict with their ethical obligations. This is an unrealistic ideal that no lawyer is fully empowered to realise. However, putting forward the argument is a worthwhile endeavour. With increasing commercialisation in the legal profession, whether real or perceived, these arguments remind practitioners of the challenges inherent in their roles as lawyers,[62] and that providing pro bono assistance is a key tenet of ethical practice.
[*] Lillian is a final year law student at Murdoch University.
[1] McNamara Business & Property Law v Kasmeridis [2007] SASC 90; (2007) 97 SASR 129, 139–40 [37]–[39] (Doyle CJ).
[2] Legal Profession Conduct Rules 2010 (WA) r 15.
[3] Bill Ericson, ‘The Solicitor’s Four Hats: Reflections on Legal Ethics by a Costs Lawyer’ (Paper presented at the Law Society of South Australia, Adelaide, 24 July 2013) 2.
[4] Ibid.
[5] Ibid 3.
[6] Ibid 4; Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; Nocton v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932.
[8] Legal Profession Conduct Rules 2010 (WA) r 11.
[9] Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152, 155 (Pincus J).
[10] See, eg, Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41.
[12] Ibid 6.
[13] Legal Profession Act 2008 (WA) s 271.
[14] Ibid s 288.
[15] Tom Bathurst, ‘Commercialisation of Legal Practice: Conflict Ab initio; Conflict De Futuro’ (Paper presented at Commonwealth Law Association Regional Conference, Sydney, 21 April 2012) 2.
[16] Ibid 4.
[17] Sir Daryl Dawson, ‘The Legal Services Market’ (1996) 5 Journal of Judicial Administration 147, 148.
[18] Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993) 217–314.
[19] Dawson, above n 18, 148, citing Kronman, above n 18.
[21] Michael Kirby, ‘Billable Hours in a Noble Calling? Ethics and the Australian Legal Profession’ [1996] AltLawJl 103; (1996) 21(6) Alternative Law Journal 257, 260.
[22] Legal Profession Conduct Rules 2010 (WA) r 5; Australian Bar Association Barristers’ Conduct Rules 2010 (NSW) r 25; Australian Solicitors’ Conduct Rules 2011 r 3; Giannarelli v Wraith (1988) 165 CLR 543, 572 (Wilson J).
[23] Legal Profession Conduct Rules 2010 (WA) r 5.
[24] Ibid; Australian Bar Association Barristers’ Conduct Rules 2010 (NSW) r 25; Australian Solicitors’ Conduct Rules 2011 r 3.
[25] Chief Justice Marilyn Warren, ‘The Duty to the Court: The Overarching Purpose of Dispute Resolution in Australia’ (Speech delivered at the Bar Association of Queensland Annual Conference, Gold Coast, 6 March 2011) 4. See also Gianarelli v Wraith (1988) 165 CLR 543.
[26] A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208; (2009) 25 VR 189, 193–4 [15].
[27] Legal Profession Conduct Rules 2010 (WA) r 36; Australian Solicitors’ Conduct Rules 2011 r 21; Australian Bar Association Barristers Conduct Rules 2010 (Cth) r 60.
[28] Senate Legal and Constitutional References Committee, Parliament of Australia, Legal Aid and Access to Justice (2004) 181 [10.2]; Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 389 [5.152].
[29] Simon Rice, Selected Materials on Lawyers Justice & Ethics (Thomson Reuters, 2nd ed, 2015) 323.
[30] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 389 [5.152].
[31] Senate Legal and Constitutional References Committee, Parliament of Australia, Legal Aid and Access to Justice (2004) 189 [10.37].
[32] Re Gruzman; ex Parte Prothonotary (1968) 70 SR (NSW) 316 [323].
[33] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 298 (Kitto J); Giannarelli v Wraith (1988) 165 CLR 543, 556 (Mason CJ), 572 (Wilson J).
[34] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 298 (Kitto J).
[35] Chief Justice Marilyn Warren, ‘The Access to Justice Imperative: Rights, Rationalisation or Resolution?’ (Speech delivered at the Eleventh Fiat Justitia Lecture, Melbourne, 25 March 2014) 10.
[36] Access to Justice Taskforce, Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Commonwealth of Australia, 2009) 5.
[37] David Fagelson, ‘Rights and Duties: The Ethical Obligation to Serve the Poor’ (1999) 17(1) Law and Inequality: A Journal of Theory and Practice 171, 186.
[38] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Self Represented Litigants (2004) [10.44.]; Senate Legal and Constitutional References Committee, Parliament of Australia, Legal Aid and Access to Justice (2004) 190 [10.44].
[39] Senate Legal and Constitutional References Committee, Parliament of Australia, Legal Aid and Access to Justice (2004) 190 [10.44]
[40] Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 [42] (Macfarlan J, Tobias and Sackville JJ agreeing).
[41] D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1, 41 [111]–[112] (McHugh J).
[42] Legal Profession Conduct Rules 2010 (WA) r 44(12).
[43] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Self Represented Litigants (2004) [10.61].
[44] James Allsop, ‘Professionalism and Commercialism: Conflict or Harmony in Modern Legal Practice?’ (2010) 84 Australian Law Journal 765, 767.
[45] James Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians and Courts (University of Chicago Press, 2008) 489.
[46] Re Foster [1950] NSWStRp 2; (1950) 50 SR (NSW) 149, [151] (Street CJ).
[47] Sir Anthony Mason, ‘The Independence of the Bench’ (1993) 10 Australian Bar Review 1.
[48] Shepherd, ‘Pro Bono Work: The Wants and Wherefores’ (1991) 18 (Nov) Brief 11.
[49] David Fagelson, ‘Rights and Duties: The Ethical Obligation to Serve the Poor’ (1999) 17(1) Law and Inequality: A Journal of Theory and Practice 171, 184.
[50] Ibid 186.
[51] Ibid 185.
[52] Ibid 186.
[54] Ibid; Fagelson, above n 50, 171.
[55] Senate Legal and Constitutional References Committee, Parliament of Australia, Legal Aid and Access to Justice (2004) 191 [10.45].
[57] Ysaiah Ross, Ethics in Law: Lawyers' Responsibility and Accountability in Australia (LexisNexis, 6th ed, 2013) 102.
[59] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 311 [5.20] recommendation 37.
[60] Ibid.
[61] Ibid 37.
[62] Wallis Malcolm, ‘Some Thoughts on the Commercial Side of Practice’ (2012) 52 Advocate 33.
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