20 February 2019
I have had a busy start to this year, which is to be expected, but thankfully a lot of that busyness has been related to very positive events. I have been very pleased to have cause to welcome a number of new members to our judiciary (and look to welcome many more before the end of my term, hopefully including a good number from the diverse and competent ranks of Queensland’s solicitors).
I have also managed to ring in the New Year twice since the start of February, by attending New Year Profession Drinks in both Brisbane and the Gold Coast, despite that involving eating fine food and drinking fine wine. Don’t thank me for my dedication, the job is my reward…
Seriously, the most pleasant part about all of those events is the chance to talk to and catch up with QLS members and find out how you all are going, and what we can do to make your world better. That opportunity to engage directly with members is easily the best thing about this esteemed office, and I intend to make the most of it. So please, if you see me out and about, come up and say hello, and let me know what is on your mind; that’s why I am there!
Of course, it isn’t all wine and hors d'oeuvres, and our profession was faced with yet another challenge recently with the infamous ‘Lawyer X’ matter, wherein a lawyer turned informant on her own client. It would seem that she wasn’t the only one, and worse is still to come.
If you have ever heard any of our ethics team give a presentation, you will know that the duties of confidentiality and acting in the client’s best interests are central to the role we hold. Our clients need to be confident that they can be full and frank with us without their words going beyond our ears. That isn’t just important to them; it is important to the whole justice system.
Newly appointed Royal Commissioner (and former President of the Queensland Court of Appeal) Margaret McMurdo recently reminded the profession that violating that confidence has the potential to undermine the criminal justice system and the public's confidence in it. The commissioner noted:
"The law requires lawyers to keep clients' confidences, act in the clients' best interest and disclose and avoid any potential or actual conflict of interest. Lawyers also have critical, ethical obligations to the court and the administration of justice, centred on competence, honesty and independence. Clients must be able to speak frankly to the lawyers preparing their court cases, knowing their communications remain confidential."
Many matters have been shortened or ended in pleas — sparing victims from testifying, saving time and money and allowed perpetrators to begin the long road to rehabilitation as soon as possible — because those frank discussions take place. If they stop, so do the wheels of justice. For that reason, lawyers everywhere have rightly condemned the actions of Lawyer X, and there is no question that we must thoroughly reject the idea that a lawyer can inform on their own clients.
However, we should also be wary of over-reaction, and resist the temptation to pile on here. I note some have called for all names of informant lawyers to be released, one presumes to allow action against them and other consequences; but I would counsel caution, because criminal law is an easy game from the sidelines — quite different in the arena.
Whatever has led to this pass, I think we can all assume that Lawyer X was in a bad frame of mind when this all began, and that will surprise no-one. She would be far from the first criminal lawyer to struggle with the details of their clients’ world, or to be overcome by the horrific reality of the darker corners of our society. Many of our colleagues have suffered PTSD, and not all have recognised it and sought treatment.
We well know that depression stalks our profession like a hungry wolf on a cold winter’s night, so let’s not go overboard; the focus should be on preventing another occurrence, not on exacting righteous vengeance on the guilty. We need to grant the same understanding to our colleagues that we demand for our clients. Maybe there were things we could have done to prevent this — if so, let’s make sure we find out what they are and work on prevention rather than cure.
I can advise members that I have personally sought assurances from the Queensland Police Service and Crime and Corruption Commission that this practice is not, and will not be, followed in Queensland. I am pleased to report that they have confirmed it is neither practice nor policy in this state; we do stand reminded, however, that the price of justice is unsleeping vigilance.
I will close on a happier note, and remind everyone that QLS Symposium, and the Legal Profession Dinner and Awards, are fast approaching. These events represent a great chance to improve your skill-set and get better outcomes for clients, while catching up with colleagues and being reminded that, despite the odd dark time and being a favourite whipping horse for the media, our profession is a noble one practised overwhelmingly by very good people. Don’t miss the chance to hang out with some of them!
Bill Potts, QLS President
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