No.19 Government Lawyers: Independence and Privilege

1. Introduction

1.1 Who should read this Guidance Statement?

This Guidance Statement is primarily for heads of government legal departments / leaders of government legal teams, although it is also relevant to government lawyers, government legal officers, and government policy lawyers. In addition, it will be of assistance to employees of Federal, state and local governments or quasi-government bodies who hold practising certificates, are admitted as officers of the court or who are employed in legal / quasi-legal roles.

1.2 What is the issue?

Lawyers employed by government and quasi-government organisations often find themselves in roles which mix legal and non-legal work (such as governance and risk management), or have them reporting to non-lawyers and being asked to do nontraditional legal roles. This can result in some confusion as to their rights and obligations, as well as conflict between their duty to their employers and their duty to the court. Government lawyers are bound by the same duties as lawyers in private practice, including the protection of client legal privilege. The structure of some government teams may inadvertently create a potential risk to both privilege and independence.

1.3 Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (QLS) Ethics and Practice Centre for the use and benefit of solicitors.This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission. This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct. This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee, following consultation with the QLS Government Lawyers Committee.

2. Background

Lawyers who fall within the definition of government legal officers (Legal Profession Act 2007 (Qld) s 12) are not required to hold practising certificates in order to provide legal services to the organisations which employ them.

However, the absence of a practising certificate does not release an admitted solicitor or barrister from their duties as officers of the court.

In addition, governments also deliver services through bespoke structures which do not conform to traditional ideas of government organisations (eg government-owned corporations, statutory corporations, commercial business units).

3. Ethical principles

Australian Solicitors Conduct Rules (ASCR)

Rule 4.1.4 provides:

4. Other fundamental duties

4.1 A solicitor must also:

4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;

4.1.2 be honest and courteous in all dealings in the course of legal practice;

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4 avoid any compromise to their integrity and professional independence; and

4.1.5 comply with these Rules and the law.

These duties are invoked by admission as a lawyer, and apply regardless of whether the lawyer is employed in private or government practice, and whether or not the lawyer holds a practising certificate. It is important to note that the duties are derived from the common law and have effect independent of the application of the Australian Solicitors Conduct Rules 2012 (Qld). 

Establishing independence is, in particular, crucial in the performance of legal services, and in claiming client legal privilege on behalf of a client.

4. Who is a government legal officer (government lawyer)?

A ‘government legal officer’ is defined by s 12 (1) of the Legal Profession Act 2007 (Qld) as: 

a person whose employment or appointment in any of the following includes or may include

engaging in legal practice—

  1. department of this jurisdiction, the commission, or an agency prescribed under a regulation;
  2. a department of government of the Commonwealth;
  3. a department of government of another jurisdiction;
  4. an agency of another jurisdiction if, under a corresponding law of that jurisdiction, a person engaging in legal practice for the agency is exempted from holding a practising certificate or otherwise does not require a practising certificate.


Section 5 of the Legal Profession Regulation 2017 (Qld) lists agencies for the purposes of this section and practitioners who consider themselves to be government lawyers should check that they fall within the bounds of the section. Practitioners employed as lawyers by government owned corporations under the Government Owned Corporations Act 1993 (Qld), local governments, authorities and councils should note that as at the time of writing, they do not fall within the definition of government lawyer and should hold practising certificates. Practitioners in these circumstances should refer to Guidance Statement No. 15 - In-house counsel - practising certificates.

5. Who is the client?

Government lawyers act for the organisation by which they are employed (or in the case of Crown Law, Legal Aid or the Australian Government Solicitor, for the clients of those organisations), and not for the employees or officers of that organisation. They are not permitted to provide legal services outside of the bounds of their employment; this means that they cannot act for fellow employees in any personal matter, even if no fees are charged, unless that fellow employee is also a client of their employer, as may occur in certain limited cases (see QLS Ethics Centre, ‘Admitted but not holding a current practising certificate – what can I sign and call myself?’ (2015))

6. Independence and privilege

Client legal privilege can be defined as a client’s right to prevent the disclosure of confidential communications with their lawyer. Crucial to the establishment of client legal privilege is the relationship between the parties; the relationship must be that of lawyer / client – a professional relationship which puts the lawyer in an independent position when giving advice. For government lawyers, that relationship must be established in spite of the fact that the lawyer in question is also an employee of the client. (See Waterford v Commonwealth (1987) 163 CLR 54

Client legal privilege belongs to, and is for the benefit of, the client alone. 

Independence is fundamental to the role of lawyers and the basis of the solicitor-client relationship. Maintaining of independence and avoidance of personal bias is a duty specifically applied via the Australian Solicitors Conduct Rules 2012 (Qld) rr 4, 17.

The duties and obligations of a lawyer arise from the common law and their special status as officers of the court. These duties and obligations are not affected by whether the lawyer has a practising certificate. 

As Lee J noted in Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649

A person admitted to a roll of practitioners and practising law under the authority under s 55D of the Judiciary Act remains bound to uphold the standards of conduct and observe the duties undertaken upon admission to the roll of practitioners maintained in the relevant Supreme Court of a State or Territory and may be subject to the disciplinary procedures of that court.

See also Section 7 of this Guidance Statement.

Dual roles 

Independence can become an issue for government lawyers, especially those who have both a legal and a non-legal role in their organisation, or who have a role which incorporates both legal and non-legal responsibilities. In such circumstances, it is important that there be a formal delineation between these roles and responsibilities, and government lawyers with multiple roles should ensure that it is clear which role they are discharging when undertaking particular tasks and interacting with colleagues, clients and stakeholders.

A government lawyer may be unable to claim privilege on behalf of a client for communications if they were made in circumstances where the government lawyer’s independence was compromised or unclear. It should also be kept in mind that on questions of privilege, the courts have distinguished legal work done by lawyers and other work done by lawyers; privilege will not automatically attach to work simply because a qualified and admitted practitioner performs the work (Gaynor King [2018] FWC 6006) and government lawyers should ensure their instructing officers are clear on the distinction prior to performing work.

7. Maintaining this independence and privilege

7.1 Practising certificate

Although at this point there is no precedent holding that possession of a practising certificate is a prerequisite for establishing privilege, it is clear that it will be a persuasive factor in determining whether a government lawyer is sufficiently independent.  

See (Waterford v Commonwealth (1987) 163 CLR 54, 81-2 (Deane J); Philip Morris Ltd and Prime Minister [2011] AATA 556, [74]. But see Aquila Coal Pty v Bowen Central Coat Pty Ltd [2013] QSC 82, [22] (Boddice J), (privilege applied where in-house lawyers of a party were not admitted in Australia) and [25] (privilege may apply ‘even where the client erroneously believed the legal adviser was entitled to give the advice’); Commonwealth & Air Marshal McCormack in his capacity as Chief of Air Force v Vance [2005] ACTCA 35, [21] (a practising certificate reinforces obligations owed to the court, but the absence of one does not necessarily equate to a lack of independence). 

Supervision

While the required degree of independence has been found in circumstances where an employed government lawyer is supervised by the holder of a practising certificate, rather than actually holding a practising certificate themselves, caution is urged. A challenge to independence (and thus privilege) in such circumstances may be successful unless a system of adequate supervision is in place – a risk which will be reduced if all lawyers hold practising certificates.

Government legal teams should therefore consider ensuring that all lawyers employed in the team hold practising certificates to remove any doubt about the relationship.

7.2 Employment terms

Fundamental to the relationship between an employed lawyer and their employer are the terms establishing that relationship (such as a position description, appointment letter or contract); ensuring that independence is specifically identified as fundamental to the relationship is essential. In particular, clauses which specify that the lawyer is obligated to provide full, frank and fearless advice; cannot be punished for providing that advice; and cannot be directed to change that advice, will fortify the lawyer’s independence and any subsequent claims to privilege.

7.3 Position description

Similarly, position descriptions should also be tailored to reflect the independence of the employed lawyer, especially in circumstances where lawyers are in an award-based pay scheme and may not have a detailed contract with the employing organisation. Position descriptions will also need to be very specific if a lawyer is tasked with undertaking both legal and non-legal work.

7.4 Legal team structure

The structure of a government legal team should reflect the independence of the team and its members. Preferably, the head of the legal team should be a member of the executive management of the organisation. In addition, it is strongly recommended to employers of government lawyers that the head of the legal team be an admitted lawyer who holds a practising certificate. If this is not the case, it may be difficult for the organisation or its clients to establish sufficient independence on the part of the lawyer to support a claim of privilege for advice given or work done by the team (see Independence and privilege and Maintaining this independence and privilege sections of this Guidance Statement).

The protection of the organisation’s privilege is one of the duties owed by the legal team. Given that individual government lawyers do not have a personal obligation to hold a practising certificate to perform their roles, heads of legal departments / teams should give consideration to the provision of practising certificates in order to discharge this duty.

Reporting structures are also important to establishing independence, and it is preferable that the head of legal report only to the most senior executives in the organisation. If possible, legal teams / departments should report directly to the head of the organisation, to protect the independent nature of their role and minimise any potential interference with that independence.

7.5 Policies and procedures

Policies and procedures affecting the legal team should also reflect the independence of that team. These should clearly reflect the conduct rules (Australian Solicitor Conduct Rules 2012 (Qld)) and invoke the fundamental duties – such as to the administration of justice, honesty, courtesy, and independence – unequivocally.

Given that government lawyers can come from private firms which practise in the area of work in which the government organisation is involved, procedure around conflict should be clear.

Specific procedures should also be in place for occasions on which instructing officers or their managers contest the advice or course of action provided by the lawyer. Internal procedures should also expressly provide that a lawyer cannot be forced to take a course of action which they have advised is unlawful or unethical and this is particularly important if the organisation is involved in regulatory court proceedings such as disciplinary action or prosecution.

7.6 Memberships

Membership of Queensland Law Society (‘QLS’) or Bar Association of Queensland (‘BAQ’) may also assist in establishing independence for government lawyers. These associations retain some regulatory authority, especially in the issuing or withdrawing of practising certificates. The need to remain fit and proper to hold a practising certificate, or indeed to retain membership with QLS or BAQ, also invokes the duties of lawyers and emphasises the need for independent reflection and forensic judgements when providing legal services.

8. More information

Solicitors are also referred to the Queensland Law Society, Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014). While the Australian Solicitor Conduct Rules themselves may not apply to government lawyers, the case law and analysis of the duties behind the rules, contained within the Commentary, provide expert practical guidance. 

In addition, government lawyers are subject to a range of statutory obligations specific to the public sector that may intersect with their obligations as legal practitioners, including the Model Litigant Principles. They should ensure that they have a sound knowledge and understanding of  their statutory duties. Government lawyers with an interest in Pro Bono work are referred to the Australian Pro Bono Resource Centre publication Pro Bono Law – A Guide for Government Australian Lawyers

For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor at QLS Solicitor Support Pty Ltd (QLS Ethics and Practice Centre) on 07-3842 5843 or ethics@qls.com.au