No.20 Employing immediate family members of judicial officers

Introduction

Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law firms. 

What is the issue? 

Where a law firm employs the immediate family member of a judicial officer of a jurisdiction in which solicitors of the firm regularly appear, this can give rise to potential ethical issues. 

This Guidance Statement seeks to provide some guidance on these issues and how these might be managed.  

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 the Guidance Statement and following the guidance 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 Ethics Committee of the QLS. 

Ethical principles

ASCR

Rules 3, 4, 5 and 12 provide:

  1. Paramount duty to the court and the administration of justice
    1. A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

  2. Other fundamental ethical duties
    1. A solicitor must also:

…

4.1.4 avoid any compromise to their integrity and professional independence;
and
4.1.5 comply with these Rules and the law. 

  1. Dishonest and disreputable conduct
    1. A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
      1. be prejudicial to, or diminish the public confidence in, the administration of justice;  or
      2. bring the profession into disrepute.

  1. Conflict concerning a solicitor's own interests 
    1. A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.

The above principles reflect the common law. 

Discussion

As officers of the court, solicitors play a vital role in the administration of justice, which should be both free from improper influence and perceived to be so. Solicitors’ related duties to act independently and to uphold the law, are also important considerations in this context. 

Where a law firm employs an immediate family (such as the spouse, partner or child) of a judicial officer of a court or tribunal care must be taken to avoid real or perceived conflicts and the appearance of impropriety, particularly in matters heard before a court or tribunal as constituted by that judicial officer.  

The perceptions that need to be guarded against include: 

  1. that the law firm is in a special position with, or able to obtain an improper advantage from, the court or judicial officer;
  2. that the law firm will favour a personal loyalty to the judicial officer over the interests of a client, should a conflict arise.


The same ethical considerations arise whether or not the issue is raised with the judicial officer during a matter. 

This Guidance Statement focuses on perception of bias and does not seek to provide guidance as to when actual bias might arise. 

If a law firm were to hire an immediate family member of a judicial officer for the actual, as opposed to perceived, reasons described above, this would of course be unlawful and a serious matter likely to amount to professional misconduct.

It is also appreciated that a law firm faced with a direct or indirect request by a judicial officer that the firm employ the judicial officer’s immediate family member (or indeed any individual), the law firm may feel that it has ‘no choice’. Guidance should be sought in that situation and care should be taken as, for the purposes of the criminal law, the firm or its partners or directors may still be liable even where they believed they were acting under a form of duress (this being because, for the purpose of avoiding criminal responsibility, the threshold for what constitutes duress is high).

Similarly, smaller firms may quite legitimately rely on informal referral networks to source both legal and administrative staff. That reliance is not an issue, except where that approach creates perception issues or other management problems for the law firm.

This Guidance Statement is not concerned with the situation where a judicial officer has agreed to provide a reference for a former employee of the judicial officer, such as an associate or secretary to the judicial officer, who is independently seeking employment with the firm. Where that former employee is a member of the judicial officer’s immediate family, however, similar issues may arise. 

Assessing the perception risk 

Some of the factors to consider when making an assessment of the relevant risks include:

  1. Whether the employee (which in this context may include legal or administrative roles, as well as partners or directors) was employed prior to the appointment of the judicial officer and, if so, for how long. Where the employee was employed for some time prior to the judicial officer’s appointment, this creates fewer issues.
  2. The qualifications and experience of the employee are relevant to the role. The hiring of an experienced and well qualified applicant will also give rise to fewer concerns.
  3. Whether the judicial officer had a past professional or personal association with the law firm. This may present a wider issue to be managed by such a firm.
  4. The size of the law firm, including the feasibility of creating information barriers. There may be less scope in a smaller firm to establish effective information barriers to ensure that an employee will have no involvement in or access to information in relation to the matter.
  5. Whether the immediate family member is part of the judicial officer’s household. This creates a further perception issue to be managed.


Strategies for managing the risks

  1. Consider any direct or indirect approach from a judicial officer requesting that the firm hire the judicial officer’s immediate relative very carefully, given the risks described above.
  2. Establish human resource policies setting out the firm’s approach to recruitment (such as merit-based recruitment and interviewing) and address in those policies the issue of approaches or referrals, not just by judicial officers, but by relatives of staff, clients or other associates of the firm on behalf of prospective employees. Persons making an approach might then be referred to such policies.
  3. Refer the judicial officer or a party making the approach on their behalf to a recruitment agency or to various programs for the placement of work experience students as alternatives.
  4. For an existing employee, ensure that they do not appear before the judicial officer, nor have any involvement in the matter, including by making or witnessing affidavits. Where that employee is a solicitor, they also have a professional obligation in this respect.
  5. If any member of the firm is appearing before a judicial officer whose immediate family member is employed by the firm, this should be disclosed at the earliest opportunity but no later than at the hearing as a matter of transparency.
  6. Establish information barriers to ensure that the employee does not have access to the file or any information about that matter. A policy should be created, if it does not already exist, as to how such barriers should be created and that policy should be circulated within the firm. Compliance with the barrier is also the responsibility of any solicitor so affected.
  7. Where a judicial officer has a past association with the law firm, such as being a former partner, care should be taken in relation to the distribution of any informal material, including on social media. Photographs taken out of context at appropriate social events, such as an annual firm dinner, for example, may imply an improper association, even when none exists, or be distributed in unintended ways.
  8. Seek advice from the QLS Ethics and Practice Centre, a QLS Senior Counsellor or a trusted senior colleague.
  9. If the law firm considers that any actual or implied threat, or offer of improper assistance, has been made by or on behalf of a judicial officer, consideration should be given to making a complaint to the Queensland Police, Australian Federal Police, or Crime and Corruption Commission (Qld), as the case may be, or to the head of the jurisdiction in accordance with that jurisdiction’s protocol for complaints. Advice from the QLS Ethics and Practice Centre, a QLS Senior Counsellor or a trusted senior colleague may be of value before taking such action.
  10. Practitioners are also reminded that they can make a complaint to the Legal Services Commission and that such a complaint with respect to the conduct of another practitioner can be made on a confidential basis.


More Information

Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).

For further assistance please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07-3842 5843 or email at ethics@qls.com.au