Written by Peter Carter

July 25, 2020

This handbook is an excellent guide to most practical ethical dilemmas facing solicitors. It is not an intellectual treatise on ethical theory – of which there are many. Its value is in its practicality. In addition to commentary, it contains the Law Institute of Victoria’s (LIV) rulings and resolutions on a wide range of matters.

The author is a solicitor who practised for thirteen years. He is a Lecturer in Legal Practice and Ethics at Deakin University, Melbourne. As he points out in his introduction, the work does not address specific duties of advocates.

The author describes the lawyer’s three duties as being those to the client, to the court and to the profession and traverses the major issues in each field.

By far the majority of the handbook is devoted to the lawyer’s duty to the client. This is no doubt because the majority of LIV rulings and the majority of disputes are matters that concern the lawyer-client relationship. Retainers, costs, liens and conflicts of interest are all comprehensively dealt with.

The book will be an essential reference for all Victorian Solicitors. It is well set out and practitioners will conveniently be able to find considered answers to most of the dilemmas that will confront them.

It is also useful for lawyers in other States although there will be some matters which are permitted in Victoria and not in others and vice versa.

For example, at page 166 in a discussion relating to advertising and business operations, the author makes the statement “A lawyer is entitled to write to a doctor suggesting that the doctor refer the doctor’s patients to the lawyer for legal advice.” Then follows the Ethics Committee ruling on the subject. In Queensland for example, such a letter would be an invitation to the doctor to commit a breach of Chapter 3 of the Personal Injuries Proceedings Act 2002.

The Law Council developed Model Rules of Professional Conduct and Practice, adopted in several states and under consideration in others obviously, contain different provisions to those applying in Victoria. Nevertheless, there are some matters that are identical and there is commonality among all ethical rules.

The chapter dealing with judicial process contains some issues not commonly dealt with. In discussing the lawyer’s duty to ensure that the legal process is not abused, the author cites rulings upon inappropriate uses of devices such as letters of demand, engaging private investigators and causing delay.

The common thread among the author’s collection of rulings on abuse of process is the lawyer’s duty to act fairly and to fairly represent the facts and circumstances. In relation to causing delay, the author provides the following practical articulation: “A lawyer cannot issue proceedings, or conduct those proceedings, on behalf of the client in such a way to intentionally cause delay to the proper determination of the rights of the parties to those proceedings”.

The subject of the lawyer’s duty to profession is restricted to 14 pages. On the subject of relationships with colleagues, I was hoping for more then the statement “the existence of a professional relationship between lawyers requires lawyers to respect relationship with other lawyers and with their clients”.

Likewise, the work does not consider the lawyer’s duty to the public. In terms of a handbook, this is not surprising as this is not a matter referred to ethics committees for rulings.

It must be noted that the Model Rules of Professional Conduct and Practice are themselves sparse on the subject of relations among colleagues and silent on the lawyers’ public duty. Yet, conflicts among colleagues and how lawyers relate to the community are the two most prominent areas under which the profession will be judged by the public and commentators as we go forward.

Law bodies must maintain comprehensive codes dealing with inter-professional relations so the public can see that we comport ourselves in a way that we profess others should behave.

And for our calling to be properly understood in the contemporary setting, it is vital that we take seriously our public duty to serve the law, to never be overwhelmed by mere popular opinion, to be the voice for voiceless and the last line of defence of the public.

As a handbook, the work is an important practical tool. It is an easy read. Even for those States where no professional conduct commentary exists, I would commend it as a valuable reference. It goes to greater depth of analysis than, for example the Queensland’s Solicitor’s Handbook which merely sets out the rulings without discussion of the ethical basis of those rulings.