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X-files: Betraying clients and the legal system

Opinion

The case and deeds of ‘Lawyer X’ has shocked the nation’s legal profession and betrayed the very fundamentals of justice and client legal privilege, argues Morry Bailes.

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There’s not much that can shock and dismay an entire legal profession in Australia. We are a pretty world-wise bunch, having seen much of the underbelly of life. We are also disparate in view and opinion. However one revelation had us all reeling, and that was the detail regarding lawyer X, revealed to the Victorian Royal Commission into the Management of Police Informants.

The allegation was first aired when the High Court dealt with an appeal in which a lawyer had turned police informant. Who that person was remained suppressed, and the extent of what had happened was unknown. After the initial incredulity amongst the legal profession, there was a sense of shock.

From there things just got worse. The lawyer concerned was not a solicitor as some no doubt thought, but a barrister who had acted for some of the biggest crime gang names in Victoria, indeed Australia. By the time the full story of Nicola Gobbo was out there it was even more extraordinary. This was a lawyer who had been ratting on her clients to Victoria Police for years and years, with seemingly complete impunity.

We now have the findings of the Royal Commissioner Justice McMurdo, and it reads pretty much as we, the legal profession, had expected. Now that those findings have been handed down, what does it all mean to members of the community who use lawyers and for the profession itself?

From the outset it must be properly understood what lawyers’ duties are and why these acts by Ms Gobbo were such an utter betrayal of the fundamental ethics of our profession. Further necessary is an understanding of a client’s rights relevant to this matter.

When we are admitted to practice law the admitting authority is our Supreme Court, before whom we are required to take an oath or affirmation undertaking that we will honestly conduct ourselves in the practice of the law. That oath or affirmation is taken not only after we have satisfied the court that we have fulfilled the necessary educational requirements, but that we are also fit people to practice law. The words that we utter may seem but a few but they mean a great deal.

What we are doing on admission is guaranteeing we will abide by our duties and ethics because we are a largely self-regulated and independent profession. Those duties and ethics come from centuries of tradition and at their core comprise a paramount duty to the court and to the administration of justice that prevails above any other duty, and a further duty to act in the best interests of a client in any matter. There is also a duty to avoid acting for a client if their interests conflict with another client’s interests or our own.

There are other other duties and ethical principles to be found in our Conduct Rules, but our duty to the court and the administration of justice is absolute.

Turning now to our clients’ rights, amongst them there exists client legal privilege. Another description of this right was solicitor-client privilege. Whilst the difference in the evolution of language is subtle, it is helpful in understanding this right. It is the client’s right, not the lawyers right. Like the right against self incrimination, it is an old common law right. It means in effect that a client can obtain privileged advice from a lawyer that will remain confidential. It protects communications between lawyers and their clients in the giving of general legal advice and, if a matter is litigious, communications about any litigation that may be happening or happen in the future.

The high water mark with client legal privilege lies with the client. If and only if the client wishes something confidential and privileged to be disclosed may the lawyer disclose it. It is the client’s right to exercise to the extent a client wishes.

The reason in law for this fundamental individual right is not to assist our clients but rather the administration of justice.

It is imperative that clients are able to obtain legally privileged advice and maintain litigation privilege, or the wheels will fall off our justice system.

It exists to enable our justice system to work properly.

If for a moment you think it’s a free kick for a litigant or an accused person, think again. The law is so complex these days that being able to freely admit facts to an advisor results in sound legal advice. For instance, that a legal action may not succeed, or that a person will be successful in resisting a prosecution, whether it is about personal alleged wrongdoing or a corporate regulatory matter. It can truncate and streamline legal matters. For a person seeking advice to be constrained and to hold back vital information and to not give all of the facts to a legal advisor would result in poor and incomplete advice, and would in turn be nothing short of a catastrophe for the administration of justice.

So what did barrister Ms Gobbo do? She is said to have taken legally privileged instructions from her clients on many, many occasions, and handed that material straight to police. Worse still, she may have been wired, enabling privileged instructions to be heard and read by police, because that is what informants are sometimes asked to do. That is as fundamental a breach of client legal privilege as you will ever likely see. It is a fundamental breach of the administration of justice, and it is a fundamental breach of our duty to act in the best interests of our client. It is also acting for clients when there was a blatant conflict of interest, which in itself is also a clear breach of our duties. To any lawyer, it is behaviour that is so reprehensible, as a profession we are  utterly appalled by what was an unpardonable course of conduct.

So was the Royal Commissioner, who has made it quite plain in her language what a betrayal of duty to the court and our ethical obligations this constituted. She found that Ms Gobbo’s ‘breach of her obligations as a lawyer was inexcusable’.

Whilst much of the fire in this Royal Commission has been directed at police, I want to make it abundantly clear to the public how reprehensible we, the legal profession, regard Ms Gobbo’s conduct to be. It was not a mistake, it was not conduct that she was forced into; it was a deliberate and blatant disregard for the oath or affirmation that we all take to the court to uphold, not diminish as she has done, the administration of justice.

What is worse, a host of convicted people – some with crimes of a heinous nature – may now appeal and be set free. Don’t get me wrong, that is what our criminal justice system must do if the evidence gathered is now tainted to a point where without Ms Gobbo’s actions there is doubt about whether these matters would have been proved, or under her malign influence, she led her clients to admit wrongdoing they did not have to admit.

It is critical however to maintain confidence in our legal profession and our criminal justice system. I have never encountered anything like Ms Gobbo’s conduct before and don’t ever expect to see its like again. The legal profession can be trusted without reservation because the remainder of us understand exactly what was done here by our own, and reject her appalling conduct. We understand our duty to the court and to our clients.

I write this to restore any lost faith in our legal practitioners or in our system, caused by the actions of one person. The right to client legal privilege is unchanged and those who have so egregiously breached or encouraged its breach through this episode will have further to answer for, as one of the Royal Commission’s recommendations is the appointment by the Victorian Government of a Special Investigator with an eye on criminal prosecutions.

It is a privilege to practice law, to support the court in this ‘the justice game’, to defend and represent our clients’ rights, and to contribute to the proper administration of justice and thus to society as a whole. Whilst this report comes at an unfortunate time when the faith we have in our institutions and our law is often questioned, it is imperative that we respond by pointing to the strong and vital framework that is the rule of law, which together with our entitlements to freedom of expression must be defended at all costs.

Whatever may now happen to Ms Gobbo or to any other person who is implicated in this matter must happen, because the rule of law depends it, and we will be stronger for it. The debasement of such an important common law right in this way can never be forgiven and it should never ever happen again.

Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

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