Victoria’s the Royal Commission into the Management of Police Informants has made significant recommendations for changes in the way the legal profession is regulated and the duties lawyers owe to report misconduct.
The final report of the commission, led by Chair Margaret McMurdo AC, was handed down yesterday. It looked into the police handling of Victorian barrister Nicola Gobbo and others as human source police informants, and recommended changes to the way in which conduct matters for Victorian barristers are investigated.
The report also produced findings and recommendations relating to the police procedures, the operation of the criminal justice system and the regulation of the legal profession. Relevantly, the report summary said:
“When lawyers deliberately betray their client’s trust or act in ways contrary to their client’s interests, it can have a devastating impact on the client. It is also, as this inquiry has shown, apt to undermine both the integrity of the criminal justice system and public confidence in the legal profession.
“While Victoria’s legal profession regulatory framework has changed significantly since Ms Gobbo practised as a lawyer, there is scope to further strengthen and improve aspects of it.
“It is important that lawyers fully understand the duty of confidentiality they owe to their clients and their responsibility to maintain appropriate professional boundaries. It would be beneficial to clarify and harmonise these aspects of the professional conduct rules for solicitors and barristers.
“Legal ethics education is integral to supporting lawyers’ understanding and application of their ethical duties and obligations in practice, as well as their ongoing professional development.
“Embedding legal ethics education in lawyers’ continuing professional development, including through the use of practical, scenario-based learning, would support them to understand the common ethical issues that can arise in legal practice and enhance their skills to manage those issues. Strengthening awareness of and access to the various ethical supports that are available to lawyers is also important.
“When a complaint is made about a lawyer’s conduct, it is critical that the processes for investigating it are not only independent, but also seen to be independent. Under the current model, the Victorian Legal Services Commissioner is responsible for the receipt, management and resolution of complaints about the professional conduct of lawyers.
“The Commissioner delegates some of their powers regarding the conduct of barristers to the Victorian Bar, including the power to investigate complaints against barristers. While this approach has benefits – including the ability to draw on the practical insights and subject matter expertise of the Victorian Bar regarding accepted standards of legal practice and advocacy – it risks a public perception that the model lacks independence, given that another function of the Victorian Bar is to advocate on behalf of its members.
“Recognising the importance of public confidence in all branches of the legal profession, the Commission recommends that the Victorian Legal Services Commissioner holds sole responsibility for investigating complaints about barristers, so that there is a single, consistent, independent approach to the management of all complaints regarding lawyers in Victoria.
“The Commission has also carefully considered the potential benefits and risks of a mandatory requirement for lawyers to report suspected misconduct by other lawyers. While some submitters raised legitimate issues and concerns, the Commission considers that the introduction of such a mandatory reporting requirement would deter misconduct by lawyers, encourage their adherence to high ethical standards, strengthen public confidence in the legal profession, and bring it into line with other professions and fields where mandatory obligations apply, including the health sector and policing.
“The Commission also recommends reforms to strengthen the rigour of the legal admission process and to support access to independent legal representation for people in police custody.
“Finally, in light of the events that led to this inquiry, the Commission recommends that legal profession regulators and professional associations work together to develop communications material for the public about lawyers’ professional and ethical obligations, with the aim of restoring and maintaining public confidence in the legal profession and the broader criminal justice system.”
View the commission’s final report.