Recently, American actor Johnny Depp sued former wife Amber Heard for defamation; you may have noticed.
Indeed, there is no ‘may’ about it – there are probably as-yet undiscovered tribes in the Amazon that have heard about this case, and no doubt have opinions on it as well. That is because this trial has been played out in the media as much as the courtroom, resulting in a treacherous landscape for lawyers; it is unsurprising that one of Johnny Depp’s legal reps slipped up.
While Depp was the obvious victor in the case, his winnings were offset by a successful counter-suit from Heard, with the jury finding that one of Depp’s lawyers had defamed Heard when he accused her of damaging the couple’s penthouse and calling 911 “to set Mr. Depp up”.
The United States has a different regime, of course, but here in Queensland that lawyer would likely have failed the duty of independence.
It is easy to do – we all care about our client’s case, their wellbeing and the way they are perceived; it is not a big step to go from representing a client to entering the arena and taking their cause as our own – but it is a step that we in Queensland cannot take.
No doubt Depp’s lawyer was acting on instructions, and again, the US is not Australia; he was likely well within the boundaries of acceptable conduct in America’s legal system. In Queensland, however, solicitors must – without exception – turn their mind to instructions they receive, apply their own forensic analysis and provide a frank and fearless response to the client.
Our system is not immune to the lure of the media and the potential strategic advantage to commenting in that space; we often see lawyers announcing the intentions of their clients at press conferences, which is arguably diminishing to our profession but nevertheless within the rules. That said, our obligation to be more than a mere mouthpiece for our client remains, and sometimes we need to tell our client ‘no’.
Our duty of independence is spelt out plainly in rules 4 and 17 of the Australian Solicitors Conduct Rules 2012, and in truth it is the main reason we have jobs.
Nobody would need a solicitor if all we did was parrot what our client wanted us to say, and never challenged instructions; a person who needs blind reassurance should get a dog. Solicitors, on the other hand, tell it like it is, have the hard conversation with the client and keep a distance between them and their client’s case.
Johnny Depp has two million reasons to wish that his lawyer hadn’t strayed into the grey areas at the edge of the duty of independence, and it would have been much better if the lawyer had said, “hey, let’s not say this”, but in Australia the lawyer would be asked some tough questions.
We need to step back, and take the heat and emotion out of the matter; our client’s best interests are served when they don’t become our interests too. This is one of the main reasons acting for family and friends can also be challenging. Please see Guidance Statement No.23 – Acting for family and friends.