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Duty to court is paramount

Martin Daubney AM KC shared his reflections with a record crowd at the QLS In-house Lawyers Breakfast this morning. Photo: Natalie Gauld

The Honourable Martin Daubney AM KC reminded in-house counsel today that their two duties – to the court and to clients – do not conflict.

The former Supreme Court Judge addressed the Queensland Law Society In-house Lawyers Breakfast at Customs House this morning, with more than 150 attending in person and online around the state.

“They do not conflict – the duty is to the court is paramount,” he said.


More than 150 practitioners listened in today.

“I know, and I’m sure many of you know, that it is not at all unknown for lawyers in private practice to tie themselves in all sort of knots trying to resolve what they describe as a conflict between their duty to the court and their duty to client.

“There is no such conflict. The duty is to the administration of justice is paramount.

“You as in-house counsel might find yourself similarly torn in what you may perceive to be a conflict between your duty to the administration of justice and your duty as a faithful employee. In truth though, as the High Court has said, there is no conflict.

“Where people tend to encounter issues in the area is by failing to appreciate that as in-house counsel they are first and foremost lawyers, and will always be so.”

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The former QCAT President and nationally accredited mediator shared his reflections on the “sometimes difficult, if not fraught, exercise” with the largest QLS in-house lawyers breakfast so far, which also included an audience in Townsville and on the Gold Coast.


Townsville lawyers joined the livestreaming.

“While I haven’t myself served as an in-house lawyer in the course of my career, I’m no stranger to the reality of the life of, and challenges facing, an in-house lawyer,” he said, having served in governance roles, on boards, worked with non-for-profit organisations, and for the past two years as the Chancellor of Australian Catholic University.

The university has about 33,000 students spread across campuses across the globe, with studies ranging from law to “those which can present a real risk of physical injuries such as health and sports science”.

“So you won’t be surprised to hear then that it is a rare day when I don’t have some sort of communication … from our university’s very experienced general counsel and company secretary.

“I haven’t arrived here in the gilded express lift from the rarefied and theory-heavy atmosphere of the ivory tower. I do have, I flatter myself, some real-life experience to draw on. At least from the perspective of a direct consumer of the services of in-house counsel.”

He examined two case studies – one involving the operator of the Star Casino and the other the Royal Commission into Robodebt – to show why the lessons learnt from those were so important.

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His Honour, who was admitted as a barrister in 1988 and was appointed as Senior Counsel in 2000, recommended an article published this year in the Australian Law Journal as a “very useful analysis” on conduct of in-house counsel and “wholeheartedly” endorsed that advice.

It includes matters such as this, he said:

  • You are not a passive bystander – particularly if the advice is not being sufficiently considered to whom you are reporting;
  • Maintain your independence and integrity as a lawyer – give advice and make recommendations based on the law, not on the expectations or desires of the client. Your advice is legal advice. You are not giving the client the answer they want to hear.
  • Frank advice – your obligation of independence requires this even when you know the client may not prefer to hear it and even advocating for the client to take external advice if you are in any way concerned about your standing to give independent advice or if concerned your advice is not being appropriately heeded.

And why heed the advice, he challenged the audience.

“Real life, practical considerations intrude and can impact on the way a matter in which you perform your duties and discharge your obligations,” he said.

“Here is the fundamental reality from which neither you or your employer can escape, no matter what your job title might be, and no matter where on the org chart your name and position description happen to appear, you are employed as a lawyer because you are a lawyer.

“The fact you are a lawyer defines the essence of your role for both you and your employer, and both you and your employer need to accept that by employing you in-house as a lawyer there are consequences on the way in which you must approach, perform and fulfil your employment obligations.

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“It means you are not merely a faithful servant of your employer.”


Clayton Utz Partner Majella Pollard, Martin
Daubney KC, and Chair of the QLS In-house Counsel

Committee Phil Ware.

In-house counsel can still nominate peers for the QLS Excellence in Law Awards. Nominations now close on 10 June.

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