Author: Christopher Craigie SC, Date: 27/08/2009 Venue: 5th Annual Public Sector In House Counsel Conference, Canberra
I would like today to consider some of the kinds of ethical issues that one may face as a government lawyer. In particular, I want to spend some time discussing the importance of ethical awareness. I will also have something to say in conclusion as to the inseparable relationship between an ethical approach and effectiveness in prosecution. My reflections are, I must immediately concede, those of someone coming from a particular perspective. Necessarily I am drawing on my experience over now more than thirty years as an advocate. As a barrister for nearly all that period my “life of crime” has been almost evenly split between private practice and working as a statutory appointee, formerly as a Public Defender and now as Commonwealth DPP. I should hasten to add that at the private bar in the mid to late 1980’s I was fortunate enough to occasionally prosecute, it being during that happy time when the New South Wales DPP, still assigned quite a variety of its prosecution briefs in jury trials to external counsel. In my case the range of experience this offered varied between the occasional arson, some frauds, one or two rape trials and one or two serious woundings and at least one Commonwealth drug matter. This experience was enough for me to learn that prosecuting is never as easy as it can look from the other side. It also allows me to say now that the “poacher to gamekeeper” formulation that sometimes is put to me as reflecting my more recent change from one kind of statutory position to another is not the whole story. So it is from a mixed career perspective I will try to give you some suggested responses and approaches that you might find useful in meeting the ethical challenges that occasion ethical issues and conundrums. Note that I do not say “answers”, as unfortunately it is never as easy as that. My experience is that when ethical questions do arise, they are usually difficult, case specific and not assisted by rote answers. Indeed, sometimes, there is no precise “right” or “wrong” answer but often there is only a right approach that will at least result in a response that is armoured by good faith and a clear conscience that one did one’s best. Instead of any pretending to impart any counsels of perfection, my aim today is to encourage the development of a personal resource that may help in determining what at least is the right approach (if not the complete answer to a given situation. The resource that arises from this approach is what I will for convenience call “ethical awareness”. I will expand briefly on what I mean by this concept: To develop ethical awareness in a given situation, one of course first needs to understand your general ethical obligations. Once you are ethically aware, you need to have developed a plan for resolving ethical issues that your awareness reveals to you to in a given situation. I will discuss each of these ideas with you today:
Firstly as to understanding your general ethical obligations:
Before we can discuss the ethical issues one might face as a Government lawyer and give suggestions as to how to deal with those issues, we need to unpack, identify and examine our ethical obligations as they arise in several ways. It is vital if we are to develop an ethical awareness that we know with some certainty what our general, over-arching ethical obligations are. I see them as falling under several headings. Again, I necessarily draw on my own situation and experience to indicate and illustrate some of them. It is appropriate for this audience to categorise the areas of obligation into two broad areas they are:
- Professional obligations.
- Public service obligations
Firstly, as to Professional obligations: Wherever we happen to be working, the profession of law is our vocation, what we are and never simply what we do. Despite the various calumnies heaped upon us by the popular media and a culture that thrives on lawyer-jokes, lawyer sitcoms and images of slick and sleazy lawyers, we are a profession, and an honourable one at that. Despite any public cynicism to the contrary, what comes with that status is an ethical dimension that is an ever-present element of our daily work. In fact, this aspect of ethical awareness is the essential tool that should always be at the fore-front of our professional approach and consciousness. So even before we get to the vital matter of specific rules and codes that guide and govern our conduct there has to be an essential grasp of what our profession is about. I can never think of a more apt statement of this than a motto, that happens to be that of the NSW Bar, “Servants of all, yet of none”. Apart from our significant obligations as officers of the Commonwealth, to which I will come shortly, it is appropriate to reflect on our core professional obligations as lawyers to assist in establishing the foundation of all our ethical obligations. This is that all lawyers, whether in the public or private sectors, are bound by the ethical letter and spirit of the legal professional rules of the various governing professional bodies. These, in turn are underpinned by common law principles as to duties that are owed by a lawyer to an individual client or client-interest, to the courts and to justice itself. As admitted lawyers, we are also officers of the court and owe an ethical duty to the Court and thereby to justice in the work that we do. Our duty to justice, traditionally expressed as a duty to the Court, is in fact the paramount duty. It is not in conflict with other duties, the nature and limits of which are illuminated by the fact that as lawyers we primarily serve the interests of justice. This, if anything, is the value that we constitute for an ordered society. Duty to the Court can be compared to and reconciled with one’s duty to a client, as Mason CJ discussed in Jump to in page footnote Giannarelli v Wraith1 at the bottom of this page “The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground of appeal. It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary…” Our duty to the court is often best understood in relation to our practice as advocates, never more so I might say than when one prosecutes. However, it is not limited to those of us who happen to work primarily as advocates. For those of us who perhaps do not engage directly in court work, this might not always be in the forefront of our minds, however it is a matter worthy of reflection every now and then to ensure that your ethical compass is continually aligned. In an increasingly interconnected world it is not surprising to find that there are now some broadly accepted international professional rules that may relate particularly to one’s work or agency and its functions. For example, the International Association of Prosecutors has adopted its Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors. The Standards cover a range of areas, such as disclosure, prosecution decision and treatment of victims. I have formally and publicly endorsed these standards on behalf of my office, and in doing so said: I am delighted to endorse the IAP standards. Although co-extensive with principles underpinning the Prosecution Policy of the Commonwealth, our endorsement is an important public statement of commitment to the highest standards in ethical prosecution. The endorsement is also reflective of our engagement in international capacity building. The latter advances and maintains the rule of law, which is in the national interest and consistent with a long standing interaction with and support of fellow independent prosecutors in the Pacific region. These standards now formally constitute part of the ethical framework for me and for my office. You may well find that there are other international professional rules, codes or standards that relate particularly to your area of work or agency and that these which should form part of your ethical framework.
- Let me now turn to what I describe generically as Public Service obligations:
These are the obligations and ethical responsibilities that come from our roles as public servants or, in my own case, as a statutory appointee. The “servants of all, yet of none” motto that I embraced earlier is also a notion that sits comfortably with the role of a lawyer as a public servant; that is because we serve the community, as embodied by the state, but we do not serve the individual interests of those elected officials who from time to time are vested with high office. We do, however, adhere to the principle that elected officials, particularly ministers of the Crown, in the right of the Australian states and territories or the Commonwealth, have the responsibility and lawful authority to define and direct the policies of governments of which they are members and thereby determine the policy and statutory environment within which we work. Recognising the extent and limits of this situation is important, particularly for those of us entrusted with statutory functions that must be exercised independently of political direction or partiality but with due regard both to the law and lawful authority. A number of us, myself included, are subject to specific statutory obligations; such as reporting requirements, the maintenance of conduct requirements or the adherence to particular decision making processes. As the Director of Public Prosecutions, I have a number of statutory powers and functions. These are set out in the Director of Public Prosecutions Act. The statutory functions include a number of different decisions in relation to the conduct of prosecutions. Some of those powers have been delegated to certain senior members of my office and some have not. Importantly, my office has clear guidance as to which of my statutory powers can be exercised and by whom. This guidance is vital for people to understand exactly what their statutory obligations are and thus to build their ethical awareness as it relates to their position. As a public servant, one will also find a number of obligations spelled out in the codes of conduct. I note that in the APS Code of Conduct, one finds a number of ethical responsibilities which build the framework of our ethical awareness, for example duties to maintain confidentiality and to disclose and avoid conflicts of interest. I recognise that many here may not be APS members, that is no reason to not to have regard to the APS code, even if it is not formally embraced by you conditions of employment. As in house-lawyers, many of you will be asked to provide legal advice to your office or perhaps on behalf of your office to other agencies within the Commonwealth sphere. You may be required to act on behalf of your office in negotiations or in liaison responsibilities with other agencies. Again, our codes of conduct provide insight into our ethical responsibilities with requirements to behave honestly and with integrity and to act with care and diligence. Occasionally it may require the courage to remind your own or other agencies of the limits of a statutory remit and where the division between functions of administration, the public interest and politics lies. These distinctions are not always clear but it is important sometimes for the lawyer in the room to ask them in order that they at least obtain proper consideration and resolution, if that is required. In the process that I am suggesting, we also need to look to our agency’s internal policies and procedures to build comprehensive ethical awareness. By way of example, I refer you to the role that the Prosecution Policy of the Commonwealth has in relation to my office. In March this year, coinciding with the 25th Anniversary of my Office, the latest iteration of the Prosecution Policy was approved by the Attorney General. The Policy constitutes a public document that is the essentially unchanged declaration of values in a consistent ethical approach. This defines all the functions of my Office and is the constant guide to the lawyer’s within the CDPP who advise, instruct, or appear in courts to prosecute in the name of the Director. The Policy remains the essential ethical anchor for me and my Office when it comes to implementing the central prosecution function and all the processes supporting that function. To have such a defining document is a valuable thing, as is its status as a public document; both as something to which we can refer where it is appropriate explain how a particular decision was arrived at and against which we welcome assessment and judgement by others. It is no exaggeration to say that the Prosecution Policy has for me and my Office a status somewhat akin to declarations of faith and practice. In our case it actually comes down to what one might call the three commandments. At the risk of impiety I might express them in these plain English terms that I believe accurately paraphrase the Policy: The CDPP does not prosecute unless firstly there is a prima facie case. The CDPP does not prosecute even then, unless there is also a reasonable prospect of success. The two foregoing factors being found, and only then, does the CDPP consider whether it is in the public interest to prosecute. Whilst the Prosecution Policy does have this declaratory status that binds me and my Office and informs all who deal with us, it is not the sole pillar supporting the ethical structures of the Office. It is, however, the most prominent such structure in the daily and public life of the Office and, one trusts, in the minds of all CDPP staff. Let me encourage each of you to look at your own agency’s prime imperatives. That may be expressed in the legislative remit of a founding Act, in regulations, agency policies and procedures whereby you may see the points at which those documents are likewise ethical pillars for your agency. You should be aware of and refer to those structures to inform and develop your own ethical awareness as an in-house lawyer of that agency. So, apart from what is laid down in Common Law, Rules, Statutes and codes what are the Personal Attributes that assist one in being ethically? There are for all lawyers (and in-house prosecutors in particular) some personal and professional attributes that I would suggest are valuable, and in some situations indispensable. One such attribute in what I have outlined and called “ethical awareness, the personal dimension of which I can best explain in the following way: Over the later years of my being in chambers, both as a senior junior in private practice, including an interesting five years on a bar ethics committee and as a silk with the NSW Public Defender’s chambers I would from time to time have other lawyers telephone me or drop in for advice or to simply provide a sounding board whilst a ethical challenge was worked through. I should say in passing that these practices simply reflect a wonderful bar tradition of collegiate support. Although a notable characteristic of the referral bar it is not one over which there is any patent reserved to the bar and I commend it to all advocates and all lawyers. More often than not in my own experiences of that collegiate process of meeting and examining an ethical issue, the challenge was met and resolved by talking about it, sometimes at length, sometimes in breaking down a series of issues into questions, making a note of them to be examined and dissected in turn, rather than responding to the asking of one single question. Of course, sometimes the answer to a self-answering question put as “it’s alright if I do this, isn’t it?” requires little more than gently asking why the question is being put. Many senior lawyers will have had the broader kinds of approaches, questions and conversations to which I refer. They more usually commence with a situation being recounted (one trusts with accuracy) in terms that conclude with a question; “what do you think I should do about this?” Often the issue is one to which a simple solution may not be possible or indeed necessary, but where it is for the lawyer seeking guidance to decide whether he or she wants to engage the issue, to correct the situation or walk away from it and the client or interest concerned. Unlike the self answering question that I referred to earlier, the asking the inquiring kind of question indicates that the person seeking guidance already starts from a position of advantage. They see that they come to a situation that is usually created by the acts or the status of others and where there is the option and capacity for the lawyer to either become part of a solution or part of a problem. Which outcome emerges largely turns on whether there is initially that robust ethical sense that, even it is annoyingly inconvenient, a problem exists and the task is to determine how it is best approached and resolved. The responses for the lawyer confronted by an ethical problem can range from giving preventative or curative advice to a client to deciding not to adopt a particular process or tactic that will bring on the ethical problem. In an extreme instance, the situation may require that one decides that one cannot act for the particular interest of party if the ethical issue has not been resolved. These kinds of situations give rise to the “what will I do question”, the form of the question itself indicating that the questioner starts with a certain ethical awareness. It demonstrates that the lawyer is aware of the potential and real ethical issues in their context. An ethical awareness may sometimes be demonstrated simply by that troubled feeling you may get over a given situation. I would encourage you to listen to yourself in that moment and ask yourself why it is that you are troubled. Allow yourself to think the situation through and work towards your understanding of the situation. The “what will I do” question often flows from this, more of which I will discuss later. One situation that I find more troubling is the lack of question or a troubled feeling that it is either ignored as inconvenient or obscured by hubris, ambition or some other self-focussed motive. By this I refer to the lawyer who inwardly asserts “I don’t have any ethical issues”. Now, that statement may reflect the truth of the matter. Alternatively, it may reflect that the lawyer has not reflected on ethical obligations and has not established an ethical awareness; with the result that they the potential ethical issues are bubbling about the lawyer whose fate may come to resemble that of the content but doomed frog in boiling water. As I mentioned in my introduction, my encouragement for each of you is to be in the first category – a lawyer who is constantly developing their ethical awareness which means, to continue the frog fable that well before it gets too hot one has awareness of the water temperature and has hopped in another direction. This discussion of developing an ethical awareness leads to the practical question of how ethical issues are resolved once they are discerned. This turns on what I referred to earlier in the need developing a plan for resolving ethical issues: First, as indicated earlier, I would recommend that you start look to the framework of ethical obligations to which I have referred. Ethical issues are unlikely to be clear cut or simple, but your framework of ethical obligations will set you on the path of understanding why you feel that you have an ethical issue to deal with and help you to identify the various aspects of that issue which need to be resolved. In considering your framework, you may need to consider in what capacity are you acting in the situation where the issue arises. For example, are you performing a statutory duty, or, a more vexing issue for us as Government lawyers, are you acting in a lawyer/client relationship or not? In taking my own office as an example, there are some situations incidental to prosecuting in which members of the office act in a solicitor/client relationship to investigation agencies who refer briefs to us. More often than not, however, my office is not acting in a solicitor/client relationship with investigation agencies. Once a brief is referred to my office for consideration of prosecution action, my office is exercising independent prosecution functions and not acting on the instructions of the investigator, this is a complex situation. As an in-house government lawyer you may well find that you have similarly complex interrelating capacities in which you act. It is likely that these will need to be clear in your mind when considering any ethical issue. That first step may be sufficient for you to resolve your issue in terms of relying on the fact that you have independent function removed from being instructed beyond a certain point. More often than not, I suspect, it will not be that simple. I would suggest that one would also be well served by making use of the various ethical guides available. For example, the Law Society of NSW has released a Government Lawyer’s Guide to rules on ethical issues. That document has references to the various rules that potentially apply to Government lawyers, possible ethical issues and cases of interest. It has also released a practical guide to ethical issues that may be faced by Government lawyers entitled “Guidance on ethical issues for government solicitors”. Both of these documents are available on the Law Society’s website. The St James Ethics Centre also provides useful resources. In particular it runs a free and confidential ethics counselling centre. It also provides a number of resources on its website at www.ethics.org.au including ethics forums and ethics articles. The Commonwealth has recently established the Ethical Advisory Service. This service is available to all Commonwealth public servants to assist with advice on ethical issues. The Ethics Advisory Service provides advice in relation to the application and interpretation of the APS values, the Code of Conduct, techniques for making ethical decisions, advice on public sector ethical issues and information in relation to managing allegations of misconduct or whistle blowing disclosures. More details on the Ethical Advisory Service are available on the Australian Public Service Commission’s website. Finally, I recommend that you discuss your ethical issue with a colleague that you respect and whose judgement you trust. If you are in a position to do so, it is valuable to foster a collegiate spirit and culture, whereby people are confident about raising and discussing ethical questions. Importantly, no one is too senior not to benefit from asking such questions, as well experiencing the challenge of formulating responses and answers. That is the essence of what I was describing before about junior lawyers coming to a senior lawyer to raise the question of “what should I do in this situation”. Make sure that you have those relationships around you to enable that conversation when you need it. And to the senior lawyers here, you have the potential to play a very important role to hose more junior in our profession as they work their way through ethical issues. If you are able, make yourself available to junior lawyers to discuss these types of issues.
A few words about the inseparability of effective prosecuting and ethical prosecuting the Commonwealth.
Throughout my time in both trial and appellate practice I have seen the occasional rough player at both ends of the bar table, but very few instances of what I would call unambiguously unethical behaviour. Certainly, and this is frequently conceded by their opposite numbers and by judges to whom I have spoken, the most outstanding and effective prosecutors that I saw and continue to see were the calm, methodical and overwhelmingly fair lawyers. I am firmly of the opinion that the most devastating weapon of a competent and well briefed prosecutor is to have the perception and reality that the judge and the jury can accept that lawyer as operating ethically and fairly. It is not just the prosecutor who possesses this devastating weapon of operating ethically and fairly. For every lawyer, to perform their tasks ethically and fairly is a powerful tool. In a Court setting a reputation in this regard is precious. Even for a relatively junior lawyer it is a valuable thing if interchange and conduct create the impression for the tribunal of fact that this is an unambiguously ethical lawyer.
It has been my experience that many practitioners, amongst them the elders of the profession and those who come to judicial office exhibit the kind of approach that I identify and I commend. The approach is nothing new and was around long before any of us were in practice, it is nonetheless inherent in the kind of ethical awareness that I have mentioned earlier. Having such awareness does not require a degree of moral superiority over other people or attaining saintly perfection in all of one’s professional judgments. It requires no more and no less than a basis level of awareness of and adherence to sound ethics as the tool of trade that most lawyers carry at the fore-front of their minds. Indeed, it appears to me that without an ethical awareness, you are unlikely to realise that you are facing an ethical issue and perhaps one with significant attendant risks to your cause, your standing and possibly your career future. My aim today has been to give you pointers in developing your ethical awareness.
- Know the framework within which you are working
- Know the legal requirements that apply to you
- Know the applicable codes of conduct
- Be self-aware
- Make use of the resources concerning ethics that exist and are being developed for lawyers
- Don’t be afraid to discuss an ethical issue with a colleague that you trust and embrace a collegiate culture in this regard.
Whether one calls it “ethical awareness” or something different, these approaches are essential, not only for the satisfaction and security of practicing ethically and in accord with principle; but to practice effectively. I trust that these reflections may be of assistance and go some way towards maintaining the high standing of in-house lawyers across the agencies of the public sector. Endnotes (1988) 165 CLR 543 at paras 11 and 12