this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

LIV Library & Bookshop are open.

Limited access and COVIDSafe rules apply. Click the link for essential information:

Find out more
Select from any of the filters or enter a search term
Calendar
Calendar

Reputation: Matters of trust

Reputation: Matters of trust

By Carolyn Ford

Ethics Practice & Procedure 

0 Comments


In the wake of the Lawyer X scandal, Royal Commission recommendations around conduct of lawyers include strengthening access to ethical support. 

It was informing on an industrial scale. Never before in any jurisdiction has there been such a breach of the administration of justice as enacted by Nicola Gobbo, the barrister in the eye of Victoria’s Lawyer X storm.

As all the legal world knows, Ms Gobbo, the 48-year-old niece of former Victorian Governor and Supreme Court judge, Sir James Gobbo, was a registered police informer. Between 1995 and 2009, with complete disregard for attorney-client privilege and duty to the court, she shared confidential client information with Victoria Police, in so doing debasing fundamental premises of the criminal justice system.

A staggering 1011 cases (with a finding of guilt) may have been affected by the duplicitous conduct. Of those, 973 were Ms Gobbo’s former clients – convicted drug traffickers Tony Mokbel and Carl Williams among them. The cases of another 38 non-clients (with a finding of guilt) are possibly tainted. And they are only the known cases.

Brind Zichy-Woinarski QC, former chair of the Victorian Bar ethics committee, who “literally fell off my seat” when he first heard of Ms Gobbo’s informing, observed in a Monash University Lawyer X forum recently that “we will never know how many others may have been investigated where charges did not proceed. In many cases an individual and their families may have been placed under stress, even enormous stress. We will never know the full extent of what the conduct caused within the community.” 

Several people have had their convictions overturned in the wake of the Lawyer X scandal. It’s possible there will be more.

Ms Gobbo, also known as informer 3838, was struck off the Bar roll in November 2020. In the same month, the Royal Commission into the Management of Police Informants led by Commissioner Margaret McMurdo, in its final 1008-page four-volume report, made 111 recommendations. In accepting and pledging to act on all, the state government said “historic shortfalls” in the criminal justice system had been uncovered. Work “to ensure this can never happen again” but also to “restore public confidence in our justice system” would begin. New laws, an implementation taskforce, public interest monitor and special investigator are all underway. Strengthening of external oversight of police misconduct is planned.

The legal profession came in for scrutiny with recommendations around ethical conduct of lawyers. Supported by the Victorian Legal Services Board and Commissioner (VLSB+C), Victorian Bar and LIV, they include: 

  • strengthening awareness of and access to ethical supports 
  • reforms to strengthen the rigour of admission 
  • VLSB+C hold sole responsibility for complaints against lawyers
  • possible mandatory requirement for lawyers to report misconduct of peers
  • update rules for barristers and solicitors to provide more information on confidentiality
  • guidelines for barristers on maintaining appropriate professional boundaries and ethical guidelines for criminal defence barristers
  • legal regulator and professional associations collaborate to develop material for the public on lawyers’ professional and ethical obligations
  • practical and scenario-based legal ethics education at university and in CPD.

Emeritus professor Adrian Evans, a legal ethics educator, told the Monash forum that “clients are officially on notice not to trust their lawyers”, and that reinvigorated and nuanced ethics education of lawyers was required. Cost should not be allowed to be a hurdle.

“To really get to the root causes among lawyers and restore client confidence in lawyers, a review of all legal ethics education is necessary. It’s our responsibility to fix it.”

Tightly managed, narrowly targeted mandatory reporting of peers would be more useful, said LIV Ethics Committee chair for 15 years Richard Fleming, whose comments reflect his own views and not necessarily those of the LIV.

“Ethical obligations are drummed into you, 99 per cent of lawyers understand them . . . in this case, more training wouldn’t have made a difference. Nicola Gobbo is an outlier, she had her own psychological motivations for doing what she did.”

Mandatory reporting of peers might have helped – “others must have known” – but it is a vexed issue. Mr Fleming suggested “perhaps, as officers of the court, we are already obliged at common law to do that in as extreme a case as this”.

There was a risk of lawyers reporting inappropriately, in personal vendettas against opponents on trivial matters, plus the issue of regulatory resourcing. “There should be some significant hurdle to get over before reporting an issue becomes mandatory. It would need to be the most serious misconduct with potential ramifications for public faith in the justice system,” Mr Fleming said.

Raising awareness of ethics resources, such as the LIV Ethics Committee and ethics help line, was also important.

Victorian Legal Services Board CEO and Commissioner Fiona McLeay said a way to repair the damage had been established. 

The VLSB+C has begun issuing guidance about being an ethical lawyer and a fit and proper person to practise law. Findings from an independent review of CPD for lawyers recommends ethics training (https://tinyurl.com/ydh5q7h3).

LIV president Tania Wolff said, “We’ve got a well-regulated profession. We study ethics, we renew our ethics education every year, we know what duties we have to the court and clients. The vast majority of us observe what’s required without issue.”

The legacy of the scandal would, she said, be felt for many years. “It has eroded trust and we need to work to rebuild that, to reassure the public they can trust their lawyers.” 

Commissioner McMurdo was denied access to another 11 “extremely sensitive” human source files. ■


Views expressed on liv.asn.au (Website) are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV).

The information, including statements, opinions, documents and materials contained on the Website (Website Content) is for general information purposes only. The Website Content does not take into account your specific needs, objectives or circumstances, and it is not legal advice or services. Any reliance you place on the Website Content is at your own risk.

To the maximum extent permitted by law, the LIV excludes all liability for any loss or damage of any kind (including special, indirect or consequential loss and including loss of business profits) arising out of or in connection with the Website Content and the use or performance of the Website except to the extent that the loss or damage is directly caused by the LIV’s fraud or wilful misconduct.

Be the first to comment