Resolving Conflict in the Age of Lawyer X
I don’t enjoy watching law related shows – they make our business seem easy, artificial and/or sexy. Lawyer 3838, which aired recently on Channel Nine, is no exception. But I found myself uncomfortable for another reason – seeing the story played out by actors working from a no doubt carefully scrutinized script, I felt great sadness as the way it brought the role of the criminal lawyer, and criminal justice system, into disrepute. The Underbelly franchise always focused on the wrongdoings of offenders and their lives – this mini-series is focused on the wrongdoings of a criminal barrister and Victoria Police!
Legal ethics is a compulsory subject in all Australian law degrees and is part of every lawyer’s training. It is then re-visited yearly as part of Continuing Professional Development which is mandatory for all practitioners. The Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 sets out the duties lawyers are expected to adhere to ensure the justice system is in fact just.
It is terrifying to think of a legal system without ethical lawyers. It brought such shock, shame and concern to the Victorian justice system when the details of Lawyer X’s (Nicola Gobbo) informing came to light.
In Australia, a solicitor’s duty to the court and the administration of justice is above all else. We must act in the best interests of our clients, but we can’t mislead the court for their benefit. Nor can we let our own interests come into play. Our ego must be left to the side. And this is where Lawyer X went wrong. The lines became blurred. Big time.
Lawyer X gave police information that breached client confidentiality. She got too close to her clients. She was representing people charged by the police whilst also covertly working for the police.
The Royal Commission into the Management of Police Informants is ongoing. Earlier this year in February, Ms Gobbo gave testimony via videolink. She admitted to prioritising her own interests. She felt “relevant or validated” when acting for the higher profile offenders. She felt “important” when assisting the police.1 Her personal feelings and desires came to motivate her. This is unacceptable and is in breach of her ethical duties. Criminal lawyers should be motivated by achieving the best results for their clients within the ambit of their ethical obligations and paramount duty to the court.
For criminal justice to be effective, the various players must stay in their lanes. Sure, that other lane might look easier or get you further, but at what cost?
If you are talking to a criminal lawyer, you should feel you can trust them 100% and that anything you tell them will be handled not just professionally but legally. We will tell you what the implications are for the information you share with us. We will use it to help you and to assist the court. We will not use the information for the benefit of others. We will not use the information for the benefit of the police. We will not use the information for the benefit of ourselves.
For all the criminal lawyers practicing ethically and staying in their lanes, the Lawyer X scandal brought shame to the field in which they proudly work. Do you remember at school being held back during lunch because one or two students were playing up? It’s a similar sentiment. We as humans always benefit from learning of the wrongdoings of others – we are reminded of why rules are in place and we see the consequences of rule straying. This story highlights the importance of legal ethics and as a young lawyer it is probably even more so at the forefront of my mind now, which is definitely not a bad thing.
It will be extremely interesting to read the Commissioner’s report when it is ultimately delivered, particularly in how it impacts on criminal law practice and ethics in the future. But for now, the community should be assured that that Lawyer X is an exception to the rule and that the criminal justice system is keen to learn from this and move forward ethically and conflict-free.