Judy Gutman, La Trobe University School of Law (Australia); Paula Baron, La Trobe University (Australia); Mark Thomas, Queensland University of Technology (Australia) (Moderator); and Susan Fortney, Texas A&M University (US)

Attorney Misconduct 

Judy Gutman and Paula Baron: Telling Tales out of Court? Judges and their Obligation to Report Lawyer Misconduct

This paper is concerned with the judicial power of the courts to discipline lawyers. The regulation governing lawyers in Australia is similar to that of other jurisdictions. The discipline of lawyers who do not meet the professional standards is aimed both at the administration of justice and the protection of clients and the public. However, the schemes rely on complaints being lodged against suspect lawyers. In the main, these complaints are lodged by clients, and some are made by other solicitors and regulators.

Judges also have the power to discipline lawyers, but this power is under-utilized. Judges have an inherent power to control the processes over which they have jurisdiction. This includes the power to discipline lawyers as they operate within that jurisdiction. Yet, as the case law shows, the predominant tools used by judges to control lawyer misconduct are statute based, such as costs orders and other penalties under the Civil Liability Acts. As has been reported by the Australian Law Reform Commission, however, the frequency of judicial reporting of lawyer misconduct is rare. The literature from other jurisdictions suggests that this issue is not confined to Australia.

This paper will draw upon the literature from both the US and Australia relating to lawyer misconduct in court to argue that judges should take seriously their supervisory powers over lawyers. Our central claim is that, that in addition to making costs orders and applying other penalties available to them through statute, judges should report lawyer misconduct to the appropriate regulators for disciplinary purposes. We suggest that disciplinary orders would be more effective to deal with what are actually ethical breaches. Such orders can affect the reputation of the lawyer and, in turn, their future earning capacity in terms of employment or future client demand. Their likely deterrent effect is thus higher. And, of course, there is symbolic value in judges taking action to uphold ethical standards.

This paper will identify the behaviors that are likely to attract a finding of misconduct (including breaches of the rules of Professional Conduct); analyze some recent cases where it has been acknowledged that lawyers have been guilty of misconduct and yet no complaint was made to the regulators; and recommend that judges ought to be more proactive in using their judicial power to support the aims of the legislation governing lawyers.

Mark Thomas: The Client Laid … (Bare): The Sexual Relationships of Lawyers in Australia and Beyond

'Dream case. Isn't it? High profile. Splashy. Big closing. Get the not guilty. Have sex with the client. It's all there.' Denny Crane:  Boston Legal 

Australia remains one of the few jurisdictions which lacks an express proscription against sexual relationships between lawyers and their clients.   The leading Australian decision is now over forty years old, and despite the recent drafting and implementation of a uniform code of conduct for solicitors in all States, the regulatory regime remains silent on sexual relationships with clients. 

This paper compares the development of regulatory proscriptions on lawyer-client  relationships across a range of jurisdictions, comparing these with the normative values embedded in the codes applying to health professionals.  

In doing so, it posits that the Australian regulatory framework has been – and remains – dominated by a discourse of the body, and retains a concept of consent which militates against regulation. 

Conventionally, the disinclination to regulate lawyer-client relationships has been illustrated by distinguishing such relationships from those of medical professionals. The more liberal approach taken to lawyer-client lies in the difference in the physical aspects of the relationships:  medical practitioners routinely require their patients to undress, and routinely touch patients in the course of diagnosis.  The implausibility of a discourse of a body, however, is illustrated by the preponderance of medical disciplinary proceedings against psychiatrists and psychologists. 

The normative frameworks which prohibit sexual relationships in other professional contexts have abandoned physical intimacy as the rationale for proscription, turning rather to concepts of power and vulnerability – bolstered by recognition of the contributing phenomena of transference and counter-transference. Under this framework, the distinction between legal and medical professionals is largely eliminated. 

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