Back when I first started, the Law Society would periodically send out to practitioners the Rules of Professional Conduct for Barristers & Solicitors (the Red Book).
The purpose of this publication was to clearly set out the ethical and professional duties and responsibilities of lawyers in New Zealand.
The Red Book was invaluable, largely due to the fact that it not only set out the relevant rules of professional conduct but provided helpful commentary on each of the rules.
Unfortunately, in 2008, when the Rules of conduct and client care for lawyers were promulgated, the practice of providing detailed commentary in the Red Book was discontinued. The Red Book simply became a copy of the Rules. This was a great pity and left a considerable vacuum.
But just as nature abhors a vacuum, so too does legal publishing.
In this case the void has been filled by Richard Scragg’s The Ethical Lawyer.
Scragg’s work is intended to be a comprehensive account of the principles of legal ethics and professional responsibility in New Zealand and a guide to the practical application of those principles.
Scragg’s purpose was to “focus on the key ethical issues that lawyers encounter on a day-to-day basis in their practices” and “give lawyers an easy-to-follow guide to complying with the requirements of New Zealand’s Lawyers and Conveyancers Act 2006 and the Rules of Conduct and Client Care for Lawyers”.
In my view, The Ethical Lawyer fulfils these goals admirably. It provides both thoughtful analysis and guidance in respect of what are often challenging ethical dilemmas.
So, what does The Ethical Lawyer cover?
There are 16 detailed chapters but the best are those which focus on the topics of Misconduct (Chapter 5), Conflicts of Interest (Chapters 11 and 12) and Advocacy Ethics (Chapter 13).
Chapter 5 – Misconduct
In this chapter, Scragg explains just what will amount to misconduct under the Rules of conduct and client care for lawyers.
Obvious examples of misconduct such as dishonesty, breach of fiduciary duty and charging excessive fees are canvassed and examples of such conduct explained. So too is misconduct based upon inadequate supervision of a practice and/or its employees.
It is also misconduct to obstruct a New Zealand Law Society investigation and Scragg’s in-depth coverage of this topic is nicely illustrated by the High Court’s decision in Hart v Auckland Standards Committee of the New Zealand Law Society [2013] 3 NZLR 103 where it was said:
“Any deliberate refusal by a practitioner to comply with a lawful requirement made by a Standards Committee tasked with investigating a complaint must be regarded as serious. It indicates a lack of candour that may be significant when considering the fitness of a practitioner to remain in the legal profession.”
This chapter also touches upon misconduct in litigation. Here Scragg considers the case of National Standards Committee v Orlov [2013] NZ LCDT 45 and whether or not the High Court was correct when it quashed an order striking off the practitioner involved. The Orlov case dealt with rule 13.2 which provides that a lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary. The Disciplinary Tribunal had found that Mr Orlov “had made statements that were false or made without sufficient foundation, and that the nature of the statements meant he was not a fit and proper person to be a lawyer”. On appeal to the High Court his appeal was dismissed except in relation to penalty. On that issue the High Court quashed the order for striking off and said:
“We place weight on the fact that the practitioner’s offending conduct consists only of speech, and [was] directed against a member of the judiciary. It [did] not involve mistreatment of clients or their money.”
Scragg describes the first sentence as “startling” and clearly considers that misconduct stemming from speech alone should not be considered as somehow a lesser form of misconduct.
Chapters 11 and 12 – Conflicts of interests
In these two chapters, the author explains and illustrates with multiple examples typical conflicts of interest problems and, importantly, how to deal with them once they have been identified.
As Scragg says conflicts of interest for lawyers can arise in a great deal of situations but can generally be grouped into categories:
- Conflicts of interest between clients: over their interests in the same matter; over their interests in separate matters; and conflicts between a current client’s interests and those of a former client.
- Conflicts of interest between a client and their lawyer.
In dealing with these categories the author outlines the obligations on lawyers to fully disclose conflicts to clients (where that is possible) and the circumstances where it is just impossible to act fairly and adequately for both parties. The coverage of these matters is in depth and given their importance from a risk management perspective compulsory reading for practitioners.
Chapter 13 – Advocacy ethics
As an officer of the court concerned in the administration of justice, counsel has an overriding duty to the court, to the standards of the profession, and to the public, which may and often does lead to a conflict with a client’s wishes or with what a client thinks are his or her personal interests. In chapter 13, Scragg discusses this tension and the obligations of advocates before the courts. A broad range of topics are discussed, including:
- The protection of court processes;
- The duty to remain independent – illustrated by a discussion of the circumstances in which a lawyer can remain counsel when he or she is able to give evidence;
- The obligations on counsel when presenting evidence and witnesses – in particular the obligations that arise when a witness gives evidence in support of counsel’s client’s case that counsel knows to be false; and
- The extent to which counsel can help prepare a witness to give evidence in court.
On this last topic, the author refers to the words of McKay J – writing before his elevation to the bench:
“Witnesses are under an obligation to tell the truth. Respect their integrity and do not persuade them to adopt a particular view. Ascertain exactly what the witness can honestly say as to the relevant matters. If necessary, jog the witness’s memory, and ensure that particular matters are not forgotten or overlooked. You may have to assist the witness to express themselves in a way that accords with their real meaning and not in a way which might be misunderstood. At the end of the day the evidence must be the honest evidence of that witness.”
Scragg describes these words as encapsulating perfectly the function of a lawyer in preparing a witness to give evidence.
Final remarks
Richard Scragg was one of my ‘Profs’ instructors many years ago and, in fact, taught me the ethics module of that course. Back then, the ethics module consisted of about a day and a half of lectures.
It is therefore particularly pleasing to see that students and practitioners can get a substantially greater insight into legal ethics these days by reading a copy of The Ethical Lawyer.
Richard Scragg has been a partner in a medium-sized firm, a Profs instructor and also an academic. He started his academic career at the University of Canterbury where he became Dean and Head of Law. He then joined the University of Auckland where he teaches the Legal Ethics course. The Ethical Lawyer has benefited from his wide-ranging experience and, given how valuable this work will be to both students and practitioners, it can confidently be expected that there will be future editions.
The Ethical Lawyer: Legal ethics and professional responsibility, Thomson Reuters New Zealand Ltd, 978-1-988553-36-8, September 2018, 438 pages, $90 (excludes GST and postage).
Garry Williams williams@richmondchambers.co.nz is a barrister in Auckland’s Richmond Chambers and a member of the New Zealand Bar Association’s Training and Diversity and Inclusion Committees.