The Family Court Chief Justice Will Alstergren presided over a case with two of his colleagues as to whether a judge and a barrister who met for drinks, coffee and exchanged multiple text messages while a case was on foot was grounds for ordering a retrial of a protracted family law dispute. Although the defendants claimed their discussions did not involve the “substance” of the case, Chief Justice Alstergren said the contact between the two should never have occurred because it was “premeditated and contrary to the ethical obligations each individual owed to the court”. The Chief Justice believed it was likely a fair-minded individual form a view that the judge could biased, but another two judges disagreed.

Associate Professor of Constitutional Law at Monash University, Luke Beck, has pointed out that in the law, a judge or a lawyer appearing in court should not engage in inappropriate behaviour to ensure “everything looks legitimate” from an outsider’s perspective. He also mentions that communications with a judge should be in open Court so everyone understands what is happening in a case, as “justice has to not only be done, but be seen to be done.”

Ethical obligations and misconduct

Once a lawyer becomes a part of the legal profession, their paramount obligation is to the courts and the administration of justice. This means a lawyer should not engage in behaviour that would undermine the authority and integrity of the courts or judges. The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Solicitors’ Conduct Rules”) regulate ethical behaviour of legal professionals in the industry. Unethical behaviour can cost the legal system and parties an extraordinary amount of money and time.

A solicitor’s fundamental ethical duties can be found under Rule 4.1 of the Solicitors’ Conduct Rules.

• Acting in the best interests of their clients
• Behaving in an honest and courteous manner in all dealings in the course of legal practice
• Delivering legal services competently, diligently and as promptly as reasonably possible
• Avoiding any compromise to their integrity and professional independence

Additionally, a lawyer must not engage in dishonest and disreputable conduct (Rule 5.1) which is likely to a material degree to:

• Be prejudicial to, or diminish the public confidence in, the administration of justice, or
• Bring the profession into disrepute.

Rule 18.1 of the Solicitors Conduct Rules specifies that a solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court. In this case, the lawyer and judge in question had private social catchups away from the court. However, the fact that this conduct happened over the course of a running case is what has lead to questions regarding their behaviour.

Possible penalties

If a lawyer is found to have engaged in professional misconduct, depending on the circumstances, they may be struck off the roll of practising legal practitioners. This means they cannot practise law by giving legal advice, managing legal cases, appearing before the courts or any other legal work. Lawyers who are found to not be a “fit and proper person” to practise law will also likely be ordered to pay costs.

The guidelines and rules regulating conduct of legal practitioners is important to deter any lawyers who may be tempted to act dishonestly and consequently, bring the legal profession into disrepute.

If you require legal assistance, Pannu Lawyers extensively practice in Family Law, Criminal Law, Conveyancing, Commercial Law and Employment Law, and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

The above information is intended as general information and is not intended to be relied on as legal advice