Ethics of the Advocate: a Theoretical and Practical Examination, Notes for a Talk to the CPD for a Cause Seminar held at the

Central Park Theatrette, 152-158 St. George’s Terrace, Perthon Tuesday, 12 November 2013

Introduction

Since I come from Australia’s other frontier state, bringinggood will, it might be remiss if I did not say a few words about our recent flurry of legislation reframing our approach to the criminal justice system.

If there is a hidden guiding hand behind events, one might think the strategy is that which might be followed by a kindly perpetrator of personal violence. If I quickly knee you in the crotch, you will feel less pain from the preceding elbow to the nose. Devotees of the Lord Bingham vision of the rule of law and human rights values, more generally, are not quite sure which part of their values system to hold as they rock back and forth moaning in pain.

In this digression from my main theme, I will mention two matters which stand out for me from the recent welter of legislation.

The Executive Decides on Jail Terms

The Criminal Law Amendment (Public Interest Declarations) Act 2013 (“the Declarations Act”) changes the existing situation with what has become known as Dangerous Prisoners legislation (in Queensland, the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Dangerous Prisoners Act”). This legislation around Australiahas installed a carefully safeguarded regime by which courtsmay order that a sex offender may be retained in detention at the expiration of the sentence imposed for the original crime or may be subject to continuing supervision in the community.

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The Declarations Act operates by inserting the new provisions into an Act called the Criminal Law Amendment Act 1945(“the CL Amendment Act”). The legislation provides that the Governor in Council may make a declaration for the further indefinite detention of an offender who is subject to the Dangerous Prisoners Act.1 The Declaration is made on the recommendation of the minister responsible for the legislation who, currently, is the Attorney-General.2 The minister may so recommend if satisfied that indefinite detention is in the public interest.

The power to make the declaration only arises after the judicial procedures for making a Dangerous Prisoners order have been exhausted including any appeal or appeal period.3

The minister, in recommending that indefinite detention is in the public interest, is unconstrained. The minister may have regard to anything thought relevant and is not limited by any provision in any legislation.4

The obviously worrying aspect of the Declarations Act is that the executive rather than the judiciary is deciding on the imprisonment of people who are already unpopular for their previous actions. This has been well expressed by former Supreme Court judge, Richard Chesterman, when he saidthat the Declarations Act represents a strange departure forParliament in taking power from the independent courts to bestow it on the executive. This is particularly strange in that the course of parliamentary democracy, including the great Acts which are enshrined in the Queensland Constitution, has been a struggle to curtail the whim and cruelty of the executive and to establish the rule of law tobe upheld by the judges.5

1 Section 21, CL Amendment Act2 Section 22, CL Amendment Act3 Subsection 21(2) CL Amendment Act4 Section 20, CL Amendment Act5 Richard Chesterman QC, Attorney-General Jarrod Bleijie’s amendment to

the Dangerous Prisoners (sexual Offenders) Act will breed contempt, Courier-Mail, 22 October 2013 at http://www.couriermail.com.au/news/opinion/opinion-

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I think that the legislation is also particularly demeaning to judges who have to follow a process by which they must apply important safeguards and act only on cogent evidence and be satisfied to a high degree of probability, knowing, at all times, that their careful conclusions may be set aside by an elected official, acting upon that official’s view of the public interest.

The VLAD Act

The Declarations Act steals due process and impartial decision making from the already reviled and friendless.

The satirically named Vicious Lawless Association Disestablishment Act 2013 (“the VLAD Act”) has a broader focus.

The VLAD Act, if certain conditions are satisfied, provides for a 15 prison sentence to be imposed on top of the otherwise appropriate penalty for an offence. The 15 year sentence may not be mitigated by parole.6 The otherwise appropriate sentence may be as little as a fine or a good behaviour bond.

The first precondition is that a person commits a declared offence.7 The declared offences include riot (where some property damage occurs); affray; unlawful sodomy (the age ofconsent for gay males is 18 in Queensland); carnal knowledgeor indecent assault; child exploitation offences; procuring or participating in prostitution; bomb hoaxes; dangerous operation of a vehicle; assault causing bodily harm; assaultin interference with freedom of trade or work; robbery in company; and receiving tainted property.8

attorneygeneral-jarrod-bleijies-amendment-to-the-dangerous-prisoners-sexual-offenders-act-will-breed-contempt/story-fnihsr9v-1226744059579 (accessed 22 October 2013)

6 Subsection 7(2) and s.8 VLAD Act7 Subsection 5(1)(a) VLAD Act8 Schedule 1, VLAD Act

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The second precondition is that the person is a participant in the affairs of an association of three or more people no matter how informally they come together.9

The third precondition is that the offence was committed either for the purposes of, or in the course of participating in the affairs of, the association.10

The getout clause is that a person may avoid the prospect ofa bonus 15 years in jail by proving that no purpose of the association involved engaging in declared offences.11

The second getout clause is that the mandatory nature of theadditional sentence may be altered and discretion may be restored to the sentencing court (including the possibility of parole) if the offender offers to dob on his or her matesin a sufficiently convincing manner that the Police Commissioner is disposed to accept the offer.12

This legislation has the potential to affect everyone in Queensland. If a particular person does not come within the purview of the legislation, chances are that someone dear tothem does.

The declared offences include victimless crimes such as sodomy between 17 year olds; engaging in prostitution; or sharing a joint. Even the more serious sounding offences like robbery may occur in much less serious guise so as to be minor offences.

The association definition (which draws on anti-terrorism drafting) is so loose that it can apply to groups of friendsgoing away on the weekend or out on the town. It can apply to trade unions; conservation groups; and the Liberal Party

9 Subsection 5(1)(b) VLAD Act10 Subsection 5(1)(b) VLAD Act11 Subsection 5(2) VLAD Act12 Section 9 VLAD Act

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caucus room. College fraternity groups on their annual frivolities would clearly qualify.

The legislation threatens groups who would never regard themselves as non-law abiding. While it will not always be applied to such groups, it may be used to overbear: “Admit to this, mate, or I will hit you with something that will get you 15 years”. Disadvantaged groups such as migrant and Indigenous communities will be particularly vulnerable. The younger gay population in Queensland and prostitutes who work together for personal safety are at great risk.

And the dob in and escape clause, like most supergrass legislation, is likely to produce corruption of the justice system and spectacularly expensive and unsuccessful trials.

With that summary, can I simply say that I think the VLAD Act is bad policy enshrined in bad legislation.13 A Second Introduction

Having commenced with a digression, I will try now to get back to the advertised program. I will try to deal with three separate topics, each, hopefully, sufficiently closelyassociated with the ethical obligations of advocates to earnyou, with a clear conscience, your CPD points for today.

First, I will attempt to convey the essence of the ethical principles which are important to the practice of an advocate in the Australian legal system. Second, I will convey some of the action and atmospherics of my involvementin acting as a barrister for Dr. Mohamed Haneef, especially,those of my actions which brought my ethics into question. Third, I will look at the way in which the professional misconduct complaint against me was disposed of by the LegalServices Commissioner.13 For further discussion, see

http://www.academia.edu/4939289/The_VLAD_Act_in_Queensland_unjust_and_counterproductive and http://www.independentaustralia.net/life/life-display/are-you-a-vicious-lawless-associate,5876 .

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The Ethics of the Advocate

Bar Associations have always maintained a set of Barristers’Rules.

These documents are intended to lay down the accumulated wisdom going to good and ethical practice as a barrister. Atthe time of my adventures with Dr Haneef, the Barristers Rule 2007 (Queensland) (“the Barristers’ Rule”) was a recently promulgated statutory document made pursuant to the Legal Profession Act 2007 (Queensland) (“the Legal Profession Act”).14

From the 142 sub rules, I have attempted to distil four main themes governing the conduct of barristers as advocateswhich run through the Barristers Rule. They reflect themes relating to the expected conduct of barristers going back some hundreds of years.15

The Cab Rank Rule

The rule that distinguishes barristers from many other professions is the “cab rank rule”. It is designed to ensurethe availability of legal assistance and representation to all in the community. It is designed to ensure that unpopular minority groups; persons accused of the most serious and horrific crimes; and even the government, may have access to the best legal counsel.

Like all aspects of the work of the legal profession, the effectiveness of the rule is limited by the fact that the

14 A slightly amended version of the Rule was substituted in 2011. I have retained the 2007 version as the basis for discussionin these notes so as to provide the true context for my actions asDr Haneef’s counsel. The general approach to the ethical duties ofadvocates remains the same, however, in the later emanation.

15 For example, the cab rank rule is considered by Geoffrey Robertson to have received its first definitive application in John Cooke’s decision to accept the brief to prosecute Charles 1 on 10 January 1649. See The Tyrannicide Brief, Chatto & Windus, 2005.

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cab rank obligation only requires barristers to act for those who can pay their normal fee. Notwithstanding, the professional obligation contained in the cab rank rule goes a considerable way to achieving its objective of providing access to legal services for everyone.

Rule 89 provides that a barrister must accept a brief from asolicitor in a field in which the barrister practises if thebrief is within the barrister’s level of expertise; time constraints do not prevent the barrister from doing the work; the fee offered is acceptable; and no other ethical considerations preclude the barrister from acting. The effectiveness of the principle over the decades may be measured by the extent to which barristers lust after the difficult briefs for the most unpopular people. If an arrestfor a singularly unlovely crime is reported in the media, criminal practitioners everywhere wonder which firm will be engaged and which barrister will be briefed, all the time hoping to be the chosen one.

Duty to the Client

Related to the cab rank rule is the duty to use one’s best endeavours to achieve the best result for the client. As part of the preamble to the Barristers Rule, rule 3 talks ofthe obligation to act “honestly, fairly, skilfully, diligently” and, most importantly, “fearlessly”. The duty ismore fully expressed in rule 16 as an obligation to “seek toadvance and protect the client’s interests to the best of the barrister’s skill and diligence, uninfluenced by the barrister’s personal view of the client or the client’s activities”.

This obligation “to go to war for the client” is not an obligation to merely act as the mouthpiece of the client norsimply to do whatever the client requests the barrister to do. Rule 20 expresses this qualification in these terms: “A barrister must not act as the mere mouthpiece of the client … and must exercise the forensic judgment called for …

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independently after appropriate consideration of the client’s … desires”.

Rule 22 encapsulates a necessary component of the combination of the cab rank rule and the duty to the client.Barristers never express personal opinions in Court. Whethertalking to a judge, a witness, or a jury, the terms used are“I suggest”; “I submit”; “you may well think”; and “I put itto you that” and so on. These are not just cute old-fashioned ways of speaking. They are integral to ensuring that barristers can act for anybody to the best of their experience and ability while not being seen to be expressingpersonal opinions, true or false, about the matters being discussed.

Duty to the Court and to the Opponent

Barristers are expected to conduct their fearless advocacy of their clients’ interests, albeit, subject to a number of countervailing constraints designed to protect the system within which this advocacy is carried out.

Rule 23 states that a barrister must not knowingly make a misleading statement to the court. Rule 24 requires that thebarrister do what is necessary to correct a statement which is found out later to have been misleading. Similar obligations exist with regard to one’s opponent.16

In ex parte matters, when the other side is not represented for any reason, there is an obligation in rule 25 to bring to the court’s attention any matter that is against what thebarrister is trying to achieve for the client.

On questions of law, the obligation is to assist the court not only with cases that support the client’s position but also to bring to the court’s attention any cases that do notsupport the argument that the barrister is advancing.17

16 Rules 52-3.17 See rules 27-30.

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There are duties not to interfere with the evidence which will come before the Court. A barrister may not suggest to the witness what he or she should say to the court.18 This does not stop a barrister assisting a witness by taking the witness through relevant documents or pointing out obvious inconsistencies in the witness’s proposed evidence.19 Essentially, however, it is important that witnesses and clients tell their own stories in court and not a version which the barrister thinks would be more helpful to the client or more convincing to the jury.

Barristers are also restricted in the way they may ask questions and make submissions by the instructions they havereceived. A barrister who has received a confession from a criminal client can still fight for the client’s acquittal. But the barrister cannot ask questions of witnesses which suggest that someone else committed the offence.20 In the same way, the barrister cannot put forward an affirmative case that the client is innocent but may strenuously argue that the evidence has failed to establish that the client isguilty and ask questions consistent with such a strategy.21 This requires subtle but important differences in the way the barrister may conduct the case.

All of these rules are directed to requiring a barrister to fight hard for the client’s interests but to do so in a way that does not corrupt the process from one in which courts hear evidence from witnesses but are assisted in drawing conclusions from that evidence by the skilful advocacy of barristers. Duty to the Public

18 Rule 45.19 Rule 46.20 Rule 35.21 Ibid.

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Statements made in court and as part of the court process carry an absolute privilege.22 This places a barrister (and the client) in a powerful position. It is important, therefore, that there are constraints to prevent misuse of the power.

Rule 36 imposes a four fold duty: not to make allegations orseek orders that are not reasonably justified by the available material; not to make allegations or seek orders that are not appropriate for the robust advancement of the client’s case; not to make allegations or seek orders that are made principally to harass or embarrass; and not to makeallegations or seek orders are made principally to gain collateral advantages for the client that have nothing to dowith what is going on in court.

Allegations of criminal conduct or fraud must not be made indocuments being drawn by the barrister unless a three fold test is satisfied: there must be a proper factual basis for the allegations; the evidence supporting that factual basis would be admissible; and the client must make an informed decision that the allegations are to be made.

Other rules place similar restrictions on the questions which may be asked in cross-examination of a witness and on statements which may be made about witnesses in submissions or addresses to the court.23

These four themes describe the ethical matrix within which barristers conduct their work. They form the background against which the controversy concerning my conduct in acting for Dr. Haneef arose.

Acting for Dr. Haneef: The Beginning

It was a great privilege to be asked to act for Dr. Haneef.

22 For example, see s.27 Defamation Act 2005 (New South Wales).23 Rules 40-44.

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On the morning of Friday, 6 July 2007, as I was preparing togo off to the Industrial Court to argue a workers’ compensation appeal, my soon to be instructing solicitor, Peter Russo, rang up in his usual laconic way and asked if Icould help him construe the provisions of part 1C of the Crimes Act 1914 (Commonwealth). He told me he was acting for Dr. Haneef, the young Gold Coast doctor whose alleged misdeeds had been filling the papers since Monday of the same week.

We arranged that Peter would come to my chambers, that evening, at 6.00pm. He came with his printout of part 1C which had been given to him, the previous evening, by the Australian Federal Police officers who were involved in the investigation. I looked at the print out and I had similar difficulties to Peter. It was difficult to figure out the system of part 1C.

After Peter left, I found as many articles as I could on thechanges to Australian law made in the wake of the attacks that took place on 11 September 2001. It was on Sunday morning, at home, that I realised what the problem was. I, at least, had been looking for the preventive detention provisions (which are included in the Criminal Code 1995 (Commonwealth)24). I had particularly been looking for the provisions that said that the detention without charge was aState secret carrying five years imprisonment if anyone whispered to a soul about it.25 How could it be, I thought, that it was all over the newspapers if it were so secret?26

24 See division 105, commencing at s.105.1.25 See s.105.41(2) Criminal Code 1995.26 In summary, the preventative detention provisions allowed a

person to be detained and questioned if the authorities believed that a terrorist act was imminent and to obtain information to prevent that event from occurring. These provisions (with their strict secrecy provisions) did not require the person being detained to have actually committed any offence. The main concern was the information that the person could provide. The provisions in part 1C of the Crimes Act, in contrast, provided for a modification to the normal process of dealing with a person suspected of having committed a criminal offence. They were

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Once I realised that preventive detention was part of the 2005 amendments and I was dealing with the result of the 2004 amendments, everything became easier.

This was lucky because, starting the next day, Monday, I would be preparing to argue in three separate hearings aboutthe contents of part 1C. What stuck out, on my reading, was a failure by the AFP to comply with natural justice in applying part 1C.

From Detention to Visa Cancellation: Not Free of Charge

Things moved quickly in Dr. Haneef's case. Three attempts toargue natural justice and I had ensured that Dr. Haneef had been detained for the length of the AFP’s original application. Then the police backed off a little and decidedto interview Dr. Haneef, again, instead of continuing with the application for detention time on which no final decision had been made.

Despite that apparent encouraging turn of events, by 8.00am,the next day, Dr. Haneef had been charged with the offence of assisting terrorist acts27 and he was being taken to the Brisbane Magistrates Court to make his first court appearance after eleven days, all up, of detention without charge.

Since Dr. Haneef had now been arrested, we had the opportunity to make a bail application. There were special

dependant upon a lawful arrest. Once the person had been arrested,that person could be detained for the purpose of questioning before being charged with an offence and being placed in the control of the courts. The part 1C process did not carry strict secrecy provisions.

27 Section 102.7(2) Criminal Code 1995. The arrest had been for breach of s.102.7(1). The difference between the two subsection isthat, in the subs.(1) offence, the mental element is knowledge that the organisation (which you assisted) was a terrorist organisation. The subs.(2) offence involves mere recklessness as to that fact.

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rules applying to bail for a terrorist offence of which I had just become aware.28 I had to satisfy the Court that exceptional circumstances existed.

After the initial argument, the magistrate adjourned for a couple of hours to allow the prosecutor and defence counsel to come back at 3.30pm to provide further assistance concerning the meaning of exceptional circumstances. Then Her Honour reserved her decision until the following Monday.

The decision was handed down shortly after 9.30am. Our application for bail had been successful. We needed to obtain sureties amounting to $10,000 but that could be achieved. The unbelievable had happened. Dr. Haneef had beengranted bail for a terrorism offence. Three hours later, I had repaired to my office. A journalistrang me. I listened to Mr. Andrews’ press conference over the phone as Mr. Andrews announced that he had decided to cancel Dr. Haneef's visa. It seemed and was extraordinary. Visas are cancelled, from time to time, for having committeda criminal offence. But that only occurs after someone has been convicted and has served much of their sentence. To cancel someone’s visa (and, thereby, place the person in detention) when no trial has been heard and after the Court had concluded that it was fine for the person to be in the community pending the trial seemed to me outrageous.

Releasing to the Winds

My colleague, Peter Murphy,29 had previously worked with Mr.Hedley Thomas, a journalist with the Australian, a national newspaper. Mr. Thomas rang Peter and told him that he would like to speak to me if I was willing to talk to him.

28 Section 15AA Crimes Act 1914 provides that a court may not grant bail in a terrorism offence unless the Court is satisfied that exceptional circumstances exist to justify bail

29 Now a Justice of the Family Court

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I agreed and, in the conversation, Mr Thomas told me a couple of things. He said he believed, from listening to government spokespeople, that the government knew that the case against Dr. Haneef was weak. He said that, despite Peter (Russo’s) fabulous work answering media questions, thegovernment’s relentless PR machine was starting to convince the public that Dr. Haneef must be guilty.30 He asked if he could see some of the documentation in the case. I allowed Mr. Thomas to read Dr. Haneef's record of interview. However, I stated that this had to occur in my office and that Mr. Thomas was not allowed to use the information unless and until I gave him permission to do so.

Then the visa was cancelled.

I thought that the effect of this, including Mr. Andrews’ continuing efforts to explain and sell his decision, had been very damaging for Dr. Haneef's reputation and prospectsin any future trial. Dr. Haneef was not just an accused person. He was someone whose character was so bad that his visa must be cancelled and he must be locked up. Even if theCourts found Dr. Haneef innocent, Mr. Andrews was saying, Dr. Haneef must be expelled from the country. And this had come after acres of media space had been filled with damaging speculation about the events in London and Glasgow and Dr. Haneef's assumed involvement in those events.

I made a decision to release Dr. Haneef's record of interview. It was an uncensored statement of the questions that he was asked and the answers he had given. Dr. Haneef had been asked why he was leaving the country on the night he was arrested at the airport. He explained that he was returning to see his then seven day old daughter who had been born in his home town of Bangalore but that he also wanted to clear up questions about an old phone card of his which was said to be linked to the terrorist events in London and Glasgow.

30 This is my paraphrase of what Mr. Thomas said.

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He was asked why he was leaving on a one way ticket. He explained that he had asked his father-in-law to buy the ticket and it was his father-in-law’s decision to buy the ticket one way only. Dr. Haneef had arranged a week’s leave from his job at the hospital. Dr. Haneef was asked about various financial payments shown in his notebooks and bank accounts. He carefully explained loans to him by relatives and friendly doctor colleagues and repayments made so that every transaction was carefully explained. It was a most impressive explanation by a suspected person that matters that caused the police concern had perfectly simple and innocent explanations.

The record of the interview would show, I reasoned, the basis of his arrest and charge and his explanations of the matters raised against him in the interview. The interview, I thought, provided a dramatic but, ultimately, fair presentation of the facts.

That afternoon, I put the transcript in an envelope and put it in a taxi bound for Newspaper House at Bowen Hills, Brisbane, the building where Queensland employees of the Australian had their offices.

The record of interview was covered broadly in the media. However, the release of the document caused a lot of criticism to be directed at Dr. Haneef's lawyers as a group.Accordingly, I decided to confirm publicly that it was, indeed, I who had released the document. This decision appears to have borne fruit. My defence of my decision to release the record of interview also received broad coverage.

Looking back, I think that day was important. There had beena press campaign by the government. The target of that campaign was Dr. Haneef. The government then attacked the anonymous person who had released the document. When the anonymous person struck back, their criticism appeared

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overblown and self-serving. The momentum changed that day and the government was, thereafter, on the back foot.

The Complaints

A few weeks later, two people complained to the Legal Services Commissioner about my conduct in releasing the record of interview. One was Russell Biddle, a solicitor practising just south of Brisbane. The other was the Commissioner of the Australian Federal Police, Michael Keelty.

The complaints were based upon rule 60 of the Barristers Rule. Rule 60 is one of those rules intended to prevent enthusiastic advocacy on the part of a barrister from adversely impacting upon the integrity of the courts’ processes. The rule is designed to restrict the extent to which a barrister may conduct the client’s cause in the public arena.

Rule 60 provides as follows:

“A barrister must not publish or assist in the publishing ofmaterial concerning a current proceeding except by supplyingonly …”

The exceptions relate to court pleadings which have been filed and served (the competing claims of the parties) and then other documents such as affidavits which have actually been published in open court. The exceptions did not extend to the release of a record of interview which, at that stage, had not seen the inside of a courtroom.

The Barristers Rule had commenced the day before Dr. Haneef's arrest. I was unaware that a new codification of a barrister’s duties was in place. I had thought, carefully, about the propriety of what I had decided to do. I had considered objectives similar to those on which rule 60 is based. I was keen to ensure that my action did not prejudice

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a future court hearing either by favouring my client or by favouring the Crown.

I satisfied myself on this point before deciding to release the document. This was because the document would be produced in any committal hearing that was to take place. (In fact, I could have tendered it at the bail hearing.) Since the committal hearing was closer to any possible trial, my releasing of the document, earlier, would have less impact than would the document becoming public at the committal.

Second, I was very conscious that I was acting without discussing the matter with my instructing solicitor or my client. This was quite unusual.31 I formed the view that there was immense pressure on my solicitor and on Dr. Haneef, himself. I foresaw that there might be considerable criticism of the release of the document. I took the decision that it was better for my solicitor and my client if I acted without their knowledge so that I would be the only person to bear the brunt of any such criticism.

Overall, my motivation was to combat the prejudicial effect of the government’s media campaign and of the even more detrimental impact of the cancellation of the visa.

The Legal Services Commissioner

On 1 February 2008, the Legal Services Commission made a decision on the complaints. The conclusion was reached that my conduct had breached rule 60.32

This did not mean, however, that I was guilty of professional misconduct. Historically, the courts have defined the meaning of professional misconduct in the courseof hearing and deciding complaints against lawyers. The

31 Rule 60 requires that the permitted documents only be made public by the barrister with the consent of the client.

32 Decision, paragraph 25

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language used has also been used in respect of other professions including the medical profession.33 The cases have tended not to lay down detailed rules as to what is badconduct on the one hand and what is permissible on the other. Rather, formulations which refer to the standards of right minded fellow professionals have been used allowing the courts to deal with complaints on a case by case basis.34

The Legal Profession Act has retained the case by case approach to misconduct by lawyers. Section 227 states that the Barristers Rule is binding on barristers. It goes on to say, however, that failure to comply with the Rule is only “capable of constituting professional misconduct”. (Emphasisadded.). That is: breaching the requirements of the Rule is not necessarily misconduct. Thus, the Commission still had to consider the merits or otherwise of my conduct in releasing the record of interview.

The Commission dismissed the complaints.35 It found that there was no reasonable likelihood that a hearing would result in a finding against me.36

The Commission referred to a number of factors as persuasivein coming to its conclusion. This included a finding that the publication did not interfere with the administration ofjustice in fact; that I did not comment on the content of

33 Most cases on professional misconduct of lawyers refer to Allinson v General Medical Council 1840 1 QB 750, a nineteenth century case concerning the misconduct of a medical practitioner.

34 For example, in Law Society of New South Wales v King [2002] NSW ADT 170, the following passage from Allinson’s case was cited with approval: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which could be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency, then it is open to the general medical council to say that he has been guiltyof "infamous conduct in a respect".

35 Decision, paragraph 3836 The Legal Profession Act provides for special tribunals to

hear disciplinary complaints against lawyers.

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the document but merely released it; that the action was a minor breach of rule 60; and there was no evident mischief with the premature publication of the record of interview.

A Second Conclusion

Elements of my experience will be shared by criminal defenceadvocates in their work in the future. We live in an age where the media has a large and pervasive influence on the way we think and feel. Some defendants, those charged with terrorist offences and those charged with sexual offences against children,37 commence with severe prejudice among thegeneral community much of it generated by media conduct overdecades. Politicians also make statements which lead to an atmosphere of heightened prejudice.

Against this background, the role of representing a client in a fearless and energetic way cannot be restricted merely to the inside of a courtroom. Different advocates will deal with these challenges by taking such action as, in their judgement, will be effective and appropriate.

Those who write the ethical guidelines for advocates need toallow for circumstances of this kind and provide flexibilityfor those judgments to be made professionally and in good faith. A failure to do so will leave such guidelines in an imaginary world where the real world challenges faced by advocates are not provided for. Hopefully, Law and Bar Associations can rise to meet the challenge.38

37 And, in recent times, those who use two wheeled, motorised forms of transport 38 The Barristers Rule 2011 (Queensland) now deals with these

matters in subrules 75 – 78. the approach is slightly changed. However, a barrister is subject to the same restrictions as in the2007 Rule except that a client may be advised as to ways in which the client may seek to present their own position concerning the case. I doubt that this will be of much assistance in many real world situations faced by defence counsel. The rules are in the schedule hereto.

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Stephen KeimChambers8 November 2013

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Ethics of the Advocate: a Theoretical and Practical Examination, Notes for a Talk to the CPD for a Cause Seminar held at the

Central Park Theatrette, 152-158 St. George’s Terrace, Perthon Tuesday, 12 November 2013

Schedule

Rules 75-78, Barristers Rule 2011 (Queensland)

Media Comment75. A barrister must not publish or take any step towards the publication of any materialconcerning any proceeding which –(a) is known to the barrister to be inaccurate;(b) discloses any confidential information; or(c) appears to or does express the opinion of the barrister on the merits of acurrent or potential proceeding or on any issue arising in such a proceeding,other than in the course of genuine educational or academic discussion onmatters of law.1476. A barrister must not publish or take any step towards the publication of any materialconcerning any current proceeding in which the barrister is appearing or anypotential proceeding in which a barrister is likely to appear, save that:(a) a barrister may supply answers to unsolicited questions concerning a currentproceeding provided that the answers are limited to information as to theidentity of the parties or of any witness already called, the nature of theissues in the case, the nature of the orders made or judgment given including

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any reasons given by the court and the client’s intentions as to any furthersteps in the case;(b) a barrister may, where it is not contrary to legislationor court practice and atthe request of the client or instructing solicitor or in response to unsolicitedquestions supply for publication –(i) copies of pleadings in their current form which have been filed andserved in accordance with the court’s requirements;(ii) copies of affidavits or witness statements, which have been read,tendered or verified in open court, clearly marked so as to show anyparts which have not been read, tendered or verified or which havebeen disallowed on objection;(iii) copies of transcript of evidence given in open court, if permitted bycopyright and clearly marked so as to show any corrections agreedby the other parties or directed by the court; or(iv) copies of exhibits admitted in open court and without restriction onaccess.77. A barrister:(a) may if requested advise a client about dealings with themedia but not in amanner which is calculated to interfere with the proper administration ofjustice, and(b) will not have breached Rule 75 or Rule 76 simply by advising the clientabout whom there has been published a report relating to thecase, and whohas sought the barrister’s advice in relation to that report, that the client may

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take appropriate steps to present the client’s own position for publication.

Stephen KeimChambers8 November 2013

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