Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Notes:

Outline Lawyers’ Ethics Statement Role of in-house lawyers Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Outline Lawyers’ Ethics Statement Role of in-house lawyers Duties of lawyers Common issues in-house lawyers face Notes:

Lawyers’ Ethics Statement Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Lawyers’ Ethics Statement Serve the interests of justice and the client Act competently and put client’s interests above their own Act for mutual benefit of the profession Avoid conflicts of interest Maintain high standards of integrity, honesty and fairness Notes: Law Society of New South Wales Ethics Statement, proclaimed by the Council of the Law Society of New South Wales 28 May 2009: We acknowledge the role of our profession in serving our community in the administration of justice. We recognise that the law should protect the rights and freedoms of members of society. We understand that we are responsible to our community to observe high standards of conduct and behaviour when we perform our duties to the courts, our clients and our fellow practitioners. Our conduct and behaviour should reflect the character we aspire to have as a profession. This means that as individuals engaged in the profession and as a profession: We primarily serve the interests of justice. We act competently and diligently in the service of our clients. We advance our clients' interests above our own. We act confidentially and in the protection of all client information. We act together for the mutual benefit of our profession. We avoid any conflict of interest and duties. We observe strictly our duty to the Court of which we are officers to ensure the proper and efficient administration of justice. We seek to maintain the highest standards of integrity, honesty and fairness in all our dealings. We charge fairly for our work.

Role of in-house lawyers Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Role of in-house lawyers Same ethical rules apply as for all other lawyers Primary obligation is to uphold the law as an officer of the court In-house (corporate) lawyers do not have range of clients, but provide legal services to their employer corporation Their fiduciary duties are to their client, their corporate employer, not to persons who manage their client Duty to ‘protect the company from legal risk’ if company ‘officer’ Notes: The High Court of Australia considered the responsibilities of General Counsel who are also company officers in the case: Shafron v Australian Securities & Investments Commission [2012] HCA 18. The Law Society of New South Wales Corporate Lawyers Committee’s publication, Handy Hints for In-house Counsel, discusses the role of in-house lawyers - http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/590200.pdf.

Duties of lawyers Officer of the court Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Duties of lawyers Officer of the court Loyalty to their client (similar as for an employee) Confidentiality (similar as for a non-lawyer employee) Put at the client’s disposal all information within the solicitor’s knowledge Give priority to client’s interests In-house lawyer is unable to talk directly to other side without consent or their legal representative being present Notes: Sources of duties and obligations for corporate lawyers include: Legal Profession Act 2004 s.496 - unsatisfactory professional conduct s.497 - professional misconduct s.498 - breaches of the Act that can result in findings of breach of professional duties Revised Professional Conduct and Practice Rules 1995 Common law concept of “disgraceful & dishonourable” conduct as described by Lord Escher MR in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750; [1891-94] All ER Rep 768

Common issues in-house lawyers face Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Common issues in-house lawyers face Must attest true copy only from original Can only witness if see person sign Documented information is discoverable Lawyers cannot destroy documents which may be used in litigation Assist clients in making legitimate claims for privilege Role and advice to client must be independent Notes: Witnessing documents It is the duty of the solicitor to ensure that an original document is produced. Any breach of this obligation may result in a finding of unprofessional conduct or professional misconduct. This is a matter of common law. Falsely certifying as to the proper execution of documents is treated seriously by the courts and disciplinary tribunals in applying the common law test of professional misconduct. Australian case law indicates that the penalties include reprimand, monetary fines and striking off the roll of solicitors. Destruction of documents Lawyers or their staff cannot destroy any documents which may be used in litigation and all documents and files must be kept intact. The duty of an Australian legal practitioner is described in the Legal Profession Regulation 2005 (NSW) under Regulation 177. This is in addition to the disciplinary powers available under the Legal Profession Act 2004 (NSW). Legal Professional Privilege The privilege belongs to the employer and not the lawyer. As a matter of common law, only the employer can waive that privilege and the lawyer has a duty to ensure that a valid claim for it is not lost. Independent advice Whether an in-house lawyer is in a position to provide professionally detached, independent, legal advice to the employer entity will be a matter of fact in each instance but relying on recent case law, the position can best be summarised by quoting Justice Graham in Seven Network Limited v News Limited [2005] 225 ALR 672 at 15 – “An in-house lawyer will lack the requisite measure of independence if his advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied.”