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 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/59 0200.pdf.

Duties of lawyers Officer of the court Loyalty to their client Guide to ethical obligations of in-house lawyers – for non-lawyer colleagues Duties of lawyers Officer of the court Loyalty to their client Confidentiality (similar as for a non-lawyer employee) Put at the client’s disposal all information within the lawyer’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 if the other side is legally represented Cannot provide legal services to related entities if that would conflict with the interest of the employer entity Notes: Duties and obligations for lawyers are set out in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. Many of these come from, and can be duplicated in, a lawyer’s fiduciary duties, the common law and contractual terms of employment. The Solicitors’ Conduct Rules do not treat in-house lawyers differently from other lawyers. Rule 1.1 of the Rules states that the rules apply to all lawyers, while the commentary provided by the Law Council explicitly states that the Rules apply to in-house lawyers. Duties and obligations set out in the Rules include: Rule 3.1 – “A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty”. Court is defined to include certain tribunals, an investigation or inquiry established or conducted under statute or by Parliament, a Royal Commission, an arbitration, a mediation or “any other form of dispute resolution”. Duties to the client Rule 4.1.1 – duty to act in the client’s best interests Rule 4.1.3 – duty of competence and diligence Rule 9 – confidentiality Rules 10, 11 and 12 – duty to avoid conflicts Rule 4.1.5 – duty to obey the Rules and the law Rule 33 – lawyer must not deal directly with the client of another lawyer except in the circumstances set out by the rule, which include dealing with the other party to determine whether the client is represented and by whom, and if the dealing occurs with the prior consent of another lawyer.

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 Lawyers cannot provide legal advice to individual staff members on personal matters Notes: Witnessing documents It is the duty of the lawyer to ensure that they can verify that a document is a true copy by reference to the original document. Failure to do so is a serious matter and can result in a lawyer losing their practising certificate. Witnessing documents should only be done by an in-house lawyer in their professional capacity. It is inappropriate for fellow employees to ask an in-house lawyer to witness personal documents. Destruction of documents Lawyers cannot destroy any documents which may be used in litigation and all documents and files must be kept intact. This is a principle of the common law. Client legal 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 In the past the courts had taken the view that a client is able to claim client legal privilege over legal advice provided by an in-house lawyer only if that lawyer is sufficiently ‘independent’ of their employer/client. More recently, the courts have moved away from ‘independence’ being a separate requirement for in-house lawyers. Instead, courts have preferred the view that provided an in-house lawyer is acting in his or her professional capacity in relation to a professional matter and the confidential communications came into existence for the dominant purpose of legal advice, then client legal privilege will attach to the communications without the need to separately prove independence (see Archer Capital 4A as trustee for the Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098). Section 38 of the Legal Profession Uniform Law (NSW) supports this view by providing that privilege is neither lost nor excluded because the lawyer is acting in the capacity of an officer, director, partner or employee of a law practice or in the capacity of a corporate legal practitioner or government legal practitioner.