1. ETHICS DUTIES OF IN-HOUSE COUNSEL www.lsbc.vic.gov.au

2. OUTLINE Who is the Regulator? In-House Counsel: common ethical challenges – Undertakings – Confidentiality – Legal Professional Privilege – Conflict of Interest – Conduct www.lsbc.vic.gov.au

3. Victorian Legal Services Board and Commissioner - independent statutory entities - regulate lawyers Consumer interests dominate Two bodies; work as one www.lsbc.vic.gov.au Who is the Regulator?

4. Legal Services Board Financial management, licensing and standards Protection of consumers Oversight of trust accounts www.lsbc.vic.gov.au

5. Legal Services Commissioner Handle complaints and look at systemic issues Educate the legal profession Educate the community www.lsbc.vic.gov.au

6. Undertakings Sacrosanct: RPA Alert #8, LSB/LSC February 2014 Promises of action, either explicit or implicit, must be honoured Failure undermines trust and reputation Officer of the court www.lsbc.vic.gov.au

7. Undertakings Rules 22 & 27 - Professional Conduct and Practice Rules 2005 – breach may constitute misconduct 2013 – 4 lawyers guilty of misconduct for failing to deliver on undertakings Legal Services Commissioner v Kaine (Legal Practice) [2013] VCAT 1077 - breach of an undertaking to another solicitor www.lsbc.vic.gov.au

8. Confidentiality Fundamental duty from 3 sources: – Professional Conduct and Practice Rules 2005: rules 1.1 & 3 – Retainer contract obliges confidentiality – Equitable doctrine that a confidant must not use information for purposes inconsistent with its communication www.lsbc.vic.gov.au

9. Legal Professional Privilege Will not protect non legal communications - avoid mixing To claim privilege, must show independence and maintain professional relationship - what does this mean? Limit dissemination Don’t act for employees if duty to organisation is conflicted Only claim privilege where it actually exists www.lsbc.vic.gov.au

10. Conflict of Interest Personal v client/employer/shareholder interests – Hospitality and gifts – Herald Sun test Professional Conduct and Practice Rules 2005: rule 8 – Acting for more than one party Rule 9 – Avoiding Conflict of Interest www.lsbc.vic.gov.au

11. Conflict of Interest Rule 11 – Practitioner and Client - Borrowing Transactions – Exemptions: can borrow from trustee companies and employer – Rule 11.2 Rule 32 – Conducting Another Business Rules 33 & 34 – Commissions and Client Referral www.lsbc.vic.gov.au

12. Conduct – Behavioural Standards Play the ball, not your opponent (RPA Alert #6, LSB/LSC November 2013) Rules 21 & 28 – Communications Avoid aggressive, provocative and offensive language in communications with other practitioners and clients www.lsbc.vic.gov.au

13. Conduct - Use and Abuse of Legal Process Duty to the Court paramount - overrides duty to the client Officer of the Supreme Court – duty of honesty and candour Rule 14 – Frankness in Court Civil Procedure Act 2010 (CP Act) - Overarching obligations www.lsbc.vic.gov.au

14. Conduct - Use and Abuse of Legal Process Supreme Court case studies - practitioners ordered to pay opposing parties costs personally under CP Act: – Yara Australia Pty Ltd & Ors v Oswal ([2013] VSCA 337, unreported, delivered 27 November 2013) by Redlich & Priest JJA & Macaulay AJA – Hudspeth v Scholastic Cleaning & Consultancy Services and Ors ([2014] VSCA 78, unreported, delivered 16 April 2014) by Warren CJ, Tate & Whelan JJA www.lsbc.vic.gov.au