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This paper is in draft form. The author has prepared the paper for the conference and it is her intention to modify and complete the paper after the conference. Please obtain Helen’s consent prior to using information contained in this paper. Thank you. CONFERENCE OF REGULATORY OFFICERS HOBART, 6 November 2015 ‘Turn away’ or ‘triage’. Engaging with conflicts of interest in the bush. Helen McGowan Doctoral researcher The Australian National University College of Law E helen.mcgowan@anu.edu.au M (+61) 417 245 710 INTRODUCTION This paper draws on recent research to explore how the geographical location of legal practice can influence a lawyer’s ethical decision making. Previous socio legal research by Tomasic and Coverdale identified that conflicts of interest are more likely to occur in country communities compared to city legal practice.1 The research which is the subject

• f this paper has identified a co-relation between geographical remoteness and the way

that lawyers identify and respond to conflicting interests. The author contends that the geographical location of a legal practice, with fewer alternative legal services available to refer conflicted clients, creates ethical tension for the lawyer who is under pressure to ‘bridge the justice’ gap.2 This research suggests that there is less screening for conflicts, and more ‘triaging’ of client requests, in remote areas. Some research participants explain their practice as necessary to ensure they can service their communities. This justice gap will continue and this ethical tension will remain if Australian lawyers and regulators ignore this under resourced cohort of Australian lawyers. The author suggests that this research finding invites a collegial and compassionate response from regulators. Such a response could include fostering the pragmatic exploration of referral pathways for conflicted clients, designing ‘continuing professional

1 Roman Tomasic, Law, Lawyers and the Community. Some observations from a survey of community

attitudes and experiences. (The Law Foundation of New South Wales, 1976); Richard Coverdale, 'Postcode

• Justice. Rural and Regional Disadvantage in the Administration of Law in Victoria' (Deakin University,

Centre for Rural Regional Law and Justice, July 2011)

2 ‘Bridging the justice gap’ is a term used in the Australian Government Productivity Commission, Access to

Justice Arrangements. Draft Report (April 2014)

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

development’ sessions to develop skills in triage assessment, and encouraging ‘data hygiene’ to allow the ‘unbundling’ of legal services.3 DE CENTRED REGULATION OF ETHICAL PRINCIPLES Australian lawyers hold themselves and each other accountable for ethical conduct. Regardless of geographic context, the same uniform professional conduct rules and principles apply. This ethical uniformity has been strengthened through a national approach to rule setting with the 2002 iteration of the ‘Model Rules’, followed more recently by the 2011 Australian Solicitors Conduct Rules. A corollary to this expectation of ethical uniformity is that lawyers should make the same ethical decisions regardless of context. This expectation is reinforced through the common law test for assessing appropriate professional conduct. This common law test is that a lawyer’s conduct is judged by their peers and assessed against an objective test of public perception. This test was established in the case of Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.4 The often-cited words used by Lord Esher in the Allinson test are:

If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

In other words, how is the behaviour viewed by professional colleagues? Although Allinson involved the conduct of a medical practitioner, the professional misconduct test was extended to the legal profession 18 years later in Re a Solicitor: ex parte Law Society 1912 KB 302. This common law test for professional misconduct has been adopted into Australian law in 1960.5 The pivotal role of the judgment of peers was restated in Adamson v Qld Law Society [1990] 1 Qd R 498 when the court stated:

The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

This common law test for professional misconduct has been codified in the regulatory

• framework. Within Australia, it is defined in the model Legal Profession Acts, the

Australian Solicitors Conduct Rules and the Legal Profession Uniform Law as:

(a) unsatisfactory professional conduct …where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct … whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the solicitor is not a fit and proper person to engage in legal practice. 6

3 Productivity Commission above, n 2 ¡ 4 The case related to the statutory interpretation of s29 of the Medical Act ‘guilty of infamous conduct in any

professional respect’ and the test of deciding what was infamous conduct was developed by the then Master of the Rolls, Lord Esher

5 Allinson endorsed by Australian courts on many occasions. Re a Solicitor [1960] VR 617 at 620 Dean J;

Re Thom (1962) 80 WN (NSW)968 at 969 FC Re Veron (1966) 84 WN (pt 1) (NSW) 136 at 143; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203) per Glass and Samuels JJA; Adamson v Qld Law Society Inc [1990] 1 Qd R 498 at 507 per Thomas J

6 ASCR glossary, s 296 – 297 Legal Profession Uniform Law ¡

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

This common law test of professional conduct facilitates the dynamic evolution of ethical

• standards. This test can resolve specific questions which arise from lawyer’s conduct. For

example ‘How should a lawyer respond when deciding if they have a conflict of interest?’ This evolving standard in the common law test is helpful in this particular issue, when the lawyers respond differently, based on geographic location. For example, a lawyer practicing in a well-resourced urban community may have alternative legal services to refer conflicted clients. By contrast, if a lawyer is practicing in a remote part of Australia with no alternative legal services, their ethical response may be different. As discussed later in this paper, the remote lawyer may not conduct a threshold ‘screen’ for conflicting interests and may choose to engage with the conflicted client through a ‘triage assessment’. Both these behaviours may be seen as unethical in an urban legal practice. Perhaps the urban professional peers would urge their colleague ‘Just say no!’. Using the Allison test, collegial communities of practice, consisting of regulators and peers can define the standard for remote legal practice. This suggestion for an inclusive, collaborative approach to professional regulation was recommended in the 2014 Kyle and Coverdale Victorian research Conflicts of Interest in Victorian Rural and Regional Practice. The Deakin University researchers found that the more geographically remote the lawyer’s practice, the more concerned the respondent was about the likelihood of a complaint being made against them.7 Although Australian data on complaints or disciplinary results is not analysed by geographical location, the information from regulators is that country lawyers are not over represented within the complaints system.8 Kyle and Coverdale’s findings indicate a connection between remoteness and country lawyers perception of the regulatory ‘fit’. This dissonance between regulators and regulatees is called ‘centre-periphery’ tension. Kim Economides, the current president of the International Association of Legal Ethics, and Dean of the Flinders Law School, suggests that the practice of ‘rural proofing’ is an antidote to the problem of ‘centre-periphery’ tension. Rural proofing refers to the need to consider the regulatory ‘fit’ and the impact of policy on rural communities, prior to its

• implementation. The aim of rural proofing is to shape policy to ensure a better fit. This

‘shaping’ could occur through a strategic consultation process. Economides has suggested this policy concept of rural proofing can better attune legal services to the needs and expectations of rural communities.9 The idea of rural proofing has been given strong support in Kyle and Coverdale’s research. Eighty-five percent of respondents agreed that ‘the circumstances of rural and regional practitioners require greater consideration when developing professional rules in relation to conflict of interest’.10

7 ¡Louise Kyle, Richard Coverdale and Tim Powers, Conflicts of Interest in Victorian Rural and Regional

Legal Practice (Deakin University, 2014),12, 15, 48.

8 Regulator annual reports, personal communication. 9 Kim Economides, 'Strategies for Meeting Rural Legal Needs-Lessons from Local, Regional and

International Experience' (2010) National Rural Regional Law and Justice Conference (Ref Economides 2011 Deakin 48, 54-55)

10 Kyle and Coverdale above n 7.

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Julia Black, whose work was influential in shaping the legal regulatory framework in the United Kingdom, describes the historically ‘centred’ approach to regulation.11 She categorises the variety of available regulatory approaches as either ‘centred’ or ‘decentered’. The centred approach reserves the regulatory function to the overarching authoritarian regulator, which defines and enforces the norms. This approach is characterized by ‘bright line’ rules of professional conduct which provide detailed directions to guide lawyers. In a centred system, the regulator uses a ‘command and control’ approach to make sure regulatees follow the prescriptive rules. An example of this centred regulation is the legal profession’s approach to trust account maintenance. The trust account rules are prescriptive and the trust account inspector visits annually to conduct a compliance audit. By contrast a ‘decentered’ approach devolves regulatory power to the individual lawyer and fosters a collaborative relationship between the regulator and regulatee. The current form of the Australian Solicitors Conduct Rules is an example of the emergence of this decentered approach. The Rules have been promoted as ‘principles based regulation’. The rules state the desired outcome to be achieved by the lawyer with freedom for the regulatee to ‘find their own way there’. Compared to the former rules, there is an absence of prescriptive detail. An example of this decentred regulatory approach is the regulation of ‘incorporated legal practices’. ILPs are required to develop ‘appropriate management systems’. The regulator has the power to conduct reviews and reports on these systems. This decentered approach to the regulation of incorporated legal practices has led to a decrease in complaints12 and a cultural change in participating practices.13 The aim of a decentered approach is for both regulator and regulatee to collaborate on developing strong ethical practices. At the conclusion to this paper, this recommendation that the regulators adopt a collegial, decentred regulatory approach to working with regional, rural and remote lawyers is explored in the ‘call to action’. THE AUSTRALIAN SITUATION With the adoption of the principles based approach to regulation, the lawyer’s duty to the administration of justice is paramount. Regardless of context, regardless of geographical place of practice, lawyers must concern themselves with the administration of justice. This paramount duty transcends individual interests. The research considered how lawyers, practicing at the front line in remote communities, used their ethical judgment to assist in the administration of justice. Earlier research has described the inherent flaws and failures within our imperfect and under resourced legal system. There are communities in remote Australia which have no

11 ¡Julia Black, 'Critical reflections on regulation' (2002) 27 Australian Journal of Legal Philosophy, 1 ¡

12 Christine Parker, Tahlia Gordon and Steve Mark, 'Regulating Law Firm Ethics Management: An Empirical

Assessment of an Innovation in Regulation of the Legal Profession in New South Wales' (September 2010) 37(3) Journal of Law and Society

13 John Briton and Scott McLean, 'Lawyer Regulation, consciousness-raising and social science' (15-17 July

2010) Stanford Law School International Legal Ethics Conference IV

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resident lawyers14 or police officers15 and, if there is a court servicing that region, the court’s visits may be rare16 and the cost of accessing that forum, prohibitively expensive. The Australian legal system depends on the lawyer’s ability to navigate multiple interests and duties, yet the lawyer must be always mindful of their primary duty to the administration of justice. In order to bring tangible expression to the rule of law’s aspirational ideal of fair treatment and fair outcome, lawyers must respond to the context

• f practice. This contextual lawyering activity requires ethical judgment and a pragmatic
• approach. It is an assumption of this paper that a critical component of the ‘rule of law’ in

regional, rural and remote Australia is the lawyering activity. One female master lawyer who participated in the research worked in the private sector in remote Australia. She described the law as her ‘candle’ to light the way:

I am just trying to stick with the basics. I am not a really clever person. I am not really smart

• person. I just think that law is about something really simple and basic. It is about what the

common people think is right. That is how the common law became the common law. What we all believe is reasonable and if you just stick with “Well what would the common man think is reasonable here?” For me, sticking with that, means that the candle that is the light that law emanates from, does not go out. You just stick with that.

As indicated by this research participant, country lawyers are the legal gatekeepers for their communities and they work across a sparsely populated continent. Through their lawyering activity, country lawyers endeavour to bring place-based justice to their communities. Although the word ‘country’ implies homogeneity across non-metropolitan Australia, country communities are characterised by their diverse legal needs. Numerous inquiries into access to justice have noted a service delivery disparity based on geographical

• remoteness. The term ‘postcode justice’ refers to this disparity. The more geographically

remote the location of the lawyer’s work the more likely that the legal system is characterised by disadvantage and inequity. This legal disadvantage was identified in the 2012 Australian survey of legal need which was commissioned by National Legal Aid and conducted by the New South Wales Law and Justice Foundation. This LAW Survey researched 20,716 people across Australia with the aim of understanding the range of legal problems experienced, actions taken, sources of advice and outcomes achieved. The LAW Survey findings were coded for remoteness using the ARIA. The results revealed a co-relation between geographic remoteness and ‘problem resolution behaviour’. Problem resolution behaviour refers to the awareness of, and access to legal services. Within geographically remote communities survey respondents were less likely to use legal advisors and there was a reduced likelihood of ‘taking action’ and ‘seeking professional advice’. While 17.7 percent

• f problems resulted in the use of legal advisers in ‘inner regional’ areas, the figure was

just 10.6 percent in very remote areas. The percentage of problems resulting in ‘no

14 Michael Cain and Suzie Forell, 'Recruitment and retention of lawyers in regional, rural and remote New

South Wales' (2010)

15 Council of Australian Governments, 'National Indigenous Reform Agreement (Closing the Gap). ' (2009) 16 Coverdale 2011 above n1.

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action’ increased from 17.6 percent in inner regional areas to 23 percent in very remote areas’.17 The LAW Survey authors noted that:

people in more remote areas may be less aware of legal services and less likely to consult a lawyer because of the paucity of legal services in their local community.18

This analysis of legal need indicates, that although the incidence of legal need is uniform across Australia, geographic remoteness affects problem resolution behaviour. There are distinctive governance and service delivery challenges which arise in such a vast but sparsely populated continent. The combined population in ‘country’ or ‘regional, rural and remote’ Australia is just under 7 million, or just over a third of Australians live in the 91 per cent of the continent defined as ‘country’ Australia.19 Table 1 below shows that 20 per cent of Australians live in regional areas, 9 per cent in rural areas and 2.3 per cent in remote or very remote regions.

Table 1: 2009 Population according to remoteness areas. Based on ABS Estimated Resident Population statistics calculated from 2006 Census data, updated to take account of births, deaths, international and interstate migration taken from AIFS Facts Sheet 2011 ‘Families in Regional, Rural, and Remote Australia’20 Major Cities have a population of 15,100,000 (2009) Regional Areas have a population of 6,898,000 (2009) Major cities Inner regional Outer regional Remote Very Remote Population 15.1 m 4.3 m 2.1m 324,000 174,000 Percentage 69% 20% 9% 1.5% 0.8% Table 2 below draws on the first National Profile of Australian Solicitors to show where Australian lawyers are located. The law societies do not code their membership data to ARIA. They use a generic ‘non metropolitan’ category for their ‘country’ classification. The 2011 data showed that 12.8% of Australian lawyers were ‘country’. Table 2: Location of Australian Solicitors 2011 Law Society National Profile. Final Report. July 2012, URBIS

17 Reiny Iriana, Pascoe Pleasence and Christine Coumarelos, Awareness of legal services and responses

to legal problems in remote Australia, Updating Justice Number 26 (July 2013)(P3/2013 no 32 Iriana)

18 Iriana above, n14. 19 Australian Bureau of Statistics http://www.dfat.gov.au/facts/env_glance.html ABS 4102 Aust Social

trends.

20 Australian Institute of Family Studies, 'AIFS Facts Sheet 2011 Families in Rural, Regional and

Remote Australia' (2011)

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

Table 3 below uses data from the 2014 Law Society National Profile to disaggregate the data according to the Australian jurisdictions. Whereas in 2011, there were 7,397 country solicitors making up 12.8% of the Australian profession, in 2014 there were 8,436 country solicitors, or 12.5% of Australian solicitors. Table 3: The location of ‘regional members’ of Australian law societies Source: 2014 Law Society National Profile: Final Report (April 2015) Table 24 pg 40, Table 17 pg 23 Regional Areas (as defined by individual law societies and regulators) Jurisdiction Regional Cohort Surveyed Number ACT Nil country members NSW All members outside Sydney and Newcastle 3,426 Northern Territory All members outside Darwin (tbc) 25 Queensland All members outside Brisbane and the Gold Coast 3,103 South Australia All members outside Adelaide 151 Tasmania All members outside Hobart (tbc) 64 Victoria All members of Country Law Associations 1,395 Western Australia All members outside Perth 272 Total 8,436

When talking or writing about geographical communities we use a range of terms such as ‘country’ or ‘regional, rural and remote’. Anecdotally, the terms ‘regional, rural and remote’ refer to the decreasing population density of country regions. Whilst we suspect that a locality’s population and its distance from the capital cities, may affect services within those localities, historically a lack of standardised definitions has made comparison

• difficult. The concept of ‘remoteness’ is intrinsically linked to the definition of country being

‘not the city’. Remoteness implies distance from a central point; ‘other’ or more colloquially ‘out there’. This lack of standardised definitions has constrained policy

• development. For government funded service delivery, tools offering greater precision

and clarity were required to assist in the delivery of services and the allocation of resources, across the sparsely populated continent. The health and welfare sectors have worked with the Australian government to develop standardised terms for ‘remoteness areas’, which in turn guide the allocation of resources. The research on which this paper is based uses the Accessibility Remoteness Index Australia (ARIA) to disaggregate the generic ‘country’ label to a more nuanced description

• f geographic remoteness. Lawyers who agreed to be interviewed were classified under

the ARIA as practicing in inner regional, outer regional or remote/very remote geographic

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

• areas. This classification of participants helped to discern if increasing geographic

remoteness affects the exercise of a lawyer’s ethical judgment. Figure 1 below is the ARIA map displaying these five remoteness areas; red for major cities, yellow for inner regional, green for outer regional, light blue for remote and dark blue for very remote.

Figure 1: Accessibility Remoteness Index Australia

During the data collection phase of the research, the location of lawyers working in ‘country’ Australia was noted. Table 4 below, shows the number and location of public sector legal services based on jurisdiction (with the exception of the ACT). Predictably, the closely settled south eastern states of Tasmania, NSW and Victoria have the majority

• f lawyers working in ‘inner regional’ areas. Queensland and Western Australia have a

broad distribution of lawyers across the four remoteness areas.

Table 4: Number of legal assistance offices by ARIA remoteness area

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Table 5 below shows the relationship between the number of ‘organisations’ providing public legal services in country Australia, and those organisations number of ‘offices’. This graph displays the difficulty which occurs when client data is collected. In the absence of information barriers, there is an assumption that client data is shared across that

• rganisation. For legal services such as the state legal aid commissions and Aboriginal

Legal Services, this data collection can lead to data ‘toxicity’. That is the more people seen by the legal service, the more data is collected, the greater the risk of ‘conflict’

• ccurring.

Table 5: Comparison between legal assistance services in country Australia: organisations and offices (stripes = branch offices, www = organisations) 0 ¡ 5 ¡ 10 ¡ 15 ¡ 20 ¡ 25 ¡ 30 ¡ 35 ¡ 40 ¡ 45 ¡ 50 ¡ NSW ¡ NT ¡ QLD ¡ SA ¡ TAS ¡ VIC ¡ WA ¡ Very ¡remote ¡ Remote ¡ Outer ¡regional ¡ Inner ¡regional ¡ 0 ¡ 10 ¡ 20 ¡ 30 ¡ 40 ¡ 50 ¡ 60 ¡ 70 ¡ CLC ¡ LAC ¡ FVPLS ¡ ATSILS ¡

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CONFLICTS OF INTEREST A conflict of interest arises when two duties or interests are incompatible. It is in the interests of country lawyers, either financially or professionally, to help as many people as possible. Unlike other professionals in the health, welfare and education sectors, the lawyer’s accumulation of clients and knowledge becomes ‘toxic’ over time. This toxicity occurs because, through the normal course of the lawyering activity, the lawyer acquires knowledge of people and accumulates confidential information. The accumulative affect of people and information means that the lawyer ’should’ be conflicted out of many matters. The word ‘should’ is used here to indicate a normative

• expectation. This normative expectation arises from the lawyer’s professional role which

requires them to comply with the uniform professional standards. Simply put, the professional standard states that a lawyer must avoid a conflict of interest. However the more remote the geographical region in which a country lawyer practices, the greater the likelihood that their community and legal system will be under resourced, and greater the pressure on the lawyer to assist people. Pressure arises for the lawyer when they perceive their professional roles are incompatible. Their primary duty to the administration of justice is incompatible with strict compliance with the professional

• standard. This ethical struggle is illustrated through the story of Melbourne barrister Frank

Vincent who helped establish the Central Australian Aboriginal Legal Aid Service in Alice Springs in the mid-1970s.

You couldn't afford to be as sensitive about what might be regarded as ethical issues in the

• Territory. The problem, for example of possible conflict of interest between the respective

accused couldn’t really constitute a problem when you were all that there was and that you had to make certain that you did your best for a number of people. On one occasion I actually represented six separate accused in the one rape trial, and I have defended four people in the one trial charged with murder – now, as a judge sitting in a court elsewhere – it sounds horrific, but when there was no other person there and there was no money to get

• ther people to do these tasks, then that’s what you did, and you were tempted to do the

best you possibly could for people.21

This example indicates that for Vincent, the ethical decision to assist in the administration

• f justice takes precedence over another principle to avoid conflicts of interest. Although

Vincent’s example was from remote legal practice forty years ago, in remote areas where lawyers are scarce, the tension between these two principles continues. Researchers consistently report that close to seventy per cent of country lawyers reveal that they ‘turn away’ clients because of a conflict of interest. A turn away refers to the decision not to provide a legal service. The first study which reported this statistic was the 1977 survey of the New South Wales legal profession by

21 Jonathon Faine, Lawyers in the Alice : aboriginals and whitefella's law (Federation Press

, 1993) 155

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Tomasic and Bullard.22 In discussing Tomasic’s finding, Macdonald (then a solicitor in Ayr Queensland and now a Senator) commented on the plight facing the country lawyer:

This problem of conflict of interest is a serious one to country practitioners. Where only one firm of solicitors exists it would seem that in contentious civil matters, that solicitor must become judge, jury and advocate in choosing his client and possibly, if the remoteness is great, in determining the issue. I know this does happen–and the lawyer usually tries to adjudicate honestly. But the situation is unfair and open to abuse and quite unethical. In a town such as mine in at least forty per cent of litigated matters my firm has at one stage or the other had a prior involvement with the other party to the litigation. When insurance companies are involved one could imagine many cases arising where one could in fact be acting for a person in a conveyancing matter, and yet proceeding against the same person in a property damage claim at the same time. This is not good practice of the law, but what can one do? Send the client to another firm in the town (who probably doesn't want to become involved anyway) or send the client out of town (and lose the work from the area)? And what happens when two of your very best and most lucrative regular conveyancing clients become involved in a dispute over a dividing fence. If one has to choose–one client is lost forever over a minor dispute. I have on several occasions seen where a solicitor will pay from his own pocket the amount in dispute between the parties to avoid a confrontation.23

More recently, Coverdale’s 2011 Postcode Justice research revealed that 69 per cent of Victorian surveyed lawyers ‘regarded the potential for conflict of interest as an issue which adversely impacted on their ability to provide services to regional clients.24 Coverdale’s finding of the prevalence of conflicting interests as a disqualifying event, was followed up with more detailed research into the structural and ethical challenge of conflicts of interest in rural and regional practice. This Deakin University research led by Kyle and Coverdale noted:

[the country lawyer’s] availability and capacity to deliver services to their communities impacts on the equitable administration of and access to justice.

They identified the ethical tension which is manifest in the way country lawyers identify and respond to instances of conflict of interest. Kyle and Coverdale found that the more remote the legal practice, the less likely the lawyer was to cease to act when a potential for a conflict of interest arises.25 Yet these lawyers were acutely aware that acting in a conflict situation exposed them to the likelihood of client complaints.26 Their research found that, in comparison to lawyers working in metropolitan communities: conflict of interest issues are reducing the capacity of practitioners to deliver services

to their regional clients and impacting on the capacity of those communities to gain equitable outcomes when attempting to access the justice system.27

22 Roman Tomasic, Law, Lawyers and the Community. Some observations from a survey of community attitudes and

• experiences. (The Law Foundation of New South Wales, 1976) ¡

23 Ian Macdonald, 'Country Lawyers and their problems' (1979) 53(

) Australian Law Journal 404

24 Coverdale above, n1 13. 25 Kyle and Coverdale above, n7 see Q25 26 Kyle and Coverdale above, n7 seeQ24 27 Kyle and Coverdale above, n7, 28

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

The 2013 National Association of Community Legal Centre census of community legal centres revealed that 74 percent of these legal assistance services turned away clients due to a conflict of interest.28 These responses were not codes against geographical location. It is possible that there is more ‘pressure’ on country lawyers to act for clients. This possibility arises because of the lack of alternative legal services to refer conflicted clients, and due to the personal nature of legal practice in country communities where lawyers know their clients and the ‘other parties’. Kyle and Coverdale coded participant responses against the ARIA and found that ‘remoteness was also related to an increased likelihood that lawyers would act for clients where there was an increased risk of conflict’.29 This finding prompts the normative question ‘Should the same professional standard apply to all lawyers, regardless of context, or does the legal profession condone a different standard for different practice contexts?’ These Victorian findings are of concern as they indicate a tension between the professional desire to provide legal services, yet suggest a different standard for those legal services based on geographical remoteness. The legal profession demands the same professional standards of all lawyers regardless

• f geographical location or practice context.

Given that country lawyers regularly assess their capacity to act in the face of a possible conflict, what factors influence their ethical decision making? As Kyle and Coverdale

• bserve:

‘[the lawyer’s response] is integral to maintaining a high standard of service, and not only ensuring just outcomes for clients but also maintaining the integrity of the legal system.’

This research continues the work of Kyle and Coverdale by seeking to understand ‘what is going on out there’? The research examines ‘how’ lawyers assess their ethical

• bligations and ‘what’ factors influence their decision.

RESEARCH The research involved conducting interviews with 52 participant lawyers across regional rural and remote Australia. These interviews focused on the impact of geographic remoteness on the way country lawyers identify, and respond, to conflicting interests. The interviews were wide ranging, with an interview schedule of 40 questions with interviews averaging one hour in length. Twenty-one interviews were conducted ‘face to face’ and 31 interviews were conducted over the phone or by skype. The interview explored each lawyer’s perceptions of the impact of geographic location on their legal practice whilst

28 National Association of Community Legal Centres, 'National Census of Community Legal Centres. 2013

Report' (2014) 34/79

29 Kyle and Coverdale above, n7, 14

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

eliciting evidence of ways these lawyers identified, then responded, to the possibility of conflicting interests. When participants were asked how they identified conflicting interests, their responses revealed two approaches: proactive screening and reactive ‘ad hoc’ revelations of

• conflicts. The proactive screening involved carrying out a sequence of steps to identify

possible conflicts before a legal service was provided. This threshold screening of clients had a prophylactic purpose; to detect actual conflict and to avoid the possibility of future

• conflicts. When this proactive threshold screening ‘flagged’ a conflict, the legal service

would disqualify itself and no legal service would be provided. The data revealed a connection between participants’ tendency to use threshold screening and geographic remoteness. To the extent that it was possible to code the responses from this small group of participants, the data revealed that lawyers practicing in more remote areas were less likely to use threshold screening. The more remote the lawyer (the ARIA ‘outer regional’ and ‘remote’ categories), the lower were the percentages of lawyers using threshold screening. Table 6 below illustrates this finding. Whilst 100% of participants working in the public sector in ‘inner regional’ areas reported using threshold screening, this number reduced to 55% of public sector lawyers working in ‘remote’ areas. A similar reduction was reported in the private sector; from 71% of private lawyers working in ‘inner regional’ areas reporting that they used threshold screening, to 50% of private lawyers working in ‘remote’ areas.

Table 6: The impact of geographic remoteness on threshold screening

These results suggest that with increasing geographic remoteness, there is less tendency to use threshold screening as a tool to identify conflicting interests. Threshold screening

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% All Data Public Sector Private Sector Inner Regional Outer Regional Remote

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identifies both possible and actual conflicts of interest. When applied rigorously, threshold screening leads to a refusal of service (colloquially called ‘turn aways’). A lawyer working in a remote area may perceive that they are the lawyer of last resort. Consequently, the remote lawyer may be more inclined to be a ‘reactive identifier’ of conflict and not seek

• ut historical client data which could lead to disqualifying the legal service from acting.

Another reason why remote lawyers may be reluctant to conduct threshold screening is that the lawyer may have a higher risk threshold and be more tolerant of working with the possibility of emergent conflict. It is possible that the remote lawyer is willing to offer legal services in an environment rich with interconnected relationships. The participants revealed three levels of response when the possibility of a conflict of interest was raised. Whilst not mutually exclusive, each level of response illustrated participants’ varying appetites for the exploration of alternatives to an outright disqualification of that legal service. The first response - colloquially called the ‘turn away’

• was to disqualify that legal service from acting. At this level, the participants reported

that there was no perceived capacity to help the person, beyond an assisted referral to another service. The second response involved an analysis of the circumstances. In this analysis several elements were assessed and weighted, in order to discern if it was possible to provide a legal service. This second response was in the nature of a ‘triage’ assessment of the legal service’s capacity to act notwithstanding the possibility of a

• conflict. The third response was a positive decision to act in the face of a possibility of a

conflict, and a resolution to ‘work around’ the apparent problems. Participants reported that this ‘work around’ response required the legal service to ‘proceed with caution’. Some participants recruited the client to work with them to ensure the proposed ‘work around’ was successful in acting in that client’s best interests. Participants justified this third ‘work around’ response through the use of information barriers and informed client consent. Participants reported that the presence of alternative legal services to which they could refer a conflicted client were fundamental in their decision to turn away clients. When alternative legal services were available there were more turn aways. When there were no alternatives available, there were fewer turn aways: The major consideration for us is ‘What’s going to happen if I stop representing this person?’ So in most of the remote places there’s no one

• else. We can refer people to another service, but whether that other service

can actually get out there and do anything about it is another matter. So we’re then thinking ‘Well, if I get rid of this, this person is going to hang around for months potentially with no resolution of their case. They might be better off.. it might be in their interests if I just keep doing this.’ Male early career, public sector, remote (32) However, when participants perceived there were no alternative legal services to which they could refer possible conflicts, two other responses emerged. These two additional responses moved beyond avoidance of possible conflicts to address the risk of a conflict

• emerging. These two responses are the ‘triage’ and the ‘work around’.

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

Participants described how they examined the discrete elements of the relevant matters. This examination was in the nature of a ‘triage’ assessment. Many participants reported that although their screening systems would ‘flag’ a possible conflict, this flag was a trigger for further inquiry rather than an automatic ‘turn away’. Depending on the circumstances and available resources, the participant reported they would ‘delve deeper’ into the discrete elements of each matter to discern if there was a disqualifying conflict. The participants using this triage assessment described the exercise as a forensic endeavour, which involved reviewing existing files, and the data held on the system in

• rder to assess if that information was sufficient to disqualify their legal service from
• acting. One participant viewed his triage assessment as a skilled exercise of professional

judgment; Sometimes you’ve got to delve deeper than ‘Joe Bloggs family law issue - Sam Smith family law issue - that must be a conflict!’ You’ve got to delve a bit deeper [because the support staff] does not have the skills [to do this]. Male early career, public sector, outer regional (17) When participants explained how they exercised their professional judgment, they spoke about three elements which were examined; the type of information held within that legal service which included both client data and workers’ memory; the time elapsed since that legal advice had been provided; and the scope of previous legal advice (minimal assistance or substantive casework). I go through a balancing act of ‘What is the information that we hold about this person? Am I likely to have to disclose this information to the new person?’ and if the answer is ‘No’ I then write what I call a ‘conflict of interest management file note’. I put that on a bright yellow paper so that it is kind of glowing and you can see it. And I put a copy of that note on each relevant file …. ‘You can give advice to that person but be cautious around going into this

• area. If you go into this area we will have to stop acting for that person.’

Male master, public sector, inner regional (33) There was no consistency amongst the participants as to the type of client data they kept, where it was kept and for how long it was kept. One service had a rule that records were kept for two years; another for seven years. Most participants reported that their legal services retained all client data from the establishment of that service and they continued to conduct threshold screening against that historical client database. Some participants explained that they were guided by what they considered was in their clients’ interests, and how their decision to provide legal advice would be perceived in their community: You have to put your client and the former client at the centre of it and you do not want to breach confidence of the former client ….Because that is your primary starting point. Then there is the perception of conflicts. …. Perception in the community is important. So you have to have that at the back of your

• mind. I guess you get a little bit of choice. It is not a cab rank. You can say no

to people if you can see that it is going to be a problem in the future.

‘ T u r n a w a y ’ o r ‘ t r i a g e ’ E n g a g i n g w i t h c o n f l i c t s o f i n t e r e s t i n t h e b u s h C o n f e r e n c e o f R e g u l a t o r y O f f i c e r s H o b a r t , 6 N o v e m b e r 2 0 1 5

Male master, public sector, remote (16) Another participant used her triage assessment to discern which course of action would be ‘good for everybody’: We run a practice that advocates looking after everyone's interests, including the other party. Because generally, what I have found is that… what will be best for our client, will likely also be best for the other client. If you can achieve a circumstance that is good for everybody, it will likely be in your client's best interests also. Female master, private sector, remote (28) The more geographically remote the participant, the greater the percentage of participants who reported using a triage assessment to discern if there is a disqualifying

• conflict. Table 7 below shows that 100% of remote public sector participants reported

engaging in a triage assessment compared to 29% of their inner regional colleagues. Although this pattern was evident with private sector participants too, the difference was not as stark with 67% of remote, private sector participants engaged in a triage assessment compared to 57% of their inner regional colleagues.

Table 7: The impact of geographic remoteness on the triage activity.

Comparing participants’ responses with their geographic location reveals that lawyers in more remote areas are more likely to go behind the appearance of conflict to engage in a ‘triage’ assessment to discern the likelihood of an actual conflict occurring. This triage assessment contrasts sharply with the more proscriptive ‘turn away’ response of lawyers in less remote areas. The interview data suggests that when participants perceive that there are few alternative legal services, this triage provides a way to address the legal

• need. This triage response may be in the form of assisting in a ‘warm transfer’ to another

legal service, or by helping the conflicted client to apply for legal aid.

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% All Data Public Sector Private Sector Inner Regional Outer Regional Remote

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Having explained the practicing context of the Australian legal profession, and described some of the research findings, the next section of this paper describes theories of legal

• ethics. These theories of legal ethics allow flexibility in the regulatory approach to

encourage ethical practice. One theory, the theory of moral agency explained by Fuller, permits, and encourages lawyers working in remote communities to use their professional judgment when assessing the requirements of ‘justice’. THEORIES OF LEGAL ETHICS Theories of legal ethics address the personal and professional philosophies which inform the lawyer’s moral behaviour. Many philosophical theories of legal ethics revolve around the relationship between morality and law. Arguably the most prevalent theoretical approach for understanding legal ethics is what is known as a positivist approach. The primacy of this positivist stance is evident in the content of formal legal ethics education which focuses on the rules and case law as the principal influence on ethical legal practice. The positivist approach derives from the concept of ‘posited’ law; law which is created through formal processes. For positivists, ethical behaviour is shaped by formal compliance with the prescriptive rules of professional conduct as clarified by disciplinary case law. A positivist believes there is minimal scope for individual ethical decision-making beyond applying the predetermined

• law. For positivists, the lawyer should follow the literal meaning of the professional

conduct rule, regardless of their practice environment. A positivist approach to legal ethics is evident when practice management systems and procedures designed to elicit compliance with the uniform professional standards, predetermine how a lawyer should behave, and constrain individual ethical decision making. An example of this normative positivist approach is the mandatory use of threshold

• screening. All lawyers working in Australian Community Legal Centres must screen all

people seeking legal advice, prior to providing legal help. If a conflict is ‘flagged’ in the screening process, the lawyer should decline to act. This requirement for threshold screening is enforced through generic accreditation standards and is a condition of these public legal services receiving professional indemnity insurance. This formal positivist approach is in strict compliance with the professional conduct rule and arguably constrains the individual lawyer’s ethical decision making. This approach to legal ethics aligns with a positivist ‘rule based’ view through the belief that the lawyer’s ethical decision can be predetermined and perhaps automated through the use of a posited, explicit system. The basis for this normative view is that in order for the lawyer to act in the best interests of their client, the lawyer must take steps to ensure that they or their legal practice are not compromised by other conflicting interests. A contrary view to obedient compliance with an externally imposed positivist rule or system is the encouragement of an individual lawyers own ‘moral agency’. The Australian

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regulatory turn to principles based ethics is founded on the explicit principle that a lawyer’s primary purpose is to assist in the administration of justice. This focus is also articulated by the legal ethicist Fuller who said the activity of lawyering requires the lawyer to strive to achieve the law’s purpose. For Fuller, the law’s purpose was a moral purpose. Fuller said that the lawyer is a ‘purposive’ professional. Recognising that most legal work occurs outside the courts, Fuller cast the lawyer as ‘the architect of social structure’ constantly designing and building functional relationships. In

• rder to build solutions, Fuller encouraged lawyers to strive beyond the law ‘as is’ in order

to achieve solutions, to what ‘ought to be’. Fuller’s natural law theory of legal ethics personalises the practice of law by placing individual professional judgment at the heart of the lawyering activity. His approach contrasts with a ‘positivist’ approach to legal ethics which defers ethical authority to external sources. Fuller internalises ethical authority. Fuller believed that unless the lawyer is acting ‘purposively’ to bring the intention of the law into being, that lawyer is not practicing law at all. They may be compliant to ‘managerial direction’ which is the technical application of rules without regard for outcome. For Fuller the essence of the lawyering activity was the mutual endeavour, between the governed and the governors, to make the world a better place. The practical application of Fuller’s purposive approach to lawyering can be seen in the research results. A lawyer working in an under resourced remote community may choose not to screen for compromising interests, and only decline to act for a client if that lawyer has an actual conflict of interest. Whilst advocates of the natural law theory of legal ethics accept that practice management systems and procedures exist to meet the standard established by the professional conduct rule and disciplinary case law, they argue that these systems require more from the lawyer than prescriptive rule following or what is called ‘managerial direction’. The natural law normative approach requires the lawyer to exercise their professional discretion, their own ethics, in each circumstance to enhance substantive justice. Arguably a lawyer with a natural law ethical leaning, preferences their paramount duty to the administration of justice over formalistic compliance with systems, procedures and prescriptive rules. This contrasting natural law normative approach is that the threshold screening for conflicting interests is only used when the client’s matter is ongoing. Australian legal aid lawyers choose not to use threshold screening when offering ‘limited legal assistance’ such as duty lawyer services or minimal assistance. They argue that the rule prohibiting acting when there is a conflict of interest can be honoured when they decline to act when there is personal knowledge of an actual conflict of interest. Natural law ethicists argue that a lawyer’s professional role morality should be an extension of their private morality. This alignment with personal suggests the lawyer should ‘work around’ the constraints of the system in order to achieve pragmatic justice.

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Closer to home and addressing the contemporary interest in legal ethics, Christine Parker and Adrian Evans have suggested four ethical archetypes for lawyer’s role moralities; the zealous advocate (perhaps reflecting a positivist perspective consistent with the neutral partisan), the responsible lawyer (Fuller’s purposive professional), the moral activist and the ethics of care approach. These theories of legal ethics offer insights into how different lawyers may approach their ethical duty to avoid conflicts of interests. These theories describe conflicting ethical

• norms. The lawyer’s ethical decision must reconcile two ethical principles, the duty to

avoid conflicts of interest and the paramount duty to the administration of justice. Theories

• f legal ethics can assist in understanding this tension, and may assist in the resolution of

an ethical position. PHILISOPHY OF LEGAL ETHICS: LAW AND MORALITY Behind Fuller’s normative view that lawyers should be purposive professionals, are three guiding principles. All three principles relate to the lawyering activity. The first principle is the relationship between ‘duty’ and ‘aspiration’. Fuller believed that the lawyering activity

• ccurs on ‘the field of human endeavour’ and consequently ‘striving’ to achieve the law’s

purpose requires studied calculation. On this field of human endeavour, the lawyer has to navigate the dynamic relationship between duty and aspiration. Fuller suggests this dynamic activity can be plotted on a continuum. He visualized an imaginary ‘pointer’ indicating variable positions along the spectrum between duty and aspiration. The more duty encroaches into aspiration ‘the iron hand of imposed obligation may stifle experiment, inspiration and spontaneity’ and the more aspiration moves into the territory

• f duty ‘men may qualify obligation by standards of their own’.30 To Fuller both duty and

aspiration have distinct moralities. Whilst lawyers are obliged to comply with their professional duties, this obligation is low on the field of endeavour. By contrast, lawyers’ higher calling is to aspire to excellence. Fuller saw failure to aspire, as a sin. This first Fullerian principle suggests that a purposive lawyer should navigate between the

• bligation of duty and the aspiration to excellence.

Fuller’s second purposive principle is the relationship between the ‘is’ and the ‘ought’. This principle recognises that law is inchoate until given expression within human context. The lawyer’s role is to assist the law to ‘become’. The lawyering activity transforms the law’s incomplete intention into concrete expression. In bringing the law’s purpose into being, the lawyer is responsive to the status quo; to the ‘is’. Because the lawyer practices with clients in community, they are uniquely placed to appreciate the distinctive, unique circumstances of the ‘is’. The lawyer’s situational understanding should inform what happens next. As a lawmaker, the purposive lawyer uses their knowledge of the law and the inchoate purpose of the law, to design a tailored response to transform the ‘is’ to the ‘ought’. As to what the ‘ought’ should be, is informed by the situation. The situated,

30 Lon L. Fuller, The morality of law (Yale University Press, 2nd ed. ed, 1969) 28.

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purposive lawyer crafts an informed appropriate response. This second Fullerian principle requires the lawyering activity to be transformational. Fuller’s third purposive principle is a commitment to the dialectic activity. The dialectic activity refers to a conversation or interaction which creates knowledge. The dialectic approach assumes that other stakeholders, such as clients and colleagues, have valuable contributions which will enhance both the process and the outcome. A purposive lawyer should not constrain their lawyering activity to an internal self referential inquiry. This third Fullerian principle positions the lawyer as one member of the team. REGULATORY SUPPORT Call to action: Exploration of referral pathways for conflicted clients Government inquiries into justice administration are based on the assumption that government has a role in monitoring the efficiency and effectiveness of our legal system. A corollary of this assumption is that governments should intervene when the normal

• peration of the market fails to provide adequate access to justice. In this context, the

term ‘market’ refers to commercial services offered through the private legal profession. Private lawyers are key providers of legal services in remote Australia, yet their sustainability depends on receiving sufficient income to support their practice. In many remote regions, population sparsity and the lack of commercial enterprises inhibit sustainable legal practices. The underlying inference in the numerous recommendations arising from government inquiries and reports into the administration of the justice system, is that when the market fails to provide sufficient legal services in order to attain justice, more resources should flow towards providing legal services. The connection between the market and the delivery of justice services, and the subsequent failure of the market to sufficiently address community needs was noted in the 2014 Productivity Commission report;

For most goods and services, a competitive market will satisfy demand, with prices limiting demand to the cost of providing the service. However, there can be substantial ‘gaps’ in the market for legal services where ‘for-profit’ providers have little or no incentive to provide services or where the cost of providing a service is prohibitive, such as with homeless people needing services who have little, if any, capacity to pay. The cost can be prohibitive for two related reasons — the level of demand in a location, and the cost of providing the required

• service. Many specialist services need a relatively high volume of clients to sustain their
• business. Demand may fall well short of this level in some locations. Some locations also

incur higher costs due to distance. Some services are higher cost, or more difficult to staff, because cultural and linguistic skills are needed. If left to the market, legal services may not be provided in some areas, such as rural, remote or low-income locations, or to groups who have special needs.31

The Productivity Commission’s recognition that there is no necessary connection between the legal needs of people within a specific location and the ability of the market to meet those needs raises the issue of service design.

31 Productivity Commission above, n2

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CONCLUSION This paper has explained the results of the recent research into the ethical challenges faced by the 12.5% of Australian lawyers working outside our major cities. The focus for the research is the recognition and response to conflicting interests. The research explored the affect of geographic remoteness on that ethical decision making. The research found a correlation between remoteness and lawyers identification of, and response to, conflicting interests. Specifically, lawyers in more remote areas were less likely to conduct threshold screening of clients before undertaking legal work. Remote lawyers were more likely to undertake a ‘triage’ assessment if they sensed there may be a disqualifying conflict, compared to their colleagues in less remote areas. The responses from research participants indicate that this ethical behaviour is in response to a lack of alternative legal services. This finding invites a collegial response from lawyers and regulators.

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Bibiliography Australian Government Productivity Commission, Access to Justice Arrangements. Draft Report (April 2014) Black, Julia, 'Critical reflections on regulation' (2002) 27 Australian Journal of Legal Philosophy, 1 Briton, John and Scott McLean, 'Lawyer Regulation, consciousness-raising and social science' (15-17 July 2010) Stanford Law School International Legal Ethics Conference IV Cain, Michael and Suzie Forell, 'Recruitment and retention of lawyers in regional, rural and remote New South Wales' (2010) Centres, National Association of Community Legal, 'National Census of Community Legal Centres. 2013 Report' (2014) Council of Australian Governments, 'National Indigenous Reform Agreement (Closing the Gap). ' (2009) Coverdale, Richard, 'Postcode Justice. Rural and Regional Disadvantage in the Administration of Law in Victoria' (Deakin University, Centre for Rural Regional Law and Justice, July 2011) Economides, Kim, 'Strategies for Meeting Rural Legal Needs-Lessons from Local, Regional and International Experience' (2010) National Rural Regional Law and Justice Conference Fuller, Lon L., The morality of law (Yale University Press, 2nd ed. ed, 1969) Iriana, Reiny, Pascoe Pleasence and Christine Coumarelos, Awareness of legal services and responses to legal problems in remote Australia, Updating Justice Number 26 (July 2013) Kyle, Louise, Richard Coverdale and Tim Powers, Conflicts of Interest in Victorian Rural and Regional Legal Practice (Deakin University, 2014) Macdonald, Ian, 'Country Lawyers and their problems' (1979) 53( ) Australian Law Journal Parker, Christine, Tahlia Gordon and Steve Mark, 'Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales' (September 2010) 37(3) Journal of Law and Society Tomasic, Roman, Law, Lawyers and the Community. Some observations from a survey of community attitudes and experiences. (The Law Foundation of New South Wales, 1976)

‘Turn Away’ or ‘Triage’

Engaging with conflicts of interests in the bush

Conference of Regulatory Officers Hobart, Tasmania Friday 6 November 2015 Helen McGowan Doctoral researcher, The ANU College of Law

Regulation of legal ethics

Should context matter? No: Same rules and ethical principles apply Yes: Ethical principles allow a situation specific response.

2

12.5 % of Australian solicitors - 31% of Australians living on 91% of the continent

3

What is going on ‘out there’?

The lawyer’s response ‘is integral to maintaining a high standard of service, and not only ensuring just

• utcomes for clients but also maintaining the

integrity of the legal system.’ Kyle and Coverdale An understanding of the factors which influence the country lawyer’s ethical decision making is essential.

4

The question is ‘how’ do lawyers assess their ethical obligations and ‘what’ factors influence their decision? Until we know these answers, we are unable to reflect on the resourcing requirements for ethical practice in remote areas.

5

Overview

Does geographical remoteness affect the way lawyers identify and respond to conflicting interests? Yes What does this finding mean for us as practitioners and regulators?

6

Research context

• Ethical rule to avoid conflict of interests.
• Distribution of Australian lawyers. In some rural

areas there are ratios of service delivery 1:3000

• Regulatory shift to principles rather than

prescriptive rules

• Some legal services have requested an

exemption from the conflict rules

7

Research design

Does geographical remoteness affect the way lawyers identify and respond to conflicting interests? 52 interviews across regional, rural and remote Australia with lawyers in public and private practice

8

Research results

Lawyers in more remote areas are;

• Less likely to undertake ‘threshold’

screening for conflicts of interest

• More likely to ‘triage’ the client to discern if

there is a ‘work around’ to the possibility of a conflict

9

Threshold Screening decreases with geographical remoteness

10

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% All Data Public Sector Private Sector Inner Regional Outer Regional Remote

Triage assessment increases with geographical remoteness

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0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% All Data Public Sector Private Sector Inner Regional Outer Regional Remote

‘I know my way through the minefield, step exactly where I do’

12

Positivist approach

• More words to guide and explain
• Strictly adhere to the words in the

professional conduct rule.

• Just say NO
• ….or the computer says no…..

13

Law and morality approach: Lon Fuller

• Contextual ethics
• Subsidiarity principle
• Proportionality principle
• Phronesis: the application of practical
• wisdom. Encourage the exercise of

professional judgment of the lawyer.

14

Learning together

• Communities of practice
• Compliance audit/cross check/self audit
• Develop the standard
• Critical friends

15

Regulator support

• Discount on professional indemnity

insurance if solicitors agree not to act on both sides of a matter

• Design forms
• Provide ethical guidance
• Offer ‘opt in’ compliance audit

16

Provocations

• 1. Data hygiene. Do not collect data on clients.

Erase data regularly.

• 2. Different rules for discrete legal advice.

(unbundled)

• 3. Encourage skilled triage assessment: type of

information held, time elapsed since legal service provided, longevity of the relationship

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Discussion

CPD: What would it take to design appropriate professional development to skill lawyers in triage assessment? Unbundled legal services: What client data should be kept?

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