ETHICS

DUTIES OF IN-HOUSE COUNSEL

www.lsbc.vic.gov.au

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

• 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?

Legal Services Board

• Financial management, licensing and standards

• Protection of consumers

• Oversight of trust accounts

www.lsbc.vic.gov.au

Legal Services Commissioner

• Handle complaints and look at systemic issues

• Educate the legal profession

• Educate the community

www.lsbc.vic.gov.au

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

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

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