The Victorian judicial system is currently facing the enormous task of re-examining an estimated 1200 cases that may have been tainted because Nicola Gobbo – or ‘Lawyer X’ – informed on her own clients.
Acting as a police informer between 2005 and 2009, Ms Gobbo not only breached client legal privilege but failed to act in the best interests of her clients.
The severity of the fallout
The ramifications of the actions of Victoria Police and Ms Gobbo’s have been far-reaching – impacting on the integrity of the criminal justice system, as well as potentially affecting the trust and confidence clients have when consulting lawyers for legal advice and representation.
The Royal Commission into the Management of Police Informants handed down its final report recently, making several recommendations directed at members of the legal profession, with a view to restoring integrity and public trust.
Duty to report suspected corruption
Perhaps the most significant of these is the recommendation that governments create legislation to force lawyers to speak up if they suspect corruption by those in the criminal justice system, including their peers.
“When lawyers deliberately betray their client’s trust or act in ways contrary to a client’s interests, it can have a devastating impact on the client”, said Commissioner McMurdo.
“It is also, as this inquiry shows, apt to undermine integrity of the criminal justice system and a public confidence in the legal profession”.
Regulations within the profession already exist to protect both the consumer and public, as well as to support the proper administration of justice
It has been reported that the majority of lawyers support the Commissioner’s recommendation to implement mandatory reporting of misconduct, adhering to the philosophy that you must take proactive steps to protect the integrity of the profession, and the criminal justice system as a whole.
Restoring faith in the system
In proposing mandatory reporting, Ms McMurdo said she believed it would “deter misconduct by lawyers, encourage their adherence to high ethical standards, strengthen public confidence in the legal profession, and bring it into line with other professions and fields where mandatory obligations apply, including the health sector and policing.”
Ms McMurdo also recommended beefing up ethics education at both a university level and in the workplace with continuing professional development incorporating practice-based scenarios that would support lawyers to understand the types of ethical issues that can arise and how to manage them.
When it comes to complaints made about lawyers, Commissioner McMurdo suggested that the Victorian Legal Services Commissioner take sole responsibility for complaints, to ensure a “single, consistent, independent approach” to their management.
Commissioner McMurdo also suggested the legal profession regulators and professional associations work together to develop communications material for the public to increase education and awareness of lawyers’ professional and ethical obligations with the aim of restoring and maintaining confidence in the profession and justice system.
Mandatory reporting of misconduct for the legal profession
Exactly how these recommendations will be put into practice is yet to be determined.
Mandatory reporting is, in itself, a significant undertaking. Whistleblowers are rarely commended or celebrated. You only have to look at how rife sexual harassment is across all industries and professions, despite it being illegal – to realise that while mandatory reporting sounds great on paper, it is very difficult to put into practise effectively.
In fact, as a further example of whether or not mandatory reporting can be truly effective in identifying delinquent behaviour, it’s worth noting that both the Victoria Police Act 2013 and the Victorian Public Administration Act 2004 require police and protective services officers to report misconduct by fellow officers.
However, as was discovered by the Royal Commission, the use of Ms Gobbo as an informant was well known by more than 100 people working in the Victorian Police force, including several at the highest levels of the organisation, and yet no one raised any issues or questioned the arrangement, at any time.
That said, The Victorian Bar Association, the Victorian Legal Services Board, and the Law Institute of Victoria are all keen to put the Lawyer X scandal behind the profession and move forward in a way which aims to restore faith in the criminal justice system and have each committed to working together, in order to implement the Royal Commission’s recommendations as soon as practicable.