M1 - Learner Manual

There are a number of documents that determine the roles and responsibilities of legal professionals when providing services to clients. Some of the more prominent documents are as follows:

1. Organisational codes of conduct
2. Statutory codes
3. Non-statutory professional standards
4. Workplace policies

Organisational codes of conduct

A code of conduct is intended to be a central guide and reference for users in support of day-to-day decision making. It is meant to clarify an organisation's mission, values, and principles, linking them with standards of professional conduct. As a reference, it can be used to locate relevant documents, services and other resources related to ethics within the organisation. [1]

A well-written and thoughtful code also serves as an important communication vehicle that "reflects the covenant that an organisation has made to uphold its most important values, dealing with such matters as its commitment to employees, its standards for doing business and its relationship with the community."[2]

A code is also a tool to encourage discussions of ethics and to improve how employees/members deal with the ethical dilemmas, prejudices and grey areas that are encountered in everyday employment. A code is NOT a substitute for relevant rules, standards, policies but a complement.

Codes of conduct offer an invaluable opportunity for responsible organisations to create a positive public identity for themselves which can lead to a more supportive political and regulatory environment and an increased level of public confidence and trust among important constituencies and stakeholders.[3]

Aboriginal Legal Service (ALS) ‘Code of Conduct’

Excerpt from the ALS NSW/ACT Ltd website….

ALS has a responsibility to its stakeholders to ensure the professional and ethical conduct of its employees. As such it is important that prospective applicants understand the core values of our Code of Conduct policy as the standard of conduct required. These core values are: 

• Treat all the people that we come in to contact with respect and dignity 
• Uphold the law, respect community standards, and act accordingly 
• Use ALS property responsibly and in the best interests of ALS and its reputation, and 
• Accept that we are responsible for our actions and accountable for the consequences. [4]

Statutory codes of conduct

Created and amended by the Government, statutory codes of ethics set forth the legislative obligations of legal practitioners across Australia when engaging in the provision of legal services. In New South Wales, the two core pieces of statutory code regulating the legal profession are the Legal Profession Act 2004 (NSW) and the Legal Profession Regulation 2005 (NSW). In short, these documents seek to ‘serve the administration of justice and protect clients of law practices and the public generally. [They] also seek to facilitate the regulation of legal practice on a national basis across State and Territory borders.’[5]

Currently, each state in Australia has its own version of legal statutory codes of ethics. Importantly though, in 2015 the Legal Profession Uniform Law was introduced, creating a common  legal services market across NSW and Victoria, encompassing almost three quarters of Australia’s lawyers. The Legal Profession Uniform Law Act 2015 came into effect on 1 July 2015. This legislative scheme aims to harmonise regulatory obligations while retaining local performance of regulatory functions.

Privacy and The Privacy Act 1988 (Cth)

Section 2A:

The objects of this Act are: 

to promote the protection of the privacy of individuals; and 

to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and 

to provide the basis for nationally consistent regulation of privacy and the handling of personalinformation; and 

to promote responsible and transparent handling of personal information by entities; and 

to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and 

to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and 

to provide a means for individuals to complain about an alleged interference with their privacy; and 

to implement Australia's international obligation in relation to privacy. 

The Privacy Act 1988 (Cth) sets down the law in relation to confidentiality and privacy in Australia. Australians have the right to know why information is required of them and how that information is going to be used. [6] The Act is comprised of 13 Australian Privacy Principles[7] that have been developed to govern the collection, storage, use, and disclosure of personal information by Federal and ACT government Agencies. Among other things, the Act addresses the management of personal information in an open and transparent way, the use and disclosure of personal information, the integrity of personal information (including the quality and security of personal information) and how to deal with requests for access to and/or correction of personal information.[8]

Non-statutory Professional standards

Though not legislation and unenforceable before a court of law, all Australian states through their respective Law Societies, have implemented a binding code of professional standards[9]. In an attempt to create a single, uniform set of rules governing the practice of law and the Australian legal profession, the Law Council of Australia has developed the Australian Solicitors Conduct Rules 2011 (‘the ASCR’). It is hoped that adoption of the ASCR by all Australian states will ensure that all of Australia’s solicitors are bound by a common set of professional obligations and ethical principles when dealing with their clients, the courts, their fellow legal practitioners and other persons. 

The ASCR cannot cover all possible dilemmas or scenarios, but the ethical principles that are enshrined in the ASCR provide the framework for legal practitioners to deliver competent and quality legal service to clients. These non-statutory professional standards must be read in conjunction with the common law and equity (branch of law focused on fairness).

Workplace policies

Given the growing complexity of client’s needs and a greater emphasis on the accountability and efficiency of service providers, almost all organisations, big or small, should have at least the most basic of workplace policies. These policies may deal with anything from workplace conduct, human resource management and workplace safety, to information storage, cultural awareness and complaint resolution processes. In an organisation providing legal services such as Legal Aid New South Wales and the Aboriginal Legal Service for example, it would be important to immediately familiarise yourself with their conflict of interest, client eligibility and client confidentiality policies. 

Well-written workplace policies:

are consistent with the values of the organisation

compliment legislation relevant to the workplace (e.g. Privacy Act 1988 (Cth), Workplace Health & Safety 2011 (Cth), Fair Work Act 2009 (Cth) & Public Services Act 1999 (Cth)).

demonstrate that the organisation is operating in an efficient and professional manner

ensure uniformity and consistency in decision-making and operational procedures

add strength to the position of staff when possible legal actions arise

save time when a new problem can be handled quickly and effectively through an existing policy

foster stability and continuity

maintain the direction of the organisation even during periods of change

provide the framework for business planning

assist in assessing performance and establishing accountability

clarify functions and responsibilities[10]

are non-discriminatory, as well as embrace equality and diversity