Lawyers' Responsibility and Accountability by S. Ross & P. MacFarlane (Book Review) [1998] JSPL 14; (1998) 2 Journal of South Pacific Law

BOOK REVIEW

BY EDWARD R. HILL

LAW CLINIC SUPERVISOR
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH PACIFIC

Title: Lawyers’ Responsibility and Accountability

Author: Ross, S. & MacFarlane, P.

Published by Butterworths: Australia (1997).

ISBN: 0 409 31207 X

pp: 477.

Society has seldom, if ever, held lawyers and the legal profession in lower esteem than at present. At the same time, universities are producing new lawyers in record numbers. In view of these trends, it is felicitous that a third is also discernible. In Australia and beyond, universities are increasingly including the study of professional legal ethics and conduct in their curricula. As part of this trend, a number of texts and materials have appeared. ‘Lawyers’ Responsibility and Accountability’ by Stan Ross and Peter MacFarlane is one of these publications

As the authors state in the foreword, this book is intended to be used in conjunction with a text , Ethics in Law, 2^nd Edition, also written by Stan Ross and published by Butterworths in 1998. However, the book stands alone as a reasonably comprehensive and up to date survey of the law on this subject in Australia.

The law relating to legal responsibility and accountability is covered mainly by a series of cases, rules, model rules and legislation. Inserted among these materials are thoughtful comments and questions that link the materials and challenge the reader to consider the significance and implications of the materials. This structure works well.

The book treats issues both general and specific. An example of a general issue is that of who in society (lawyers, the judiciary, lay people, or the legislature) should control the legal profession and the trade-offs involved in any choice (Chapter 4). Another is the relevance of a lawyer’s behavior outside discharge of professional duties to one’s fitness to practice (Chapter 5). Specific issues include confidentiality, privilege and conflict of interest and duty of care to clients in particular circumstances (Chapters 10 and 11). There is a strong focus on the issue of competence and standard of care that a contemporary lawyer must adhere to in order to avoid liability in the private practice of law (Chapter 9).

Although the contents of the book are broad, they do not include all areas in which issues of professional conduct and ethics arise. For instance, there is nothing on professional or ethical issues that arise in advertising by the legal profession. Nor is there any focus on the particular ethical issues that are unique in public practice or practice as corporate counsel.

The book is clearly directed to the Australian reader. However, although most of the material is Australian, there is a great deal of material from other common law jurisdictions including the United States. These "foreign" materials are included where Australian authority is lacking or unclear, or where they provide an illustrative contrast to Australian authority. It is possible therefore to learn something about lawyers’ responsibility and conduct outside Australia from this book. However, the contents of the book are not intended to form a comprehensive survey of any other jurisdiction.

Some of the topics covered in the book will be of limited relevance to readers outside Australia. Issues relating to a split legal profession (Chapter 4) are no longer relevant in many jurisdictions. Another example is the in depth treatment of question of the right to appear as an accused in a serious criminal case without legal representation (Chapter 4). This is unlikely to be relevant to readers in developing common law countries where the right to representation by counsel is the more pressing issue.

Despite its Australian focus, this book remains useful as a reference in the countries of the Pacific and perhaps in other smaller common law jurisdictions. In part, this is because many smaller jurisdictions do not have large or well developed bodies of law relating to lawyers’ conduct and must resort to external sources to develop that law and must necessarily look beyond their shores to examine how courts and legislatures have dealt with issues of legal ethics and professional conduct. This is of course not different than the way in which Australian law on the subject has developed.

This book is a welcome addition to the available materials on professional conduct and legal ethics. It will be of interest to students and useful to law teachers and bodies charged with maintaining and reviewing codes of professional conduct, both within Australia and elsewhere. One hopes that this publication and others like it will increase professional awareness of the importance of legal ethics and professional conduct. This, in turn, may help to polish the tarnished image of the legal profession.