Finlayson Christopher: Lawyers and Conveyancers Bill — In Committee 
Finlayson Christopher: Lawyers and Conveyancers Bill — In Committee 
[Volume:629;Page:1503] 
CHRISTOPHER FINLAYSON (National) 
: 
 My colleague Dr Worth has briefly outlined the legislative history of this bill so I will take that as read. I too wish to address some comments to clause 4 which is a new clause—it not having appeared in the current Act the Law Practitioners Act 1982—and I particularly wish to say something about subclause (d). This clause sets out the fundamental obligations of lawyers and on its face looks to be a reasonably anodyne clause. First there is the obligation to uphold the rule of law and facilitate the administration of justice. No one would disagree with that. Secondly no one could take any issue either with the all-important “obligation to be independent” in providing regulated services to one’s clients. Thirdly there is the recognition that all barristers and solicitors have both “fiduciary duties and duties of care” when they carry out their tasks on behalf of clients and fourthly there is the obligation to protect the interests of clients—but it does not stop there—“subject to his or her overriding duties as an officer of the High Court …”. 
That is something unique to the legal profession and it has implications for that profession in a very real way that does not impact on other professionals. For example a surgeon who is operating on a person has a very clear and overriding duty to do the best he or she can for the patient. In the case of lawyers however there can be conflicting duties. There is an overriding duty to the court that supervenes the duty required to be shown to the lawyers’ clients. A good example of that arises when one is making submissions to a court. The duty to the court may necessitate all relevant authorities being placed before the judge even if those authorities are not necessarily favourable to the client. I make that statement because later in the course of this debate we will be considering clause 104 which discusses the immunities of barristers. I will be putting forward a Supplementary Order Paper to the Committee because in my opinion the twofold nature of the duty to both the client and the court has to be recognised by a change to clause 104. 
Generally the interpretation clause is reasonably straightforward. There are a couple of changes introduced by this bill that I consider to be most useful. Under the Law Practitioners Act reference was made simply to professional misconduct. Under this bill we have two concepts—first misconduct and second unsatisfactory conduct. I understand that it was the disciplinary provisions of the Law Practitioners Act that gave rise to this reform because many of the complaints made by disgruntled clients relate not necessarily to professional misconduct but to unsatisfactory conduct. Under the present Act the test of professional misconduct is high and the cases that have dealt with professional misconduct have shown there is a very high threshold. 
That concept of professional misconduct is repeated in clause 7 but we have this new concept of unsatisfactory conduct that addresses conduct that may fall short of the standard of competence but not quite reach the standard of professional misconduct. Those tests of misconduct and unsatisfactory conduct will flow through to other parts of the bill—which we will be considering later in the day and tomorrow—as to the way in which the Law Society’s Standards Committee will be able to deal with those problems. That is all I want to say on Part 1. I stress the importance of recognising the fundamental obligations of the practitioner and in particular the provision in subclause (d) of clause 4 that deals with the practitioner’s overriding duties to the court which will need to be reflected in a change I am about to introduce. I also welcome the introduction of the terms “professional misconduct” and “unsatisfactory conduct” which I think will go a long way to addressing the real needs of clients who complain to the Law Society about suboptimal conduct on the part of practitioners.