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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3358 ..

MR STEFANIAK (continuing):

The opposition will be supporting Ms Tucker's attempts to remove 10.2 today. We would certainly like to see some further evidence before the government tries to bring it back at some later stage, which it probably intends to do. I think that would be of great assistance to us all, but today I am unaware of that evidence. However, there are some fundamental issues here and, at this point in time, we are probably better served by supporting the position Ms Tucker is taking.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.34): This is the first of many occasions on which I will look forward to Mrs Cross' participation on the crossbench.

Part 10.2 provides that lawyers must not prosecute a claim or defence of a claim once a matter is to be set down for a hearing, unless they believe that the claim or defence has reasonable prospects of success. Breaching this prohibition can result in action for professional misconduct, or unsatisfactory professional conduct under the Legal Practitioners Act 1970. In addition, the court can order the lawyer to pay the client all costs that the client has had to pay to another party.

This part is modelled on provisions introduced in New South Wales, and provisions that have been in place for some time in a number of overseas jurisdictions. A couple of concerns have been aired about the provisions. We have just heard those, in particular from Ms Tucker. I did have some government amendments that were meant to deal with a couple of those concerns. However, the government is not persuaded of the need to deal with the other changes suggested, and does not accept the arguments that have been put.

First, it has been suggested that a lawyer should be able to argue a client's case even in the face of the provable facts. This is not the case. Part 10.2 proceeds on the basis that a lawyer should exercise his or her own forensic judgment on the strength of any argument that he or she is called on to advance on behalf of the client. That is not a novel proposition. In this respect, I draw members' attention to the relevant law.

The ACT Law Society professional conduct rules govern the ethical responsibilities of lawyers. They provide that a practitioner must not act as the mere mouthpiece of the client, or of the instructing solicitor, and must independently exercise the forensic judgments called for during the case, after appropriate consideration of the client's and the instructing practitioner's desires, where practicable. That is what the Law Society's rules say.

The seriousness of this requirement to exercise professional judgment before coming before a court was illustrated in the recent Federal Court case of Wakim v McNally, in which the court stated that a solicitor who neglects to raise concerns over the possible shortcomings of advice obtained from senior counsel will be held liable for negligence.

In that case, the full Federal Court held that the standard of care expected of lawyers was especially high owing to the particular and high level of expertise they possess. It restated the view previously stated in Yates v Boland that, even when solicitors receive specialist advice, they are well placed to consider and form their own views on its correctness, and not taking that step constitutes negligence. Part 10.2 restates the

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