“Welcome to the ethics gym. Pay attention, because we are going to put you to work!”
Those were the opening words of Rachel Webber, Deputy Chair, Business Law Section, Law Council of Australia, and our “exercise” instructor.
Warm up
But first, the warm-up! We began with the Legal Profession Uniform Australian Solicitors’ Conduct Rules 2015, encouraged to increase the intensity by adding in our ethical duties at common law. So, go ahead and begin your warm-up, and pay close attention to Rules 3, 4, 5, 9, and 12 of the Uniform Rules. They can be found here.
Exercise
Richard is a Senior Associate at a large commercial firm, Abbotts Legal. His wife, Lisa, has started her career at a boutique firm. Feeling overwhelmed, Lisa begins forwarding Richard confidential documents and asking him to settle her work. Richard agrees, often sharing Abbotts’ internal precedents and directing the vacation clerk, Jennifer, to assist with research tasks intended for Lisa.
One of Lisa’s matters involves the sellers of MetroFarmShop, who are seeking consent to assign a commercial lease as part of a sale of their business. They are in dispute with the landlord over alleged defaults. Richard helps draft a letter to the landlord’s lawyers. A week later, he discovers that Abbotts acts for the landlord. Nevertheless, Richard agrees to review Lisa’s draft response to a settlement proposal from Abbotts.
Jennifer, unfamiliar with Abbotts’ AI policies and eager to impress, uses ChatGPT to assist with her research for Lisa’s matter, entering prompts that includ client facts.
Set 1: What duties did Richard breach by sharing and receiving material from Lisa?
The unauthorised disclosure raises concerns that privilege has now been waived. It’s important to note that the duty of confidentiality is owed to the client, not to other lawyers. Although Richard merely received the confidential information, he ought to have deleted the confidential information and explained to Lisa that the disclosure breached her obligations. Further, the parties had acted dishonestly and were advancing their own self interests. Sharing internal precedents without permission would have breached firm policy and, no doubt, the terms of Richard’s employment contract.
Set 2: What types of conflicts of interest arise from the facts?
At common law, a lawyer is a fiduciary who must act in the client’s best interests, free from divided loyalties. Rule 4.1.1 similarly requires a solicitor to act in the best interests of a client. By assisting Lisa in a matter where Abbotts acts for the opposing party, Richard placed himself in a position where he could not properly discharge his duty. Even if he believed he could remain objective, the “appearance” of divided loyalty is problematic. He also has a duty to avoid any compromise to his integrity and professional independence under Rule 4.1.4. Further issues include the conflict between personal interests and professional duties, and Richard’s failure to disclose the conflict (or seek consent) is a serious breach of professional standards.
Set 3: What ethical issues does Jennifer’s use of AI tools raise?
The risk of entering client facts into a public AI tool may amount to an unauthorised disclosure of confidential information and waiver of privilege. Many AI tools store prompts for model training, allowing third parties to retain or access the data. Even anonymised information can be re-identifiable in context.
Cool down
We all know the importance of cooling down after a workout – so here were the key takeaways:
- Set boundaries early on in your professional career.
- Never assist another lawyer with their client work (unless authorised).
- Confidentiality is absolute – you cannot share client documents outside your firm (even with another lawyer) without permission.
- Think carefully before using AI for legal work – make sure to follow the rules, practice directions and your firm’s policies.
- Conflicts of interest must be actively checked throughout the lifetime of a file – the obligation does not cease after opening the file.
- Never mislead junior staff – this is poor form, an abuse of power and breach of integrity.
Our sincere thanks to the following panel members who dedicated their afternoon to assisting us at the ethics gym workshop:
- Rachel Webber, Deputy Chair, Business Law Section, Law Council of Australia
- Adj Professor Dr Brett Davies, Legal Consolidated Barristers and Solicitors
- Paul D Evans, Partner, HFW Australia
- Dr Sue Kee, Legal Practitioner (Volunteer/ Pro Bono)
- Ashley Macknay, Litigation Counsel, William and Hughes Commercial and Litigation Lawyers
- Gad Coffie, Assistant Parliamentary Counsel, Parliamentary Counsel’s Office
- Pamela Hass, General Counsel to the Chief Advocate of Mental Health Advocacy Service WA
- James Healy, Barrister, Francis Burt Chambers
- Carolyn Moss, Barrister, Francis Burt Chambers
- Miriam Sauley, General Counsel at Department of Primary Industries and Regional Development.
If you ever need someone to spot you, consider seeking expert guidance from the Law Society’s Ethical Guidance Panel. The panel offers confidential advice on ethical issues in legal practice.
Image courtesy of sandraleevisuals.
