The two problems with rule 2.8

There are lots of things that can be said about r 2.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.  It just seems like no-one’s said them.

It’s the rule that turns lawyers into narks.  You have to report potential misconduct about other lawyers to the Law Society.  The rule says this:

2.8 Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity.

2.8.1 This rule applies despite the lawyer’s duty to protect confidential non-privileged information.

2.8.2 Where a report by a lawyer to the Law Society under rule 2.8 may breach the lawyer’s duty to protect confidential non-privileged information, the lawyer should also advise his or her client of the report.

Not “may” make a report to the Law Society, but “must”.  Which is tough!  Look to your left, now look to your right.  These people are under a professional obligation to betray you!  Although if you have your fingers in the trust account then fair enough.

Misconduct is a higher disciplinary finding than unsatisfactory conduct or s 241(c) negligence.  The two most common categories of misconduct are wilful or reckless breaches of the Rules, and disgraceful conduct (a sort of catch all).  So it is not every infraction that needs to be reported.  It needs to be of decent seriousness.  You also have to have reasonable grounds to suspect, which is not a particularly high standard in the law – it’s more than speculation but akin to saying something is possible.  The Legal Complaints Review Officer decision of UK v VL LCRO 142/2013, 2 September 2016 set out a list of matters to be considered before making a confidential report:

[119] There is a process to be gone through before a lawyer makes confidential report under rules 2.8 or 2.9. The first step rule 2.8 calls for is for the reporting lawyer, by whatever means, to acquire some knowledge. In some cases, that lawyer may acquire knowledge as a result of a duty to be informed, but not in others. Step two: does the knowledge acquired raise a suspicion of misconduct? At this point, a prudent lawyer may well check the Act to see what ss 7 and 12 say, look to the rules for guidance, consider legal authorities, perhaps seek advice and perhaps consider making further inquiry. Step three would involve varying levels of analysis and decision-making depending on what was known or could be found out about the conduct, so that the reporting lawyer can be satisfied that the suspicion raised is based on reasonable grounds.

[120] There may or may not be an easy answer. However, a structured process has a number of advantages. By thinking it through, a reporting lawyer may recognise a range of potential issues and consequences; other lawyers may be spared the inconvenience of having to address groundless complaints; the resources of the regulatory processes may not be diverted into addressing complaints and reports made on the basis of suspicions for which no reasonable ground exists. Some other good reason for making or not making a confidential report might become apparent.

[121] In thinking it through, whether a report is made should be guided by the purposes of the Act. A careful thought process is consistent with the fact that complaints and mandatory reports form part of a lawyer’s professional record, whatever the outcome. Complaints and confidential reports should not be lightly made, and call for a careful exercise of professional judgement when made by lawyers.

Remember this is a rule of professional conduct.  A lawyer that fails to comply with this rule – who fails to make a confidential report when there are reasonable grounds to suspect that another lawyer has been guilty of misconduct – is in breach of the conduct rules themselves.  The lawyer who fails to report may themselves face disciplinary action.

But despite this it barely rates four passing mentions in the Webb et al textbook on Ethics, Professional Responsibility and the Lawyer.  The literature is sparse.  One case, speaking about an equivalent rule in another jurisdiction, says this:

The rationale behind this rule is simple – no one is better suited to recognise a breach of the Rules or better situated to observe one.

Attorney U v Mississippi Bar (1996) 678 So 2D 963 at 976 quoted in GE Dal Pont Lawyers’ Professional Responsibility (5th ed, Thomson Reuters, Australia) at [25.15]

That seems right, and there are good reasons.  The Law Society can only be in so many places.  It aids the regulation of lawyers to have every member of the profession act as eyes and ears against misconduct.  Plus, lawyers already have a professional obligation to uphold the law, and the conduct rules are part of the law, so an obligation to report is, in a way, just an extension of that more fundamental obligation.

But there are two problems with r 2.8 as I see it.  Both stem from the plain wording of the rule.  One is frivolous, the other serious.  Both suggest that the rule could be worded better.  Both suggest that r 2.8 will, in practice, be subject to some twisty interpretation.  This latter point is not ideal – every time we have to say “oh the rule says that, but it doesn’t mean that” is an admission that our law isn’t clear and accessible.  But enough harrumphing.

The first problem is that r 2.8, as worded, will require all lawyers to make a confidential report to the Law Society every time they see something like this or this.  What stronger grounds to suspect that a lawyer has been guilty of misconduct are there than a determination by the Lawyers and Conveyancers Disciplinary Tribunal?  And every time they do, the Law Society should receive confidential reports from every lawyer who reads the article.

The second problem is more difficult.  Some lawyers sexually harass people with whom they work.  Sometimes they may do even worse than that.  There will be many cases where the lawyer’s conduct falls clearly within one of the definitions of misconduct.  The next thought to add is that a lawyer’s victims in this respect may well be other lawyers.  If that’s the case, then the victim will be under a professional obligation to make a confidential report.  The victim will have more than at least reasonable grounds to suspect; after all, they were there and experienced it.

I don’t feel qualified to offer an opinion on much on this topic.  But it does strike me as intensely unsatisfactory in some cases that a lawyer who is already a victim in that situation would have what little sense of power and control they can muster in the aftermath removed from them by a rule that says they must promptly tell the Law Society.

There are responses to my point.  Abusers should face disciplinary action.  Prosecutorial discretion will mean victims aren’t prosecuted for a breach of r 2.8.  All true.  But a lawyer-victim in that situation has likely suffered enough in a situation like that without their professional obligations turning on them too.


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