For Commonwealth units, the source is in section 55ZF of the Judicial Act 1903 (Cth). Section 55ZF gives the Commonwealth Attorney General the power to issue instructions for legal services that apply to all work performed on behalf of the Commonwealth. The legal opinion itself can be found in Appendix B of the 2017 Legal Services Guidelines. There is conflicting legal power as to whether courts may consider conduct that does not meet the standard of a typical claimant when determining the question of costs. In Nelipa v. Robertson and Commonwealth of Australia [2009] ATSC 16 to [97], the Court held that one of the most effective compliance tools for ensuring compliance with MNOs and the broader ethical obligations of the legal profession is the potential risk of negative judicial commentary. Because of the high standard placed on governments involved in litigation, courts can be quite devastating in their criticism of how governments have behaved, which can cause serious damage to both the personal reputation of the lawyer and that of the government client. It follows that lawyers who represent the interests of the government or who work as in-house lawyers within the government must act in an irreproachable manner and set a standard that other members of the profession want to emulate. MMOs do not prevent those who represent the government in litigation from being able to defend the government`s interests and act decisively.
NDOs do not either: this is mainly because, as the High Court stated in Thomas v Mowbray (2007) CLR 307 to [260], “the Commonwealth is the best-equipped litigant in the country.” This imbalance of power means that the Commonwealth is held to higher standards than individuals or businesses in their dealings with citizens. At the heart of MMOs is the primary duty of government agencies to adhere to the principles of fairness and honesty when conducting litigation. These commitments are also underpinned by the need to act with absolute accuracy and in accordance with the highest ethical standards. Arrangements have been made for the implementation of OMLs by the Commonwealth Attorney-General. The Attorney General may impose sanctions for non-compliance with the Legal Services Directive under Section 55ZG(2) of the Judicial Act 1903 (Cth). However, these provisions do not require the Attorney General to take enforcement action. Organizations must notify the Office of the Coordination of Legal Services of actual or potential non-compliance with the 2017 legal services guidelines. For example, in Scott v Handley [1999] FCA 404 at [46], Judges Spender, Finn and Weinberg stated: [1] See, for example, section 37M – 37P of the Federal Court of Australia Act 1976 (Cth), section 5 of the Uniform Civil Procedure Rules 1999 (Qld), section 7 of the Civil Procedure Act 2010 (Vic) and section 56 of the Civil Procedure Act 2005 (NSW). [2] Bli Bli #1 Pty Ltd v Kimlin Investments Pty Ltd [2010] QCA 136 to [24].
[3] With the exception of the Queensland MNOs discussed above. These moral, ethical and professional standards form the basis of the codified models of obligations applicable to litigants (MLO). Because of MNOs and the role of lawyers in protecting the interests of their clients, a difficult situation arises where government lawyers must distinguish between acting fairly in accordance with MNOs and resolutely pursuing claims or defending lawsuits brought by or against the government. In contrast, in ACCC v. Leahy Petroleum [2007] FCA 1844 to [25], the Federal Court of Justice stated that “considerations of the compliance of this directive are not relevant to issues of compensation costs.” Despite this conflicting power, it is clear that those advising governments must be aware of the possibility that non-compliance with MNOs may have financial consequences, or at least be a factor to be considered by the court when considering the issue of costs. Thus, MNOs likely go beyond the obligations imposed on private litigants. The main additional obligations are as follows: the Commonwealth Government is in a unique position when it comes to litigation against individuals. There is significant overlap between MNOs, court requirements and ethical obligations. 1. Enforcement by the Commonwealth Attorney General Each of the Commonwealth and state courts has obligations enshrined in the rules that require all parties – not just government agencies – to conduct disputes fairly and efficiently.1 In Priest v State of New South Wales [2007] NSWSC 41, Justice Johnson noted that section 56 of the Civil Procedure Act 2005 (NSW) requires all litigants in civil proceedings before the Supreme Court. The Court of Justice is obliged to act as a model party to the proceedings. Similarly, LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 stated that all lawyers would fulfil obligations similar to those of the MLO in the performance of their primary duties vis-à-vis the court.
The professional ethical obligations of lawyers also overlap with the AMLA.