Dan Rogers on Ethical Issues for Criminal Lawyers

Tuesday January 9, 2018

Dan Rogers first joined Robertson O'Gorman Solicitors in 2005. He is one of the two Directors of the firm. Dan has obtained a Specialist Accreditation in Criminal Law, making him one of the top-performing solicitors in Queensland and one of 28 people in Queensland to receive that accreditation. He graduated from the University of Queensland with a Bachelor of Laws (Honours) and Bachelor of Arts majoring in psychology and criminology. Dan regularly presents to other solicitors at Queensland Law Society conferences and seminars on criminal law. He also conducts guest lectures on criminal law at the University of Queensland. He has been published in various law journals and has contributed to legal texts on criminal law. In 2013, he started his own blog, http://danrogers.com.au/ where he regularly posts about current criminal law and social justice issues. In 2012, Dan completed a Masters of Law from Melbourne University (with Honours). Also in 2012, he worked at the International Criminal Court (The Hague, Netherlands) in the Office of Public Counsel for Defence. Dan has a long association with Caxton Community Legal Centre where he is currently the Secretary of that organisation. He is a member of the ethics committee of the Queensland Law Society. He is also a member of the Queensland Sentencing Advisory Council, advising the Attorney-General on sentencing matters. Dan was named as a leading criminal lawyer in Queensland and Australia by Doyle's Leading Lawyers List in 2015, 2016 and 2017. As a solicitor advocate, Dan regularly argues his own cases in the higher courts instead of briefing counsel. He is ambitious and confident in his representation of clients at all court levels. As well as practising as a criminal law specialist, Dan often represents legal and health professionals facing disciplinary allegations. He also represents individuals and companies facing workplace investigations. Dan is married with one son and one daughter. Dan Rogers

We had the pleasure of sitting down with Dan recently to discuss key challenges and opportunities facing the industry today.

You can find the full Q&A below.

What does your practice look like? What does your typical day look like?

I am the Legal Director of Robertson O’Gorman Solicitors where I have worked since 2005. We are a specialist criminal defence firm although I also practice in professional discipline and work health safety matters. I chose criminal law for many reasons. I love representing the rights and interests of vulnerable individuals in crisis. I like the idea of levelling the playing field when a client faces a prosecution by the State with all its might and resources. I love court rooms, advocacy and fair outcomes.

I could not imagine myself stuck behind a desk all day reviewing contracts or acquisitions. My day’s activities are rarely planned. People get arrested, warrants get executed, bail applications need to be made and new and interesting cases cross my desk. The variety of personal backgrounds of my clients is always interesting.

What’s one tip you can offer younger practitioners starting their criminal law career?

If you want to achieve a truly rewarding career in the criminal law, you will best find this through a broader involvement in the law. A focus on the job of individual cases as an employee of a private firm or a government department will only take you so far. Think about a broader conception of your profession. I try to achieve this through my role as Secretary of Caxton Legal Centre and as a member of the Queensland Sentencing Advisory Council.

In my view, all lawyers, because of their knowledge of the law and because of their privileged position in society, have a responsibility to contribute to the community, to law reform and to social justice initiatives. This ties in very well with the practise of criminal law. Doing this is rewarding but it also frames your actual legal practice; making you more aware of the broader implications of laws, your clients’ legal issues and how best they can be resolved. 

What are some of the typical ethical issues a practitioner with criminal practice might face?

Of course, the fundamental ethical duties of solicitors, as contained in the Australian Solicitor Conduct Rules, apply equally to criminal lawyers. However, for this practice area, a very sharp and consistent ethical compass is required. There is a heavy emphasis on advocacy and litigation. Criminal lawyers need to pay close attention to the ethical rules concerning their independence (i.e. not simply being a mouthpiece), avoidance of personal bias, frankness in Court, maintaining the integrity of evidence and care in dealing with opponents and witnesses. Great care in making public comment during court processes is also important.

What’s a mistake you see practitioners sometimes make related to their professional ethical duties?

At the moment, conflicts of interest regarding multiple co-accused in criminal proceedings is an important issue in light of the recent judgment of R v Pham [2017] QCA 43 and Rule 11 of the Australian Solicitors Conduct Rules. Conflicts can also arise through firms representing multiple people being investigated in the same operation by the Crime and Corruption Commission. A regular issue is the effectiveness of the formerly labelled “Chinese Walls”, now referred to as information barriers, in combating conflicts within legal firms.

What are some of the consequences of ethical misconduct?

A solicitor’s reputation as being ethical and honest is something that takes real time to achieve. It can take one serious mistake for it to be lost. Honesty at all times is critical to your reputation and to your duty to the court. Ethical misconduct can also lead to complaints being made to the Legal Services Commission which can result in disciplinary proceedings and potentially, sanctions being imposed such as suspension of a practising certificate or having a person’s name removed from the Roll of Legal Practitioners.

Are there any ethical issues coming in the future that you think practitioners should keep on their radar?

Solicitors and firms, when receiving funds from clients, need to be aware of the risks associated with recklessly engaging in money laundering or receiving the proceeds of crime. An understanding of important legal and ethical obligations is critical to avoid liability, which can include criminal convictions and/or imprisonment. As well as understanding the relevant laws, the implementation of appropriate office procedures is a necessary safeguard against these risks.

You can hear more from Dan at the 13th Annual Criminal Law Conference seminar, being held on Friday 23 March at the Mercure Hotel Brisbane, Brisbane.



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