Q&As

Greg Ross on Ethical Issues and the Public Sector

Friday January 19, 2018

Gregory Ross has a unique and broad experience of legal practice. Gregory brings over 37 years legal experience in NSW spanning litigious and non-litigious, civil and criminal contexts. Gregory concentrates his efforts in Government and Administrative Law, particularly advising and assisting the public sector to develop legislation, contracting and process arrangements to achieve the greatest value for NSW taxpayers. Highlights of his career include long term involvement in Public Private Partnerships arrangements including reforming legislation to facilitate major infrastructure projects, including the 2000 Sydney Olympics. This included contribution to NSW Government policy on PPPs and amending legislation to facilitate same. Gregory has held community and legal roles, including membership of NSW Independent Commission Against Corruption's (ICAC's) Organisation Review Committee for a period from mid 2005 and have also led reforms across pharmacy law, e-commerce, gaming, electricity and stamp duties legislation. Gregory is presently a member of the Legal Qualifications Committee of the Legal Profession Admissions Board of NSW.

Greg Ross

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

You can find the full Q&A below.

Please tell us a bit about your practise, including the types matters you are currently involved in and the most interesting matter of the last 12 months?

Client confidentiality prevents me going into detail, but they include a number of challenges to a number of State and Federal Government decisions, some Government funding agreements with unusual security issues and some Inter-Governmental contracts. Being asked to write, and then deliver, a Masters of Laws course on Government, as part of the College of Laws’ APL /LLM  program, has been very interesting.

The most interesting matter was being asked to advise the Government of Nauru on a range of issues, including some contracts with Australian organisations, assist with some legislative drafting and providing Continuing Professional Development type lectures in Nauru, including on Ethics and Professional Standards.

You will be presenting the topic “Ethical Issues and the Public Sector” at the 4th Annual Public Sector Law Conference in March: Can you give some examples of when public sector lawyers approach an ethical issue effectively and ineffectively?

There can be tension between some pure public sector employee expectations and one’s duties as a lawyer.

For example, I am aware of situations in which government employed lawyers attending meetings have been asked not to keep file notes, which can cause all sorts of problems.

Even such things as signing confidentiality agreements as an employee lawyer of an agency might be argued to be inconsistent with and unnecessary because of the primary duty of confidentiality owed as a practising lawyer. Sometimes there is a perceived inconsistency, for practising lawyers, between obligations under some Government Codes of Conduct and their obligations as practising lawyers.

Occasionally issues can arise as to potential inconsistencies of duty between one's employer organisation in Government and a staff member of that Government organisation to whom legal advice is being given in their capacity as an employee of the Government organisation, for example if the employee has done something wrong in the course of their job and they might want to speak to an in-house lawyer in context of "whistleblower legislation".

Even issues such as communication, by email, can raise ethical and/or professional conduct issues. With communication now being probably primarily by email rather than letter it is all too easy for one or more people involved in a matter to hit the "reply all" button and inadvertently send communications to someone to whom it should not be sent. Further, using the "reply all" button might expose a lawyer to criticism for communicating directly with the client on the other side who is represented by a lawyer.

Why do you think ethics continues to be sticking point for lawyers?

I don’t see ethics as a "sticking point" but more the tried and true, yet somewhat fragile, cobweb of support arrangements within which lawyers operate as something of a framework to assist their professional detachment from and dealing with the issues confronting their employer or clients on a day-to-day basis. It is not at all uncommon for clients to fail to appreciate the ethical and professional conduct obligations of practising lawyers, so often one has to explain why, as a lawyer, one might not be able to do exactly what a client initially wants. Whether that is because too many clients watch too many television shows involving lawyers whose ethical and conduct rules, usually in overseas jurisdictions, are significantly different to ours.

What is one thing that public sector lawyers should do/or not do if they unexpectedly find themselves faced with an ethical issues?

The best thing, I believe, is to discuss it [subject to proper respect for confidentiality obligations] with other lawyers who understand their ethical obligations, whether within your own organisation, a friend, or with the ethics start of something like the Law Society of New South Wales.

What’s one tip you can offer practitioners to help maintain an ethical practise?

Aside from reading the rules from time to time and attending the occasional ethics CPD lecture, keep in touch with some other friend practitioners, possibly in the private sector, to bounce ideas off when you feel a need to discuss whether something is an ethical problem. Sometimes an independent look at a situation can demonstrate why a situation is not one which is necessarily an ethical problem.  Also, make use of resources available to members of the NSW Law Society which has Ethics Officers with whom lawyer members of the NSW Law Society can speak. Also available through the NSW Law Society’s Government Solicitors Committee is a publication entitled “A Guide to Ethical Issues for Government Lawyers

You can hear more from Greg at the 4th Annual Public Sector Law Conference seminar, being held on Wednesday 21 March at the UNSW CBD Campus, Sydney.

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