My Reflections as an Observer Participate at the United Nations Commission on International Trade Law 68th Session Working Group II – Dispute Settlement Meetings United Nations Headquarters in New York Feb 5-9, 2018

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.



My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.





[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

[3] 67th session, 2-6 October 2017, Vienna


On the passing of Frank Sander: A critical, grateful view from the Antipodes

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of  Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based)  depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.


Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement.  Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges.  The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper  here).

More than 40 years later, Sander’s call has largely been answered.  We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards  a “more modern multi-option  dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).

Transforming the family law system: determination or self-determination?

pexels-glass ball on stump-235615

The Senate Legal and Constitutional Affairs Legislation Committee is currently inquiring into the Bill that proposes to introduce a Parent Management System, ‘an innovative forum for resolving simpler family law disputes between self-represented litigants’. The Committee is due to report on 23 March 2018.

The Law Council of Australia opposes the introduction of a new layer of complexity into an already complex system. It argues that decisions about children should be made by judicial officers, and that the funds allocated to the proposal would be better used to strengthen existing court services including counselling and contact centres.

The proposed Parent Management System is one of a number of budget initiatives injecting much needed resources into the family law system. This included funds for additional domestic violence units, additional family consultants and to support community legal centres and ATSI legal services in their important work.

A bill was also introduced in December 2017 to extend the jurisdiction of state and territory magistrate’s courts to determine more disputes about property, largely as a result of recommendations made by the Family Law Council report on families with complex needs and the Victorian Royal Commission into family violence.

Parent Management System

How the proposed Parent Management System will work is not yet clearly articulated. Such a model was proposed by a family law reform paper and described a ‘multi-disciplinary and inquisitorial tribunal freed from the constraints of the adversarial system’, intended to be informal, cost effective, simple and user-friendly.

It was suggested that such a tribunal could be modelled on the Oregon Informal Domestic Relations Trial. This is a simplified trial process suspending the rules of evidence and allowing parties to speak directly to the judge.  It was specifically intended to give self-represented litigants a voice in the proceedings, and considered suitable for cases involving domestic violence. Unfortunately the evaluation of the process was not able to recruit sufficient self-represented litigants to determine what they felt about the trial, but lawyers thought their clients found it fairer and more timely.

Determination or self-determination?

Both trials and tribunals are determinative processes – experts consider or gather evidence and impose a decision on the parties.  This may be appropriate in many instances, especially where one or both parent’s capacity to reach their own decisions is compromised by complex histories of serious family violence, mental ill-health, addictions and socio-economic disadvantage. The research makes it clear that vulnerable parties with complex histories dominate family courts and other family law services.

Being heard

The research base informing the Oregon model indicated that self-represented litigants wanted a greater voice in and more control over post separation processes. Research in Canada also supports the view that being heard is an important motivating factor for many self-represented litigants.

Mediation can provide the opportunity for parties to speak, be heard, to work collaboratively and cooperatively to decide their own outcomes. Mediation is not always suitable for parties with histories of violence however, as it can be difficult for the mediator to manage power differentials to ensure parties can participate safely and fully.

A safe, child-sensitive and legally-assisted mediation model

A safe, child-sensitive and legally-assisted model of family mediation has been developed in Australia. It is designed to support parties who have experienced and perpetrated family violence to understand the process, learn how to communicate and negotiate safely, take responsibility for their violent behaviour and work out outcomes that are best and safe for their children with the support of a multidisciplinary team professionals.

Professional collaboration

Its multi-agency, multi-professional case-management approach models the kind of respectful and co-operative professional collaborations we should be encouraging in the family law system. It offers an example of effective service integration within the family law system.

Coordinated family dispute resolution

Coordinated family dispute resolution has been piloted, evaluated and demonstrated in many instances to safely ‘empower parents to make appropriate arrangements for their children’, and its broader roll-out has been recommended.  It also achieves the objectives of the Parent Management System –  informality, cost effectiveness, simplicity and user-friendliness.

Inquiries have recommended implementation of CFDR and this kind of case-managed integrated service for complex matters in the family relationships sector. The adoption of CFDR has been recommended by family law community agencies and the model is being adapted by some services to better support vulnerable separating clients.

There is no easy solution to resolve family law disputes, especially where the matters are complex and parties unrepresented.  We are unlikely to transform it, but we can improve it.

Surely a safe, proven, collaborative, integrated, cost-effective and self-determining process is preferable for many parents and children, the family law system and the broader community, to a determinative process that is unknown and untested?

This post has also been published on my website and on Linked In.

Experiencing the Potential of Mediation

The Australian ADR academic community is committed to ensuring that ADR is embedded across the syllabus of Australian Law Schools. This has been assisted by the agreement that ADR will be delivered within Civil Procedure as part of the Priestley 11.

This is an important achievement and owes some of its success to the efforts of our own ADR Research Network members who have championed the change – including, for example, Rachael Field and Kathy Douglas. As part of building the value of ADR teaching and learning, we continually seek opportunities for students to experience the potential of ADR processes, and to develop as practitioners whose skills are relevant nationally and internationally.

The ICC International Commercial Mediation Competition is one such opportunity. An annual event offered in Paris, the ICC now also offers an annual Asia-Pacific Commercial Mediation Competition, for teams who wish to compete with our Asia-Pacific neighbours.

I am just back from Paris where the 4 team-members from UNSW, were this year’s  competition winners.

ICC 2018 winners (1)

Team UNSW ICC Winners 2018. Photo Credit: ICC, with permission

Approached by Kluwer to blog about the competition and the opportunities it provides to students internationally, I was delighted share my views about its enduring value which stretches far beyond the competition itself.

My blogpost includes seven insights that provide a foundation for successfully coaching a team as I have had the privilege to do for the past 12 years. I also hope my insights might be a resource for those who are teaching negotiation, mediation and dispute resolution at a tertiary level.

See you in Paris 2019!

Save the Date: 7th ADR Research Roundtable 2018

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.

National Mediation Conference 2019


Photo Credit Tim Hughes Creative commons

The date for the next National Mediation Conference has now been set. Originally the bi-annual conference was to be held in September 2018, but it was delayed.

The Board of National Mediation Conference has now confirm that the next National
Mediation Conference – NMC2019 – will convene in Canberra at the National Convention Centre on 15 – 17 April 2019. This is just before the Easter/Passover break.

A website will be established shortly and we will announce on this blog the URL.

The Board of National Mediation Conference have stated:

The Board of National Mediation Conferences Ltd is looking forward to a very successful conference in 2019, and welcomes interest and participation from the mediation community, as well as from the broader ADR community.

Regulating the Conduct of Legal Representatives in Mediation – Arguments for Maintaining the Status Quo

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.


Image by Mohammed abushaban (Own work) [CC BY-SA 3.0 (, via Wikimedia Commons

Although lawyers are frequently called upon to represent their clients in mediation, lawyers’ professional associations have not issued additional or supplementary rules of conduct for mediation practice. Some law reform agencies[1] and commentators[2] have argued that mediation requires its own rules but discussion on the issue has stalled. In this short account of a paper delivered at the ADRRN Roundtable, I argue that the status quo – in which lawyers in mediation are governed by the current rules of conduct – should be maintained. The rules provide adequate guidance for lawyers, and adequate protection for persons impacted by mediation.

Position of legal representatives under existing rules of conduct

In the absence of specific rules for mediation, legal representatives are governed by the profession’s generic rules of conduct,[3] together with other components of the law of lawyering (including general law like the law of contract and torts; specific legislation such as the Legal Profession Legislation; and general legislation like Australian Consumer Law). In Australia, there is one set of professional conduct rules for solicitors (most state/territory rules are modelled on the Australian Solicitors Conduct Rules issued by the Law Council of Australia)[4] and another for barristers (again in most jurisdictions, they are based on model rules, the Australian Bar Rules issued by the Australian Bar Association).[5]

One accommodation for mediation has been made in the rules – the definition of ‘court’ has been extended to include ‘mediations’ (but this is not the same as making special provision for mediation and is itself a source of some confusion as to whether the drafters meant the mediation process or mediators).

The legal profession’s rules of conduct are general in their orientation. They set out general mandates for lawyers such as a duty to act with honesty, courtesy and fairness towards every person and entity with whom lawyers engage in the course of legal practice (these rules tend to encourage cooperation between practitioners); and a duty to act in the best interests of clients. The courts have held that general terms, such as that of ‘courtesy’, take their meaning from the context in which particular behaviour occurs.[6] The rules also include general prohibitions such as a duty to refrain from conduct which might lead the legal profession to be held in disrepute.

The rules also include a series of specific duties which can be categorised according to whether they are owed to courts, clients, and other parties including opponents. These include a duty never to mislead or deceive the court; a duty of confidentiality owed to clients; and a duty not to mislead opponents.

While there is a duty of honesty owed to everyone with whom the lawyer has dealings, where honesty refers to accuracy of information conveyed, there is no duty of candour ie there is no general duty to reveal information to courts, mediators, opponents and other third parties. There are exceptions where there is an obligation to speak up including the following:

  1. When dealing with a court, an advocate has a duty to inform the judge about relevant legal authorities and legislation.
  2. In ex parte applications (ie those where the other party is absent) an advocate must inform the judge of any relevant adverse matters of fact.
  3. If a practitioner has made a statement which, though true at the time it was made, has since become false, he or she must correct the statement (this was the rule offended by Messrs Mullins and Garratt).[7]
  4. A practitioner also has an obligation to correct a statement which is misleading because of the absence of some qualifying statement (this exception covers half-truths).

The rules establish a kind of hierarchy of obligations. The lawyer’s paramount obligation is to the court and the administration of justice (which is, in essence, a duty owed to society and not to an individual judge). The lawyer’s secondary obligations are owed to his or her clients. If there is a conflict between duties owed to the court (and the administration of justice) and those owed to a client, the duties owed to the court must prevail. The lawyer’s tertiary obligations are owed to third parties. If there is a conflict between a duty owed to a client and a duty owed to a third party, the duty to the client will usually prevail. Some authors point to this aspect of the regulatory system governing lawyers and argue that the rules give insufficient weight to the interests of other parties. However, the law of lawyering recognises that there may be circumstances where a breach of a duty owed to a third party – such as breach of an obligation not to mislead, is so serious as to amount to a breach of the duty owed to the administration of justice. In this way, the law recognises that lawyers in negotiation should refrain from assisting a client by ‘unconscionable’ means and from aiming to achieve ‘unconscionable’ ends.[8]

In my opinion, taken together these provisions are suitable for the regulation of lawyer conduct in mediation. Given the nature of mediation, it is the rules governing communications which are of most importance. In essence, the rules provide that: a lawyer is not generally required to reveal information, but if he or she chooses to speak,[9] the information conveyed must be accurate. This is a very effective measure for it is impossible for a party to put a case, or to respond to an opponent’s case, without making some statements.

Problematic aspects of proposals for new rules

There have been calls for the promulgation of rules of conduct requiring higher standards of disclosure, good faith participation, a duty of cooperation and an (unspecified) duty of fairness, and use of non-adversarial interest-based negotiation. There are problems with these proposals, including the following:

  • lack of consensus among proponents for change over the appropriate standard of disclosure required in mediation.
  • lack of consensus over, and uncertainty attached to, the meaning of concepts such as good faith and cooperation.
  • difficulty in articulating rules of this nature with any precision and in specifying what is and what is not acceptable behaviour.
  • difficulties of monitoring and enforcing compliance with rules of the kind proposed together with possible inroads which might be made into the confidentiality of the mediation process.
  • destruction of the informality and flexibility which are hallmarks of mediation.[10]

There are a range of problems with proposals for legal representatives to use interest-based negotiation and to be less adversarial in their conduct. They include the following:

  • parties need partisan legal representation in mediation to protect and enhance self-determination and its underlying requirement of informed consent. Parties need to know their legal rights and obligations.
  • every negotiation will involve some positional negotiation and every negotiation benefits from some element of competition.
  • every negotiator must choose, within the changing dynamics of negotiation, where they should be at any given moment in time on the ‘tightropes of negotiation’, treading a line between honesty as against misrepresentation; openness as against non-disclosure and cooperation as against competition.

These problems may not be insurmountable but more focused discussion involving all stakeholders is required. In the interim, the current rules of conduct provide adequate guidance for lawyers in mediation and adequate protection for the parties and other persons impacted by a mediation. The existing rules of conduct allow legal representatives to exercise discretion in relation to matters such as candour, cooperation and the approach to negotiation that they adopt at any given moment in time. This is perfectly consistent with the nature of mediation with one mediation likely to be different from the next. Despite the diversity of mediation practice, the legal representative’s basic position remains the same and this is reflected in the current rules of conduct. A lawyer remains an advocate for the client’s interests but he or she recognises that some disclosure is necessary for a productive mediation, and that cooperation with an ‘opponent’ and settlement is sometimes in the client’s best interests. Save for the fact that the drafters need to clarify the meaning of ‘mediation’ in the definition of court, the current professional conduct rules are ‘about right’.

[1] For instance, the Australian Law Reform Commission recommended the development of standards of conduct for legal representatives in ADR processes in its Managing Justice Report issued in 2000: see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [3.119]. Also see National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, A Report to the Attorney-General (February 2011).

[2] In Australia, see Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 2nd ed, 2014) 217-25. In the US, see Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002-2003) 39 Idaho Law Review 399, 413-4; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibility’ (1997) 38 South Texas Law Review 407, 410.

[3] See generally, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason’ (2013) 16 Legal Ethics 182.

[4] Australian Solicitors Conduct Rules were adopted by the Law Council of Australia in June 2011 and last updated in 2015. The rules, as adopted, differ slightly in each jurisdiction.

[5] These rules also differ slightly in each jurisdiction. See, for example, in Victoria and NSW, the Legal Profession Uniform Conduct (Barristers) Rules 2015, commencing operation on 1 July 2015 and current at 2 September 2016.

[6] Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 (11th September 2009) [43] (Higgins CJ, Gray and Refshauge JJ).

[7] See Legal Services Commissioner v Mullins [2006] LPT 012 (23 November 2006); Legal Services Commissioner v Garrett [2009] LPT 12 (1 May 2009).

[8] Murray L Schwartz, ‘The Professionalism and Accountability of Lawyers’ (1978) 66 California Law Review 669, 671.

[9] Of course, the lawyer must comply with the duty of confidentiality owed to a client and will, in most circumstances, need to obtain the client’s consent to reveal the information.

[10] Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987-1988) 1 Georgetown Journal of Legal Ethics 311, 319.