The expectation that you will establish and maintain professional boundaries with your clients underpins many of the duties and obligations prescribed by the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the professional conduct rules).
At a justice system level, putting in place professional boundaries enhances your ability to comply with the following:
Lacking professional distance from your client (or their cause) risks distracting you from this duty, which is paramount and prevails to the extent of inconsistency with any other duty. Your objectivity, your independence and your forensic judgement – on which the court relies – may be reduced.
Your integrity and trustworthiness are fundamental to your reputation as a lawyer and to your relationships with clients and other parties in the justice system. When a lawyer fails to act with integrity because their professional boundaries are compromised, the integrity of the justice system as a whole is undermined.
Fitness to practise law requires the personal confidence of your fellow practitioners and judges, which you risk losing if you are perceived to be too closely aligned or involved with your client. Similarly, if your behaviour with clients would cause the general public to doubt or question your integrity, you are potentially compromising the reputation of the profession.
Setting and upholding professional boundaries helps you to acquit your obligations to your clients, including:
People seek out lawyers to assist and advise on legal problems that they cannot themselves navigate, often because of lack of expertise, but also because they are too emotionally involved to make clear-headed decisions that are in their best interests. Your ability to recognise — and to provide objective and independent advice in — your client’s best interests is reduced when you lack appropriate professional distance.
Not having clear professional boundaries with your client and other parties (e.g. your client’s family, friends or associates, other lawyers, police officers etc.) increases the risk that you will inadvertently breach your client’s confidentiality.
A note on the Human Source Management Act 2023
The Royal Commission into the Management of Police Informants (RCMPI) recommended establishing a legislative scheme for the management of human sources. This recommendation was implemented with the passage of the Human Source Management Act 2023.
It is important to be aware that, although the Act permits Victoria Police to register lawyers as human sources and use privileged information in specific circumstances (i.e. with the prior authorisation of the Supreme Court of Victoria), the Act does not change lawyers’ professional obligations and duties.
Lawyers are ethically and professionally obliged to maintain client confidentiality, other than in specific and confined circumstances. If they choose to inform on their clients to police, they are likely to do so in breach of this obligation, as well as their obligations to act in their clients' best interest, and to disclose or avoid any potential or actual conflict of interest.
It can be very difficult to avoid a personal conflict of interest if you have a close connection to your client, or if their matter has some connection to your own affairs, whether personal or business.
Having clear professional boundaries in place is also important for you personally. For example, it protects you from the suspicion that you are not complying with:
It is not uncommon for lawyers to represent clients with strong views about how their court matter should be run and the arguments their lawyers should make. However, it is a key professional obligation for you to exercise independent forensic judgement in this situation. The court relies on your expert assistance to help narrow the issues in dispute and resolve matters as expeditiously as possible – this is easier to do when good lawyer-client boundaries are in place.
Disciplinary and other consequences when professional boundaries are compromised
It is important to be aware that where professional boundaries are compromised and a breach of the professional conduct rules occurs, disciplinary and other consequences may follow.
We may investigate and take action including:
- finding that a lawyer has engaged in unsatisfactory professional conduct and making appropriate disciplinary orders, e.g. fines, reprimands and orders to add conditions on a practising certificate;
- bringing disciplinary charges before the Victorian Civil and Administrative Tribunal for unsatisfactory professional conduct or professional misconduct. This could result in the suspension or cancellation of your practising certificate;
- deciding that a lawyer is not fit and proper to hold a practising certificate; or
- commencing a compliance audit at a law practice.
If you engage in conduct or activities that are not part of your employer’s legal practice there may be no cover under their insurance policy for claims resulting from that conduct or activities (e.g. if you hold an employee/government/corporate practising certificate but provide legal services to others in a personal capacity outside your employment).
Many professional indemnity insurance policies also do not cover costs associated with disciplinary investigations and hearings, and they will also not cover any fines or penalties that may be imposed.
In exceptional circumstances, a court may rely on its inherent jurisdiction to restrain you from acting if your independence is called into question (Canberra Residential Developments Pty Ltd v Brendas [2009] FCA 1484). The test to be applied is ‘whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice’ (Kallinicos & anor v Hunt & ors [2005] NSWSC 1181, at para. 76).
In criminal proceedings, even the appearance of a lack of independence has resulted in an otherwise valid conviction being set aside, wasting scarce public resources and potentially undermining public confidence in the administration of justice (see R v Szabo [2000] QCA 194).
In extreme cases, criminal charges may be brought against you, where a breach of professional boundaries has resulted in your breaking the law.