by Benjamin de Santis

Like all legal practitioners, I’ve been schooled and counselled throughout my academic career by my university lecturers to adhere to the vast array of ethical obligations and duties demanded by our chosen profession.

Naturally, discussion of any such obligations and duties generally centred on the Professional Conduct and Practice Rules 2005 for Solicitors and/or the Victorian Bar Practice Rules 2009 for Barristers; however, rarely can I recall any substantive discussion regarding the obligations imposed on government lawyers. 

In order to correct the balance somewhat I thought it might be useful to blog about what it means to be a government lawyer – and especially a model litigant.

Section 55ZF of the Judiciary Act 1903 (Cth) confers power on the Attorney-General to issue Legal Service Directions. The Legal Services Directions 2005 impose an obligation on all government lawyers to act with ‘complete propriety and in accordance with the highest professional standards as a model litigant’.¹

The nature of these obligations are expounded in Appendix B of the Legal Services Directions 2005; which include, but are not limited to:

• Full compliance with the relevant rules, practice notes and directions issued by the various courts and tribunals;

• Responsibilities under the Financial Management and Accountability Act 1997 (Cth) to promote the efficient, effective and ethical use of Commonwealth resources;

• Initiating (or defending) an action only after careful consideration of whether the dispute could be resolved by way of Alternative Dispute Resolution processes;

• Promptly dealing with claims and not causing unnecessary delay;

• Handling cases in a consistent manner;

• Not taking advantage of claimants without the resources to litigate;

• Not pursuing appeals without a reasonable prospect of success (unless in the broader public interest); and

• Apologising where the Commonwealth or its representatives have acted wrongly or improperly.

The common law also reinforces the model litigant concept in holding a long-standing expectation that the Crown, as a party to litigation, has a duty to observe a standard of fair play and exhibit the highest standards in dealing with its subjects.²³

Interestingly, the concept also appears to transcend Australian jurisprudence, with the United States Supreme Court opining that a lawyer appearing for the government is ‘the representative not of any ordinary party to a controversy … and whose interest … is not that it shall win the case, but that justice shall be done.’⁴

In light of the model litigant obligations, it may sound to some that a government lawyer is somewhat constrained and perhaps even more likely to be less effective than their private counterparts; however, it is also important to note that the model litigant obligations do not prevent the taking of legitimate steps to pursue, test, or defend legal claims.⁵

The fundamental purpose of the model litigant obligations, in my view, is to ensure that government lawyers act fairly and to the highest standards in performing their fundamental task: to administer the law and safeguard public revenue, programs, services and infrastructure that benefit us all.

In my own experience, the model litigant obligations have greatly assisted in the promotion of good decision-making, effective case management and efficient use of scarce resources; and ensures that not only do I act passionately on behalf of my client, but with a clear conscience too.

1 See note 2 to Appendix B of the Legal Services Directions 2005

2Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342 (Griffith CJ).

3Thomas v Mowbray (2007) 233 CLR 307, 399 [260] (Kirby J)

4Berger v United States 295 US 78, 88 (Sutherland J) (1935)

5See note 4 to Appendix B of the Legal Services Directions 2005

Benjamin de Santis is a government lawyer currently working with the Australian Taxation Office.