Fortunately not everyone in the legal services industry believes in taping mouths. While it was revealed last Friday that the Law Council of Australia and the Queensland Law Society think that lawyers should shy away from media comment about a client’s case, fortunately the Law Institute of Victoria takes a different view.

There are moves across Australia, according to sources close to the action, to have the LIV’s more relaxed stance on how lawyers deal with the media adopted as the national template.

If that happens, the beneficiaries will be lawyers, their clients, the media and the community. The Law Council of Australia and their allies in the QLS – the body which up until recently disgracefully persecuted any non-lawyer who wanted to set up a conveyancing business – say that lawyers should essentially give uncoloured information to the media about cases, and leave it at that. This is absurd in a world where the media and the community rightly demand more than one-line technical answers to questions from interviewees.

In other words, when a lawyer gets asked about his or her client’s plight, under the Law Council and QLS view of the world, they can simply say something asinine like “they plead not guilty” and leave it that. They are not allowed to give their own opinion on the case, or it would seem, proffer comment about the tactics of their opponent or provide any remarks about the judgement they get in a case.

The LIV rule, on the other hand, simply says: “A practitioner must not publish or take steps towards the publication of, any material concerning current proceedings for which the practitioner is engaged which may prejudice a fair trial of those proceedings or prejudice the administration of justice.”

This gives defence lawyers in criminal trials, for example, the right to complain about government or police conduct. It would allow a plaintiff lawyer the right to speculate about the legal tactics of cigarette companies in tobacco litigation.

Hopefully the LIV will win the day. It has the support of the Australian Lawyers Alliance, and in jurisdictions where lawyers are prepared to be media-friendly, such as New South Wales and Victoria, it is hard to see that the Law Council /QLS rules would be workable.

The law needs to grow up and use the media much more readily than it does. There are a lot of faults in the US system of justice – elected judges for one – but when it comes to lawyers and the media our American friends essentially have got it right.

Lawyers should be able to spin and counter-spin against the tactics of governments and prosecution agencies which notoriously leak material to the media about cases with a view to colouring public opinion.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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