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Nov 30, 2012

Gillard's legal practices 'less than kosher' but not unusual: lawyers

Was Julia Gillard's behaviour as a lawyer acceptable or not? Our legal affairs reporter asks some lawyers whether she breached any rules in working with the union and her partner.


It’s been labelled a “smear campaign”, a “squalid affair”, a “witch hunt” and the most drawn-out act of politics this year. But the Coalition’s interrogation of the Prime Minister about her time spent as a lawyer 17 years ago has achieved something: it’s confused everyone about the ethics, best practice and legalities of the practice of law.

Opposition Leader Tony Abbott yesterday called for a judicial inquiry into “the whole squalid affair” of Gillard’s work as a lawyer and her “unbecoming” conduct. Crikey asked the legal profession exactly how unbecoming the behaviour was.

Deputy Opposition Leader Julie Bishop claims Gillard didn’t open a file on the union slush fund at Slater & Gordon because she “wanted to hide from the AWU the fact that an unauthorised entity was being set up”. But Michael Bradley, managing partner at law firm Marque Lawyers, reckons not opening a file is “not unusual or out of the ordinary. That’s pretty common place for lawyers.”

Acknowledging it’s not ideal, he said: “There is a difference between best practice and normal practice, in reality.”

A Sydney-based private practice lawyer, who spoke anonymously, agrees it does happen, even among the top ranks. She argues lawyers deal with a lot of paperwork, they have people working for them who will open files on their behalf, and “it wouldn’t be surprising to the entire legal profession that some lawyer doesn’t recall the finer details of a case she worked on 20 years ago”.

Then there’s the issue of whether Gillard should have known something was wrong with the fund. “It’s not a lawyer’s role to second-guess the instructions that are given,” Bradley said. “A principal allegation against Ms Gillard is that she set up this association which didn’t comply with the rules of the union at the time. They are suggesting she should have made herself aware of this and refused to participate. In terms of a lawyer’s obligation, that allegation is just wrong.”

Bradley says when lawyers are instructed by a chief executive or similar, they take instructions from that person and so “it wouldn’t have been in her brief to go behind those instructions and second-guess what he was doing. You can’t facilitate an illegal act, but this just breached the rules of the union.”

In terms of a lawyer’s duty, while “there is a trail being laid to suggest Ms Gillard engaged in illegal and unethical acts, the reality is there is no evidence of that”, Bradley says. Lawyers will often do work for a client that later turns out to be “less than kosher — well yes, that happens a lot”.

“Often solicitors are asked to do something with incomplete or sometimes misleading instructions,” he said. “I am sure any lawyer who has been around for a long time will have found themselves in a situation where they assisted a client, and then found out facts later that changed the complexion of what happened. You should never facilitate an illegal act or knowingly assist a client to do so. But we’re not always armed with complete facts and we’re never armed with hindsight.”

The private practice lawyer who spoke anonymously to Crikey says the criticism of Gillard in acting for Wilson is “ridiculous”. Pointing to the New South Wales Law Society guide of legal professional ethics, she says there are no current rules prohibiting this.

Bradley says while it’s common for lawyers to have personal relationships with clients, in the case of Gillard “it sounds like she was a bit naïve”.

“She was probably in a situation where it would have been better for her not to be acting given her personal relationship, just to protect her own interests … She was a relatively junior lawyer but she wouldn’t have been the first or the last person to do that,” he said.

The Coalition’s accusations about Gillard’s “conduct unbecoming” in reality don’t touch on legal ethics. “We’ll be left with this blurred smudge on her reputation and I think that’s the intention,” Bradley said.


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18 thoughts on “Gillard’s legal practices ‘less than kosher’ but not unusual: lawyers

  1. Hugh (Charlie) McColl

    I was disappointed by the discussion amongst journalists on Fran Kelly’s ABC radio this morning. They consistently referred to the AWU Workplace Reform Association Inc. (the incorporated association registered in WA) as the “slush fund”. I know there’s some grey territory here but in all that has been said and done it was not the association that was the slush fund but the money held in the association’s bank account/s. They are two different things. Julia Gillard can fairly be connected to the setting up of the association, including providing advice to the WA corporate affairs people that this association was not to be mistaken for a ‘trade union’, but it cannot be asserted that Gillard had anything to do with the establishment or operation of the association’s bank account/s. While even Gillard herself has referred to the whole device as a ‘slush fund’ – that’s a hindsight thing. The day the WA commissioner approved the incorporation of the association there would not and could not have been a bank account, therefore there was no slush fund. That all came later when Gillard can fairly claim to be out of the loop.

  2. John Bennetts

    Thanks for the perspective, Kate.

    This whole episode looks sillier and sillier as time progresses. Roll on February, by which time the election agenda will be warming up and Tony’s future, not Julia’s, will be firmly under review.

    He’s the one with precious few runs on the board in his past several innings.

    Like Ponting, calm review indicates that planning an early exit would take a weight off the other team members.

  3. klewso

    I like that – “the difference between best practice and normal practice is reality”?

  4. klewso

    “Abbott doesn’t like women” vs “Gillard the crooked lawyer”?
    Isn’t that the aim of this get-square game?

  5. zut alors

    One imagines the percentage of ethical lawyers equals the percentage of ethical politicians. Interpret that anyway you choose.

  6. Kate Ahearne

    I’m so grateful to Crikey for your sensible response to this ridiculous attempt on our Prime Minister. I don’t believe that she’s right about everything – not refugees, and not Palestine. But I do remember the Dismissal, and ‘children overboard’, and I do understand that if you keep on smearing, and never give up, you will probably, in the end, succeed. You will make smoke, and we will all believe that smoke means fire, even though we know that it aint necessarily so. But history is another matter – history takes her course. None of this is going to look good for the Coalition as time goes by. You can rig votes in all sorts of ways. You can win elections, especially if the press is in your pocket. But if you stoop, there will be a smear on your escutcheon – and nothing can ever take that kind of thing away.

  7. ulysses butterfly

    Again, the example from the College of Law in NSW this afternoon was along these lines: If as a solicitor your son is arrested on a serious criminal matter and you get a call at 3am to bail him out, then it wouldn’t be a conflict of interest to go on down there as a solicitor and try and get the bail sergeant to grant bail over the counter. BUT it would be wrong (implicitly) and another thing altogether to prepare a bail application and appear at the hearing before a magistrate. You should get an independent solicitor to do that work.

  8. Serenatopia

    Barry Jones poignantly writes:

    ‘Politics is treated as a sporting contest, with its violence, personality clashes, tribalism and quick outcomes. The besetting fault of much media reporting is trivialisation, exaggerated stereotyping, playing off personalities, and a general ”dumbing down”. This encourages the view that there is no point in raising serious issues months or years before an election. This has the effect of reinforcing the status quo, irrespective of which party is in power and at whatever level, state or federal.’

    The discourse of our elected officials is appalling. A very relevant question is posed— Who is actually leading our country?

  9. John Bennetts

    @ Serenatopia:
    Wrong question.
    We know who is running the country.
    What we don’t know is what those who are currently sitting on the Opposition benches would do if given the chance. Judging from their recent form in Question Time, their sole and only interests have to do with side issues and personalities and avoidance of the business of the House.

    “When will the Opposition produce a written down (for Tony’s benefit), believable set of policies in sufficient detail for an opinion to be formed about the merits of same?” That is the question.

  10. Arty

    Klewso , Mr Abbott might or might not like women.

    We now have his “commitment” to pursue assumed illegalities by the PM through a “judicial inquiry” (SMH 1 December 2012.

    Remember 2003 when political opponent Pauline Hanson was actually imprisoned until her appeal was supported by a court that determined her innocence.

  11. klewso

    Indeed Arty (the whole conseravtive point to this looks like little more than an attempt at “evening up the polls”. It doesn’t matter how they do it or who/what it hurts in their slash and burn pillaging, including our parliamentary process – as long as they “win”) as I noted yesterday (item 56 – AWU Scandal) and who was behind that “Get Hanson” slush fund, the beneficiary, funded as that was?

  12. Leon Miller

    All that would be OK if it was not for a little fact that she had another client AWU for whom she worked since 1987(?) surely she would have been aware who Wilson was in the union. For her to then take instructions privately and vouch for to open an association with same name must have sent alarm bells off and questions.

    And for her today to make it sound like I am the Prime Minister how dare you even consider such a thing is a bit incorrect. Because at the time she was just a lawyer and would have seen it quite normal to bend the rules sometimes if she could, especially for her boyfriend.

    A responsible honest person would at that time in 1995 also felt alarmed and felt it is important to contact your other client who is being defrauded so they could protect themselves, but she did not. May be she was protecting herself at that time as well.

  13. Arty

    Leon: Since when has “responsible honest person” equaled “lawyer”?

    Can I expect to see an argument that “responsible honest person” also equals “politician”?

  14. Hugh (Charlie) McColl

    Leon Miller, it’s all very well to say that a lawyer listening to their client must have heard alarm bells going off. But does a lawyer, even hearing alarm bells, have an inescapable legal obligation to reveal all? You think they have. But as Julia Gillard herself said in relation to the WA commissioner who accepted the incorporation application, she personally had no legal obligations whatever regarding that document’s fidelity. That issue is between the commissioner and the signatory, Mr Blewett. It is completely irrelevant to speculate on whether the lawyer has any obligation to follow every step of every document to make sure the client doesn’t make a mistake, intended or otherwise. No amount of hindsight and obligation-fudging can change that.
    Also, you say she bent the rules. I’d say there’s a bit of terminological inexactitude there because again, you have no evidence. You say, if it seems a bit dodgy then it is. It must be. There’s no other explanation. Well, tough, because it turns out there is another explanation. It’s about as acceptable as John Howard’s children overboard or Downer’s AWB explanation but it still flies because the alternative can’t be sustained by any evidence. Do we like it? No. Did we expect higher standards? Well, yes and no. Can we move on now? Yes please!

  15. Mike Moore

    40 years on from the election of the Whitlam Labor government and the Liberals still don’t get it that they don’t have the God given right to be the government of this country. Abbott’s demeanour and actions constantly shout out aloud that they still believe that to be so.

    Instead of learning from the loss of the last two election and reinventing itself the Liberal Party has instead chosen to become more conservative with their antagonism towards Labour becoming an absolute hatred. The zealots in the party have taken control and gambled that a poisonous campaign of character assassination will bring them success. Taking the electorate for granted like they have is foolish and like the Republicans in the US they might well find out that choosing to not act for all will lead to failure.

    With their current extremist views and attitudes I certainly don’t want them as the next government.

  16. Merve

    This is exactly what John Faine has been saying from the start. He has been ridiculed for saying it’s all a beat up, but this article aligns with his claims 100%.

    The threat of a “judicial inquiry” is Abbott’s reckless attempt to turn parliament into a vehicle for launching legal attacks.

  17. Dogs breakfast

    Hugh McColl and others ask the right questions and make the right observations. In a general sense, the very reason you employ a lawyer is to make sure you can skirt around the black letter and the intent of the laws of the land that prohibit you from doing a certain thing. This is actually the very heart of what lawyers do, not a side issue, the very reason for their existence.

    And the relationship thing, well that’s just a furphy. For a medical practice it is appropriate not to treat your son or daughter, lover or spouse, but for legal representation there is not the same need for ‘independence’. The Law Society would have that policy because it creates more work if the legal farternity can’t act for friends, relatives etc.

    Besides, where’s the cut-off point for that? Close friends, friends, friends of friends. When is a live-in relationship more than a friendship?

    Just balderdash. If TA keeps his promise and does actually create a judicial enquiry (assuming he wins the next election) this would represent a new low, not just for him but for politics in general.

    Bah humbug!

  18. Dogs breakfast

    Legal FARTernity! That’s rich 🙂

    God I wish I had meant that one!


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