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.

Kate Gibbs

Freelance reporter specialising in legal affairs

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.

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