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.