1. Introduction
1.1. Who should read this Guidance Statement?
This Guidance Statement is for solicitors and law practices.
1.2. What is the issue?
This Guidance Statement considers the ethical issues faced by solicitors working in multi-disciplinary practices and in particular, focusses on the Community Legal Centre ('CLC’) experience where practitioners interact with social workers.
It is often the case that clients who require legal services also require assistance in relation to a range of other issues, including healthcare, housing, finance, immigration and other social issues.
Providing clients with avenues of support from professionals in other disciplines, such as assistance from social workers, is particularly beneficial in the situation where a client has multiple, overlapping needs.
However, such collaboration can raise significant ethical issues, particularly in relation to the duty of confidentiality and the provision of ongoing services to clients with impaired capacity for the presenting legal matter.
1.3. Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.
2. Background
It is not often the case that a legal problem is in fact purely ‘legal’. Rather, legal practitioners are commonly faced with clients who experience multifaceted issues that extend beyond, and impact upon, identifiable legal problems.1
Since the establishment of CLCs in Australia, lawyers have worked closely with social workers to assist their clients’ diverse range of needs. This collaborative model has developed over time and is now a model which is specifically funded by State and Federal Governments. There is an expectation that Legal Assistance Services (CLCs and Legal Aid Commissions) will work in an integrated manner to deliver holistic services. This multi-disciplinary approach allows for clients’ legal issues to be dealt with in the context of their broader social needs and concerns.2 It is predicted that this model will contribute to improved human rights outcomes for clients experiencing vulnerability, disadvantage and exclusion from accessing the justice system.
However, for those lawyers who work in a multi-disciplinary practice, such as a CLC, or for those who might be considering interdisciplinary collaboration with social workers or members of another profession, a number of ethical and professional challenges arise.
3. Ethical principles
ASCR
Rules 8 and 9 provide:
8. Client instructions
8.1 A solicitor must follow a client’s lawful, proper and competent instructions.
9. Confidentiality
9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:
9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or
9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,
EXCEPT as permitted in Rule 9.2.
9.2 A solicitor may disclose confidential client information if:
9.2.1 the client expressly or impliedly authorises disclosure;
9.2.2 the solicitor is permitted or is compelled by law to disclose;
9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;
9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;
9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or
9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.
4. Maintaining confidentiality with a third party
4.1. Practical risks
The different ethical obligations binding on various professions have inherent practical implications for multidisciplinary practices.3
One of the key concerns for a legal practitioner arising from multi-disciplinary practices is in maintaining client confidentiality. The duty of confidentiality that arises between a lawyer and their client, which protects communication between them may be lost if that communication is extended to a third party who does not fall within the exception referred to in rr 9.1.1 and 9.1.2 of the ASCR.
In respect of the professional relationship between social workers and solicitors in a multi-disciplinary practice such as a CLC, they may interview the client together, share case notes and/or seek client instructions together. The social worker may also learn other information communicated verbally, by action, manner of response, or other conduct.4
Interposing a third party into the lawyer-client relationship runs the risk of information not remaining confidential. The third party may not outwardly share the information obtained or learned from the client, but it may nevertheless lead the third party to report a suspicion (see below), suggest a certain course of action or intervene in such a way that is adverse to the legal interests of the client.
A risk also exists in relation to a social worker revealing a particular aspect about the client that the lawyer was not aware of, potentially affecting the lawyer’s ability to act in the client’s interests. In some practice models this issue may be managed by the use of an information barrier between lawyer and social worker.
In circumstances where there are no information barriers between lawyers and social workers, the lawyers should always review the notes of the social workers to check for issues or information that is relevant to the legal matter.
Either way, the privilege that arises between lawyer and client, which protects communications between the two, may be lost if the communication extends to a third party.5
4.2. Models surrounding confidentiality in such a practice
There are a number of recognised models that might be followed to deal with the issue of confidentiality in a multi-disciplinary practice. These are outlined in Annexure A of this Guidance Statement.
5. How to manage mandatory reporting obligations?
Legal practitioners and interdisciplinary professions such as social and health care workers each have different reporting obligations, consistent with their respective roles and responsibilities.
Lawyers, with an overriding ethical duty of confidentiality to clients, are usually not mandatory reporters. This arises from the role lawyers have in the justice system. The ethical duties on lawyers are not comparable to those of any other professions.6
In contrast, social workers and health care professionals are sometimes7 subject to stringent mandatory reporting requirements which, in a multi-disciplinary practice, raises an outright tension between client confidentiality and mandatory reporting.
Social workers also have an ethical obligation to protect and promote the rights and wellbeing of children who are experiencing abuse and/or neglect and to support vulnerable families. The Australian Association of Social Work Code of Ethics (2010) states8 that social workers will promote policies, practices and social conditions that uphold human rights and seek to ensure access, equity, participation and legal protection for all.
The following suggested methods may assist in the facilitation of multidisciplinary practices such as CLCs without compromising professional ethical obligations:
- Making clear and defined boundaries for each role – this can be established and promoted through joint training days, role-play and the formal clarification of expectations of each role.9
- Clear communication is essential – set up informal chats and schedule regular case meetings.
- Clear description of position, should be clear cut and as easy to follow as possible.
- Worker training to ensure that social worker’s role is understood properly.
- Lawyers should spend 'considerable time’ within community legal services in order to be educated of the social worker’s unique skills which aid in the advancement of the client’s best interests.10
- Professional development opportunities should be offered to both professions in a multi-disciplinary practice so that a lawyer’s and social worker’s knowledge of each other’s professional skill sets, legal and ethical obligations and practice frameworks is better understood.
- Supervision, a reflective practice framework, trauma informed practices and vicarious trauma awareness will enhance a multi-disciplinary model.
- Social workers should act in a way that prioritises clients’ legal interests11 and should be offered training to enhance legal knowledge and argument capabilities.
6. Confidentiality Wall
St Joan considers a ‘confidentiality wall’ as another method of protection in a multidisciplinary practice.12 It involves establishing stringent protocols which deter access by a person mandated to report on the type of information and disclosures that might trigger their mandatory reporting obligations13 and could be considered by multidisciplinary practices that have this type of arrangement.
Opinions may differ as to the means by which a lawyer avoids a conflict between the professional responsibilities that may be owed by other professionals. One option is to establish a 'confidentiality wall’ which is designed mainly to address the situation when a client divulges information to the lawyer that might trigger mandatory reporting by a social worker. Once the information is divulged, the lawyer creates a file memorandum identifying the disclosure with appropriate safeguards implemented to isolate and protect the disclosure from access by third parties whose ethical obligations differ from a lawyer’s responsibilities under rule 9 of the ASCR. Subsequent discussions between the lawyer and the social worker do not include reference by the lawyer to that particular information. The information is effectively isolated to the lawyer's practice.
This approach assumes that the professionals are not together with the client at the same time, and by implication also assumes that both professionals have access to the same files, thus the need to keep information off the lawyer's file. This strategy further proposes that the social worker ceases working on the file, at the lawyer's instigation, where continued involvement by the social worker could not be achieved without risk of the reportable information being divulged.
Another option is that to avoid a potential conflict of professional duties, it would be prudent for lawyers and social workers to maintain separate records and / or files at all times, and access by either professional to the other’s records should be restricted. Release of information between the lawyer and the social worker should only occur with the consent of the client (preferably, the consent should be express and in writing).
7. Clients with impaired capacity
In some areas of multi-disciplinary practice, it is common for lawyers and social workers to work with clients who have impaired capacity.
Solicitors cannot act for a client who cannot provide competent instructions on the legal matter at hand.
Lawyers should take all reasonably available, positive steps to maximise their client’s capacity.14 Social workers can provide supports which increase the client’s capacity for legal decision-making. Where there is still no legal capacity for the specific matter, the social worker may continue to provide advocacy supports for the client even though the lawyer is not acting for the client. Capacity can fluctuate. It may be that given time, circumstance or the ongoing supports and advocacy being provided by the social worker, the client may at a future time have legal capacity for the particular matter and the lawyer can resume acting for the client.
8. More information
Solicitors are also referred to the Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
For further assistance please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au .
1 Margaret Castles, ‘Possibilities for multidisciplinary collaboration in clinical practice: practical ethical implications for lawyers and clients’ (2008) 34(1) Monash University Law Review 116, 116.
2 Tamara Walsh, ‘Lawyers and Social Workers Working Together: Ethic of Care and Feminist Legal Practice in Community Law’ (2012) 21(3) Griffith Law Review 752.
3 Castles (n 1) 126.
4 Ibid.
5 Castles (n 1) 128, citing Laura Noroski, ‘New York Ethics Code Changes: An Attempt to Fit Multidisciplinary Practice within Existing Ethical Boundaries’ (2002) 76 Southern California Law Review 659, 664.
6 Castles (n 1) 127, citing Douglas Hume, ‘MDPs in Montana: It’s the End of the World as We Know it and I Feel Fine’ (2002) 63 Montana Law Review 391, 392.
7 In Queensland, only those employed in particular roles are subject to mandatory reporting requirements under the Child Protection Act 1999 (Qld), such as teachers, doctors, registered nurses, police officers with child protection responsibilities, early childhood education and care professionals and a person performing a child advocate function under the Public Guardian Act 2014 (Qld). However, practitioners should also be aware of s229BC Criminal Code which creates an offence for any adult to fail to disclose information that causes the adult to believe on reasonable grounds or ought reasonably to cause the adult to believe that a child sexual offence is being commited or has been commited against a child by another adult.
8 Australian Association of Social Workers, Code of Ethics (2010) 19 [5.1.3(a)].
9 Walsh (n 2) 756, citing Margaret Bell and Richard Daly, ‘Social Workers and Solicitors: Working Together?’ (1992) 22 Family Law 257, 260; Michael Preston-Shoot, Gwyneth Roberts and Stuart Vernon, ‘Working Together in Social Work Law’ (1998) 20(2) Journal of Social Welfare and Family Law 137, 139, 149.
10 Heather Craige and William Saur, 'The Contribution of Social Workers to Legal Services Programs’ (1980) 14 Clearinghouse Review 1267, 1272.
11 Walsh (n 2) 756, citing Lisa Stranger, 'Conflicts Between Attorneys and Social Workers Representing Children in Delinquency Proceedings’ (1996) 65(3) Fordham Law Review 1123, 1154–55 noting that the issue is more complex when the lawyer is employed by a social services agency.
12 Castles (n 1) 437-39.
13 Alexis Anderson, Lynn Barenberg and Paul Tremblay, 'Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting’ (2007) 13 Clinical Law Review 659, 699.
14 The Queensland Handbook for Practitioners on Legal Capacity provides guidance on the steps that lawyers can take to increase their client’s legal capacity.