A delegate of John Britton, Queensland’s Legal Services Commissioner, has declined to lay disciplinary charges against Dr Haneef’s lawyer, Stephen Keim QC, despite finding a clear breach of a rule of professional conduct, and that — to my astonishment — Mr Keim gave his client’s record of interview to The Australian without having sought Dr Haneef’s instructions. Mr Keim was recently profiled by the New York Times, and was The Australian‘s Australian of the Year last year, along with his instructor, Peter Russo. The complainants were the Federal Police Commissioner, Mick Keelty, and a former National Party Candidate and solicitor Russell Biddle. The New York Times article reveals that, after discussion with his wife, Mr Keim took the entire case pro bono.
This is not the first time conservative politicians have used complaints procedures against professionals to pursue ideological points in which they personally have no interest. It is mostly forgotten that anyone can complain about a lawyer’s or doctor’s conduct, not just their clients and their opponents. Consider the case of Julian McGauran MP’s complaint about a doctor alleged to have been involved in an improper late-term abortion.
The Australian‘s report is here, and the New York Times‘s here. The Commissioner has published his decision, and Mr Keim’s response to the complaints. He could do so only with Mr Keim’s consent. A curious aspect of the decision is that it suggests that ‘the complaints and subsequent investigation could have been avoided by first obtaining Haneef’s consent to release the record of interview’. I cannot understand this. Neither Mr Keelty nor Mr Biddle were complaining about the want of instructions were they? How would they have known there were no instructions? And it seems to me that even if Mr Keim had had the instructions to do what he did, there would still have been a clear breach of rule 60.
Mr Keim was found to have ‘clearly’ breached rule 60 of Queensland’s inelegantly titled ‘Barrister Rule, 2007‘, which is reproduced below. Breach of a rule of conduct or of the Act which regulates lawyers, is one of the most common species of disciplinary offences. It would not be too much of an oversimplification to say that unwitting breach of a rule is generally unsatisfactory conduct, and a willful or reckless breach is generally misconduct. The Commissioner’s delegate said that this was a breach of the rule which was neither, because of the exceptional nature of the case. What made the case exceptional was not that the other side was not playing by the rules, as Mr Keim argued. Even in the law, two wrongs don’t make a right. Rather, it was that:
- the intent of the professional discipline provisions of the Legal Profession Act, 2007 (Qld) is not punitive, but purely protective of consumers and the reputation of the legal profession;
- the publication of the interview did not interfere with the administration of justice in this case;
- the release of the interview was not accompanied by any comment or statement, but rather the interview was allowed to speak for itself;
- the breach was at the minor end of breaches of rule 60;
- there was no evident mischief with the premature publication of the interview (‘premature’ in the sense that as soon as the interview had been tendered in court it could have been released as an exhibit under rule 60);
- there was no subsequent abuse of the document by Mr Keim; and
- Mr Keim’s exemplary professional record.
Perhaps the rule is too broadly drawn, and does not really mean what it says, that the release of documents without any comment which are allowed to speak for themselves should not be proscribed, especially if the evil sought to be addressed by the rule does not actually eventuate, and the breach is committed by a man with a good reputation.