In opening the new federal integrity body, Mr Brereton, SC said:

…it is the duty of a lawyer to provide the client with the benefit of the lawyer’s legal opinion, not a risk assessment.  The lawyer should form an opinion as to what the law is and requires, and so advise the client… the client should receive the lawyer’s opinion on the law, which the lawyer is trained and qualified to provide, and not a risk assessment, which the lawyer is not qualified to give and which is in reality speculative.  (Emphasis added.)

These views present problems.

Most legal advice is not about ‘what the law is and requires’, but about how it may be applied to the case presented by the client to the lawyer for advice.  Most of that advice turns on trying to predict how a government agency or a court may react to arguments about matters of fact or law – and the possible consequences – personal, financial or reputational.

The word ‘risk’ has at least two meanings – some proposed conduct involves the chance of some hazard or danger; or the degree of probability of such a danger coming to pass.

Since no one can predict the future, any such advice must deal with probabilities – or, if you prefer, be ‘speculative.’ 

Lawyers and doctors are therefore obliged by law to advise their client or patient about the risks of a proposed course of action – as best they can. 

And for my part, lawyers would be advised not to do so in percentages or odds.  (Just this week I got a quote of risk from an anaesthetist that was expressed in percentages that gave me pause for more reasons than one – one in thirty of death, and one in fourteen of serious injury.  What am I supposed to make of that?)

It follows that lawyers and doctors must have professional indemnity insurance against the risk that they have not properly fulfilled the terms of their retainer.  The risk is not so much that they did not understand the law, but that they failed to apply it properly to the matter in hand.

If you ask a lawyer about robbing a bank, the advice is simple.  But what if you want to merge two banks; or dig a mine on land claimed by First Nations; or block a harbour view; or enter into a scheme to evade or avoid tax; or bad mouth a wealthy politician who is a jerk; or as a law firm, lend money to your client to pay your fees at usurious rates? 

Indeed, it may be just a matter of time before you ask a lawyer whether you might attract the attention of Mr Brereton if you give a friend a luxury holiday – and the friend is a federal judge or mandarin.  What about a dozen Grange?  What about one?  Or a round of drinks at the Commonwealth Club?

It follows that my view about the role of lawyers in assessing risk looks to be the direct opposite of that of Mr Brereton.

And although they may be coy about it, most judges look at risks when deciding cases.  In my thirty years of hearing cases, I frequently did not know what the upshot was until I finished writing at about 1.30 am.  And how often did it come down to -consciously or not – which of these two unfortunate parties is better placed to bear the cost of losing this case?  (Because fully half the time, someone has to lose.  And sometimes we clobber both.)

Justice Holmes made his remark about the law consisting of predicting what the courts will do in fact in his address The Path of the Law.  His Honour also said:

People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared.  The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

Corruption – integrity body – lawyers – Brereton.