The Australian Solicitors Conduct Rules?
Question
Task: Describe the Australian Solicitors Conduct Rules?
Answer
Introduction
The Australian solicitors yield legal services to various clients under the varied contexts. The Australian Solicitor Conduct Rules are applicable to the solicitors, in general, may they are involved in, private legal practice, in-house counsels, government lawyers, part of legal aid organizations or community centers or volunteers. As per the Australian Solicitor Conduct Rules, a solicitor should never deal or benefit any other party, that is either represented by or in the knowledge of the solicitor compensated by an insurer, except if the party or the insurer have signified readiness to do so. Compliance with these rules is binding to all the solicitors operating in Australia. The rules are adopted by all states and territories of Australia to ensure that all the solicitors of Australia are pledged and bound by a common set of professional obligations and ethical principles while dealing with the clients, courts, fellow legal practitioners, regulators, and other related people. The intention behind introducing these rules is to assist the acting solicitor to serve in their best capacity within a legal framework. These rules are such classified that provides clear guidelines to decide if a solicitor was engaged in professional misconduct or unsatisfactory conduct. The Law Council originally settled the Australian Solicitors’ Conduct Rules in June 2011. The Law Council of Australia has approved a number of minor changes to the rules in March 2015 and April 2015. A solicitor found guilty of any sort of breach of the rules can amount to unsatisfactory professional misconduct or professional misconduct. This may rise to take a disciplinary action against the solicitor by the relevant regulatory authority though; any third party cannot enforce them (Doulman Vs ACT Electronic Solutions Pty limited & Anor, 2011). A solicitor is necessitated to comply the higher standards if in case any common legislation/law prescribe higher standard than these rules. Similarly, in case a Rule has high standards in comparison with the common legislation/law then the rule must be compiled. It is imperative for the acting solicitor to be aware of the other rules.
The Rule3 provides a paramount duty of a solicitor to the Court and administration. The rule also specifies that in case of any inconsistency, such duty exists to the level of such inconsistency. While the fundamental ethical duties of a solicitor are provided in Rule 4. Rule 4.1 specifies that the client is being represented by the solicitor hence the solicitor must ensure to work in the interest of the client. The solicitor must stay honest and courteous in dealing with the concerns related to the legal practice. Competent and diligent legal services should be provided by the solicitor. At the same time, these services should be as prompt as possible under the given circumstances. While Rule 4.1.4 specifies that a solicitor must not enter into any sort of settlement that compromises with their integrity and professional independence. As per the Rule 4.1.5, the solicitors must comply with the rules and other laws that are applicable in this regard (Bufalo Corporation Pty Ltd Vs Lend Lease Primelife Ltd. 2010).
Rules 7 to 16 describe the relations of a solicitor with the clients. These include the following; communication of advice, client instructions, confidentiality, conflicts concerning former clients, conflict of duties concerning current clients, conflict concerning a solicitor’s own interests, completion or termination of the engagement, client documents, lien over essential documents, charging for document storage. Rule 8 provides the obligation that a solicitor must follow the lawful, competent, and proper instructions of the client. As per the common law’s presumption, every adult (except the case of old age, mental infirmity, suspicion regarding fraud or has the capacity of unjustified influence, incapacity or the situation where the client is unable to communicate) has the ability to make an independent decision. The solicitors must ensure that the presumption of legal capacity is present in the client and the solicitors must also be convincingly satisfied that the client has the mental capacity to provide the instructions. In case, the solicitor is not satisfied with the mental health of the client, the solicitor must not represent such a client. In case of any failure or negligence on the part of a solicitor, it will be rise to the issue of incapacity and the liability of the solicitor under negligence (Walker Vs D’Alessandro, 2010). According to Rule 9.2.3, the solicitor can get confidential advice on the ethical or legal duty of the solicitor if in any case, the solicitor is not being sure of the capacity of the client to provide appropriate response or instructions in a particular situation.
In Rule 21 the solicitors are instructed to use the court processes and privileges with utmost responsibility. Rule 21.2 specifies that the solicitor should ensure that the allegations made by him against any individual could be reasonably justified by the proofs that are already available to the solicitor. This is required for the case for the vigorous progression of the case, also it should be ensured that the case or allegations are not being made just to harass or embarrass an individual (Pont, 2013).
Without making any changes in the ethical rules, the Barrister’s Rule, 2011 introduced certain new rules, as an instance Rule 12. This rule pays attention to the barristers’ role in the administration of justice. With the intention of maintaining correspondence between the solicitor advocates and bar, the Advocacy Rules are introduced. In Rule 27.1, it is clearly mentioned that the solicitor must not appear as the advocate for the client in the hearing, if in that case, the solicitor may have to give his evidence material. While under the same circumstance as of Rule 27.1, the Rule 27.2 permits the solicitor to present the client but not as the lawyer of the client provided it should not prejudice the administration of justice.
Certain duties are obligatory for a barrister towards the court like a barrister must act independently in the interest of the administration of justice. It is an obligation of a barrister that knowingly or inattentively must not mislead the court (Pont, 2013). If the barrister comes to know that any such misleading statement has been made then all the necessary steps must be taken on the priority basis to correct themselves. The rule also specifies that the barrister should alert the opponents. In case of providing relief to an ex-parte application, all the facts and legal matters which are in the notice of the barrister should be disclosed by the barrister. On the basis that the related legal matters of such a case are not protected by the legal profession and has reasonable grounds on basis of which barrister may believe that it will be justified to grant the relief.
A barrister is also bound by certain duties towards the clients; such duties are specified in Rules 37 -40. As per the Rule 37, a barrister must fearlessly safeguard the interest of the client with the best of skills and diligence. Rule 38 states that a barrister must inform the client about the available alternative to a fully contested adjudication. Rule 39 instructs that a barrister must do his best to assist a client with the rights and obligations in a particular case, also in understanding the concerns present in the case. In rule 40, the barrister should advise the client (who is charged with a criminal offense) about the benefit, procedure or practice provided by the law in the case. This is also obligatory to the barrister to use the court process and privilege with sincerity and responsibility. Such duties have been described in the Rules 59-67.
References
G E Dal Pont, 2013, Lawyers Professional Responsibility, 5th ed.
Case Law
Doulman v ACT Electronic Solutions Pty Limited & Anor [2011] FMCA 232
Australian Solicitors Conduct Rules, 2012
Bufalo Corporation Pty Ltd v Lend Lease Primelife Ltd [2010] VSC 672
Walker v D’Alessandro [2010] VSC 15
