Australian Capital Territory Consolidated Regulations Australian Capital Territory Consolidated RegulationsThe law society council makes the attached
Legal Profession (Solicitors) Rules 2007 .
The Legal Profession (Solicitors)
Rules 2006 are repealed.
In the opinion of the law society council, the
amendments to the rules do not justify publication in accordance with
subsections 583(1) to (4) because of the minor or technical nature of the
amendments to the Legal Profession (Solicitors) Rules 2006.
____________________________
Greg Walker
Immediate
Past President and Councillor
for the Law Society of the
Australian Capital Territory
27 September 2007
Australian CapitalTerritory
Legal Profession (Solicitors) Rules 2007
Subordinate Law SL2007-
31
made under the
LAW SOCIETY OF THE
AUSTRALIAN CAPITALTERRITORY
Legal Profession (Solicitors) Rules 2007
CONTENTS
Introduction
1
Definitions 3
Relations
with Clients 6
1. Acceptance of
Retainer 6
2. Confidentiality 7
3.
Restraint on acting against a former
client 10
4. Practitioners employed otherwise than
by a practitioner 10
5. Termination of a
Retainer 10
6. Ownership of clients' documents -
Termination of Retainer 12
7. Acting for more than
one party 13
8. Avoiding conflict of interest
(where practitioner's own interest
involved) 16
9. Receiving a benefit under a will
or
other instrument 17
10. Practitioner and Client -
Borrowing transactions 18
Practitioners' Duties
to the Court 19
11. Preparation of
affidavits 19
12. Practitioner a material witness
in client's case 20
13. Admission of
guilt 20
14. Admission of
perjury 21
15. Bail 21
Advocacy
Rules 22
16. Duty to a
client 22
17. Independence - Avoidance of personal
bias 22
18. Frankness in
court 23
19. Admissions by
client 26
20. Responsible use of
privilege 28
21. Integrity of
evidence 30
22. Duty to
opponent 32
23. Prosecutor's
duties 34
Relations with Other
Practitioners 10
24. Communications
40
25. Undertakings 40
26. Taking
over a matter from another
practitioner 41
27. Transfer of a practitioner's
practice 42
28. Communicating with another
practitioner's client 43
Relations With Third
Parties 45
29. Contracting for
services 45
30. Undertakings 45
31.
Communications 46
32. Debt
collection or mercantile agencies 46
[CONTENTS
cont.]
Legal
Practice 47
33. Conducting another business other
than a Multidisciplinary Partnership or Incorporated Legal
Practice 47
34. Referral fees - Taking unfair
advantage of potential clients
-
Commissions 48
35. Supervision 49
36. Conduct of
Practice 49
37. Firms 50
38.
Attraction
of Business 52
39. Dealings with the Law
Society 57
40. Anti-Discrimination
57
41. Part-time Judicial
Appointments 63
Schedules
1. Practitioner Acting
for Both Buyer and Seller - Instructions to
Practitioner
2. Practitioner Acting for Both Mortgagor and
Mortgagee - Instructions to
Practitioner
3. Practitioner Acting for Both Lessor and Lessee -
Instructions to Practitioner
INTRODUCTION
The Act empowers the Law Society to make Rules for or in relation to practice
as a solicitor, as an Australian-registered foreign lawyer and for
incorporated legal practices and multi-disciplinary
partnerships.
The Rules apply to practitioners
who are:
• legal practitioners who hold an unrestricted or
restricted practising certificate issued by the Society;
or
• legal practitioners who hold an interstate practising
certificate that does not restrict the practitioner to practise only as a
barrister;
or
• Australian-registered foreign lawyers;
or
• legal practitioners in an incorporated legal practice
or multi-disciplinary
partnership.
The application of the Rules is not limited to practitioners in
private practice but extends to practitioners employed by corporations and
other entities as well as government lawyers who
hold practising certificates.
The Rules are divided into six categories under
the following
headings.
• Relations with
clients
• Duties to the
Court
• Advocacy
Rules
• Relations with other
lawyers
• Relations with third
parties
• Legal
practice
The first five categories are preceded by a statement of general
principle which is not intended to constitute by itself a Rule, but is
intended to describe the underlying principles and
objectives of the Rules which follow.
The Rules are based on the model rules
developed by the Law Council of Australia supplemented by a number of
provisions of the now superseded Guide to
Professional Conduct and Etiquette.
By virtue of Section 585 of the Act, the
Rules are binding on legal practitioners to whom they apply and failure to
comply with the Rules can amount to unsatisfactory professional conduct or
professional
misconduct.
DEFINITIONS
“Act” means
the Legal Profession Act
2006 .
“associate” has the same
meaning as in the Act as well as
(a)
a lay associate and legal practitioner associate as so
defined
(b) a corporation or partnership in which the
practitioner has a significant beneficial
interest;
(c) a member of the practitioner's
immediate family.
“case” means the
litigation or proceedings in which the practitioner in question is retained or
intending to appear, or the dispute in which the practitioner is advising, as
the case may be.
“client” has the same meaning as in
the Act
"compromise" includes any form of settlement of the case,
whether pursuant to a formal offer under the rules or procedure of a court, or
otherwise.
“costs” has the same meaning as legal
costs as defined in the Act
.
“Council” means the Council of the Law Society of
the Australian Capital
Territory
“court” means any body
described as such and all other tribunals exercising judicial, or
quasi-judicial, functions, and includes professional disciplinary tribunals,
industrial and administrative tribunals, statutory or Parliamentary
investigations and inquiries, Royal Commissions, arbitrations and
mediations.
“current
proceedings" means proceedings which
have not been determined, including proceedings in which there is still the
real possibility of an appeal or other challenge to a decision being filed,
heard or
decided.
“firm”, “firm of
practitioners”
or
“practitioner's
firm” has the same
meaning as law practice as defined in the
Act
“forensic
judgments” do not include decisions as
to the commencement of proceedings, the joinder of parties, admissions or
concessions of fact, amendments of pleadings or undertakings to a court, or in
criminal proceedings as to a plea, but do include advice given to assist the
client or the instructing practitioner to make such decisions.
"immediate
family” means the spouse (which expression may
include a de facto spouse or partner of the same sex), or a child, grandchild,
sibling, parent or grandparent of a
practitioner.
“Law
Society”
or “Society” means the Law Society of
the Australian Capital
Territory
“opponent” means the practitioner
appearing for the party opposed to the client, or the party opposed to the
client if that party is
unrepresented.
"order” includes a judgment, decision or
determination.
“practitioner" means
• a legal practitioner who holds an unrestricted or
restricted practising certificate issued by the Society;
or
• a legal practitioner who holds an interstate
practising certificate that does not restrict the practitioner to
practise only as a barrister; or
• an
Australian-registered foreign lawyer; or
• a legal
practitioner in an incorporated legal practice or multi-disciplinary
partnership.
“principal” has the same meaning as in
the
Act
“prosecutor” means a practitioner who appears
for the complainant or Crown in criminal
proceedings.
“Trust account” has
the same meaning as in the Act
RELATIONS
WITH CLIENTS
Practitioners should serve their clients competently and
diligently. They should be acutely aware of the fiduciary nature of their
relationship with their clients, and always deal with their clients fairly,
free of the influence of any interest which may conflict with a client's best
interests. Practitioners should maintain the confidentiality of their clients'
affairs, but give their clients the benefit of all information relevant to
their clients' affairs of which they have knowledge. Practitioners should not,
in the service of their clients, engage in, or assist, conduct that is
calculated to defeat the ends of justice or is otherwise in
breach of the law.
1 . Acceptance of
Retainer -
(Instructions to Act or Provide
a Legal Service)
1.1 A practitioner should treat his or her
client fairly and in good faith, giving due regard to the client's position of
dependence upon the practitioner, his or her special training and experience
and the high degree of trust which a client is entitled
to place in a practitioner.
1.2 A practitioner must act
honestly, fairly, and with competence and diligence in the service of a
client, and should accept instructions, and a retainer to act for a client,
only when the practitioner can reasonably expect to serve the client in that
manner and attend to the work required with reasonable
promptness.
1.3 (a) A practitioner must
not accept instructions in a field of practice in which he or she possesses
insufficient knowledge and skill to provide competent representation to the
client unless:
(i) the practitioner is able, without undue delay
and cost to the client, to obtain such knowledge and skill either through
private study and research or through the association with him or her of
another lawyer of established competence in that field;
or
(ii) where access to the relevant body of knowledge or to a
lawyer of established competence in the field is not readily available, the
practitioner warns the client of those facts and of the likely delay and cost
in acquiring the requisite knowledge and skill and the client voluntarily
consents to the practitioner acting in the
matter.
(b) A practitioner should take such steps as are
reasonably necessary to maintain and improve his or her knowledge and skill in
the fields of law in which he or she
practises.
2. Confidentiality
2.1 A practitioner
must not, during, or after termination of, a retainer, disclose to any person,
who is not a partner or employee of the practitioner's firm, any information,
which is confidential to a client of the practitioner, and acquired by the
practitioner during the currency of the retainer, unless
:
(a) the client authorises
disclosure;
(b) the practitioner is permitted
or compelled by law to disclose;
(c) the practitioner discloses
information in circumstances in which the law would probably compel its
disclosure, despite a client's claim of legal professional privilege, and for
the sole purpose of avoiding the probable commission or
concealment of a felony; or
(d) necessary for replying to or
defending any charge or complaint as to conduct or professional behaviour
brought against the practitioner or his or her partners, associates or
employees or to respond to a requirement under
sub-Rule 41.2.
2.2 A practitioner's obligation to maintain
the confidentiality of a client's affairs is not limited to information which
might be protected by legal professional privilege, and is a duty inherent in
the fiduciary relationship between the practitioner and
client.
3. Acting
Against a Former Client
Consistent with the duty which a practitioner has to
preserve the confidentiality of a client's affairs, a practitioner must not
accept a retainer to act for another person in any action or proceedings
against, or in opposition to, the interest of a person
:
(a) for whom the practitioner or the firm, of which the
practitioner was a partner, has acted previously;
and
(b) from whom the practitioner or the practitioner's firm
has thereby acquired information confidential to that person and material to
the action or proceedings;
and
that person might reasonably conclude that there is a real
possibility the information will be used to the person's
detriment.
4. Practitioners employed
otherwise than by a practitioner
A practitioner, who is employed
by a corporation or by any other person who is not a practitioner, must not,
despite any contrary direction from the practitioner's employer, act as a
practitioner in the performance of any legal work or service in breach of any
of the provisions of the Legal Profession Act 2006 .
5. Termination of
Retainer
5.1 A practitioner must complete the work or legal
service required by the practitioner's retainer, unless
:
(a) the practitioner and the practitioner's
client have otherwise agreed;
(b) the practitioner is discharged
from the retainer by the client;
or
(c) the practitioner terminates the retainer for just cause,
and on reasonable notice to the
client.
5.2 Despite the above Rule, a practitioner, who has
accepted instructions to act for a defendant required to stand trial for a
criminal offence, must not terminate the retainer and withdraw from the
proceedings on the ground that the client has failed to make arrangements
satisfactory to the practitioner for payment of the practitioner's costs,
unless the practitioner has, at a time reasonably in advance of the date
appointed for the commencement of the trial, or the commencement of the
sittings of the Court in which the trial is listed
:
(a) served notice in writing on the client of the
practitioner's intention to terminate the retainer and withdraw from the
proceedings at the expiration of seven (7) days if the client fails, within
that time, to make satisfactory arrangements for payment of the practitioner's
costs;
and
(b) delivered a copy of that notice to the Registrar of the
Court in which the trial is listed to
commence.
5.3 Without limiting the general application of Rule
5.1, a practitioner, who is acting for a legally assisted client in any
proceedings, may terminate the practitioner's retainer upon giving reasonable
notice in writing to the client of the practitioner's intention so to do, if
the client's grant of legal aid is withdrawn, or otherwise terminated, and the
client is unable to make any other satisfactory arrangements for payment of
the practitioner's costs which would be incurred if the retainer
continued.
6. Ownership of Clients'
Documents - Termination of Retainer
6.1 A practitioner must
retain, securely and confidentially, documents to which a client is entitled,
for the duration of the practitioner's retainer and at least seven years
thereafter, or until such time as the practitioner gives them to the client or
another person authorised by the client to receive them, or the client
instructs the practitioner to deal with them in some other
manner.
6.2 Upon completion or termination of a practitioner's
retainer, a practitioner must, when requested so to do by the practitioner's
client, give to the client, or another person authorised by the client, any
documents related to the retainer to which the client is entitled,
unless :
(a) the practitioner has completed the
retainer; or
(b) the client has terminated the
practitioner's retainer; or
(c) the practitioner has terminated
the retainer for just cause and on reasonable
notice; and
the practitioner claims a lien over the documents for costs due to
the practitioner by the
client.
6.3 Despite Rule 6.2, a practitioner who claims to
exercise a lien for unpaid costs over a client's documents, which are
essential to the client's defence or prosecution of current proceedings,
must:
(a) deal with the documents as provided in Rule 26, if
another practitioner is acting for the client;
or
(b) upon receiving satisfactory security for the unpaid
costs, deliver the documents to the
client.
6.4 The documents to which a client of a practitioner
should be entitled will usually
include:
(a) documents prepared by a practitioner for the
client, or predominantly for the purposes of the client, and for which the
client has been, or will be, charged costs by the
practitioner; and
(b) documents received by a practitioner from
a third party in the course of the practitioner's retainer for or on behalf of
the client or for the purposes of a client's business and intended for the use
or information of the
client.
7. Acting for more than one
party
7.1 For the purposes of this
Rule:
(a) “proceedings or transaction" mean any action or
claim at law or in equity, or any dealing between parties, which may affect,
create, or be related to, any legal or equitable right or entitlement or
interest in property of any
kind.
(b) "party" includes each one of the persons or
corporations who, or which, is jointly a party to any proceedings or
transaction.
(c) “practitioner" includes a practitioner's
partner or employee and a practitioner's
firm.
7.2 A practitioner who intends to accept instructions from
more than one party to any proceedings or transaction must be satisfied,
before accepting a retainer to act, that each of the parties is aware that the
practitioner is intending to act for the others and consents to the
practitioner so acting in the knowledge that the
practitioner:
(a) may be, thereby, prevented
from :
(i) disclosing to each party all information, relevant to
the proceedings or transaction, within the
practitioner's knowledge; or,
(ii) giving advice to one party
which is contrary to the interests of another;
and
(b) will cease to act for all parties if the practitioner
would, otherwise, be obliged to act in a manner contrary to the
interests of one or more of them.
7.3 If a practitioner, who is
acting for more than one party to any proceedings or transaction, determines
that the practitioner cannot continue to act for all of the parties without
acting in a manner contrary to the interests of one or more of them, the
practitioner must thereupon cease to act for all
parties.
7.4 A practitioner or a firm of practitioners must not
act
:
(a) for both buyer and seller in a matter concerning the sale
of land or the sale of a business in the Australian Capital
Territory;
(b) in the course of carrying on practice in the
Australian Capital Territory for both buyer and seller in a matter concerning
the sale of land or the sale of a
business;
(c) for both mortgagor and mortgagee in a matter
concerning the mortgage of land in the Australian Capital Territory
excepting discharges of mortgages; or
(d) in the course of
carrying on practice in the Australian Capital Territory for both mortgagor
and mortgagee in a matter concerning the mortgage of
land.
7.5 Notwithstanding the provisions of Rule 7.4, a
practitioner or a firm of practitioners may act for both parties
provided that:
(a) the
parties:
(i) are existing clients of the practitioner or of the
firm of practitioners for whom the practitioner or the firm (as the case may
be) has previously
acted;
(ii) are related bodies corporate as
defined in the Corporations Act; or
(iii) are related by blood,
adoption or marriage (either de jure or de
facto).
(b) Rule 7.4 is brought to the
knowledge of both parties; and
(c) both parties, with knowledge
of Rule 7.4, instruct the practitioner or the firm of practitioners in writing
in the form of either Schedules 1 or 2 to act in the
matter.
7.6 A practitioner or firm of
practitioners should not act :
(a) for lessor and lessee in a
matter concerning the leasing of land in the Australian Capital Territory
excepting the surrender of subleases; or
(b) in the course of carrying on practice in the Australian
Capital Territory for both lessor and lessee in a matter concerning the
leasing of
land.
7.7 Notwithstanding the provisions of Rule 7.6, a
practitioner or a firm of practitioners may act for both parties
provided that:
(a) Rule 7.6 is brought to the
knowledge of both parties; and
(b) both parties, with knowledge
of Rule 7.6, instruct the practitioner or the firm of practitioners in writing
in the form of Schedule 3 to act in the
matter.
8. Avoiding Conflict of Interest (where practitioner's
own interest
involved)
8.1 A practitioner must not, in
any dealings with a client :
(a) allow the interests of the
practitioner or an associate of the practitioner to conflict
with those of the client.
(b) exercise any undue influence
intended to dispose the client to benefit the practitioner in excess of the
practitioner's fair remuneration for the legal services provided
to the client.
8.2 A practitioner must not accept instructions
to act for a person in any proceedings or transaction affecting or related to
any legal or equitable right or entitlement or interest in property, or
continue to act for a person engaged in such proceedings or transaction when
the practitioner is, or becomes, aware that the person's interest in the
proceedings or transaction is, or would be, in conflict with the
practitioner's own interest or the interest of an
associate.
9. A Practitioner Receiving a Benefit under a Will or
other
Instrument
9.1 For the purposes of this
Rule:
"substantial benefit" means a benefit which has a
substantial value relative to the financial resources and assets of the person
intending to bestow the
benefit.
9.2 A practitioner who receives instructions from a
person to draw a will appointing the practitioner an executor must inform that
person in writing before the client signs the
will:
(a) of any entitlement of the
practitioner to claim commission;
(b) of the inclusion in the
will of any provision entitling the practitioner, or the practitioner's firm,
to charge professional fees in relation to the
administration of the estate; and
(c) if the practitioner has an
entitlement to claim commission, that the person could appoint as executor a
person who might make no claim for
commission.
9.3 A practitioner who receives
instructions from a person to:
(a) draw a will under which the
practitioner or an associate will, or may, receive a substantial benefit other
than any proper entitlement to commission (if the practitioner is also to be
appointed executor) and the reasonable professional fees of the practitioner
or the practitioner's firm;
or
(b) draw any other instrument under which the practitioner or
an associate will, or may, receive a substantial benefit in addition to the
practitioner's reasonable remuneration, including that payable
under a conditional costs agreement,
must decline to act on
those instructions and offer to refer the person, for advice, to another
practitioner who is not an associate of the practitioner, unless the person
instructing the practitioner is
either:
(c) a member of the practitioner's
immediate family; or
(d) a practitioner, or a member of the
immediate family of a practitioner, who is a partner, employer, or employee,
of the
practitioner.
10. Practitioner and Client -
Borrowing Transactions
10.1 A practitioner must not borrow any
money, nor permit or assist an associate to borrow any money
from a person :
(a) who is currently a client of the
practitioner, or the practitioner's
firm;
(b) for whom the practitioner or practitioner's firm has
provided legal services, and who has indicated continuing reliance upon the
advice of the practitioner, or practitioner's firm in relation to the
investment of money;
or
(c) who has sought from the practitioner, or the
practitioner's firm, advice in respect of the investment of any money, or the
management of the person's financial
affairs.
10.2 This Rule does not prevent a practitioner or an
associate borrowing from a client which is recognised by the practitioner's
professional association as a business entity engaged in money
lending.
PRACTITIONERS' DUTIES TO THE
COURT
Practitioners, in all their dealings with the courts, whether those
dealings involve the obtaining and presentation of evidence, the preparation
and filing of documents, instructing an advocate or appearing as an advocate,
should act with competence, honesty and candour. Practitioners should be frank
in their responses and disclosures to the Court, and diligent in their
observance of undertakings which they give to the Court or their
opponents .
11. Preparation of
Affidavits
11.1 If a practitioner
is:
(a) aware that a client is withholding information required
by an order or rule of a court, with the intention of
misleading the court, or
(b) informed by a client that an
affidavit, of the client, filed by the practitioner, is false in
a material particular,
and the client will not make the relevant
information available, or allow the practitioner to correct the false
evidence, the practitioner must, on reasonable notice, terminate the retainer
and, without disclosing the reasons to the court, give notice of the
practitioner's withdrawal from the
proceedings.
11.2 A practitioner must not draw an affidavit
alleging criminality, fraud, or other serious misconduct unless the
practitioner believes on reasonable grounds
that:
(a) factual material already available to the practitioner
provides a proper basis for the
allegation;
(b) the allegation will be material and admissible
in the case, as to an issue or as to credit;
and
(c) the client wishes the allegation to be made after having
been advised of the seriousness of the
allegation.
12. Practitioner a Material
Witness in Client's Case
A practitioner must not appear as an
advocate and, unless there are exceptional circumstances justifying the
practitioner's continuing retainer by the practitioner's client, the
practitioner must not act, or continue to act, in a case in which it is known,
or becomes apparent, that the practitioner will be required to give evidence
material to the determination of contested issues before the
court.
13. Admission of
Guilt
13.1 If a practitioner's client, who is the accused or
defendant in criminal proceedings, admits to the practitioner before the
commencement of, or during, the proceedings, that the client is guilty of the
offence charged, the practitioner must not, whether acting as
instructing practitioner or advocate :
(a) put a defence case
which is inconsistent with the client's
confession;
(b) falsely claim or suggest that another person
committed the offence;
or
(c) continue to act if the client insists on giving evidence
denying guilt or requires the making of a statement asserting
the client's innocence.
13.2 A practitioner may
continue to act for a client who elects to plead "not guilty" after admitting
guilt to the practitioner, and in that event, the practitioner must ensure
that the prosecution is put to proof of its case, and the practitioner may
argue that the evidence is insufficient to justify a conviction or that the
prosecution has otherwise failed to establish the commission of the offence by
the
client.
14. Admission of
Perjury
14.1 If a practitioner's client admits to the
practitioner, during or after any proceedings, while judgment is reserved,
that the client has given materially false evidence or tendered a false or
misleading document in the proceedings, the practitioner must
:
(a) advise the client that the Court should be informed of the
false evidence, and request the client's authority to inform
the Court and correct the record; and
(b) if the client refuses
to provide that authority, withdraw from the proceedings immediately, and
terminate the
retainer.
15. Bail
15.1 A practitioner must not
promote, or be a party to, any arrangement whereby the bail provided by a
surety is obtained by using the money of the accused person, or by which the
surety is given an indemnity by the accused person or a third party acting on
behalf of the accused
person.
15.2 A practitioner must not become the surety for the
practitioner's client's
bail.
ADVOCACY
RULES
16. Duty to
client
16.1 A practitioner must seek to advance and protect the
client's interests to the best of the practitioner's skill and diligence,
uninfluenced by the practitioner's personal view of the client or the client's
activities, and notwithstanding any threatened unpopularity or criticism of
the practitioner or any other person, and always in accordance with the law
including these
Rules.
16.2 A practitioner must seek to assist the client to
understand the issues in the case and the client's possible rights and
obligations, if the practitioner is instructed to give advice on any such
matter, sufficiently to permit the client to give proper instructions,
particularly in connection with any compromise of the
case.
17. Independence - Avoidance of
Personal bias
17.1 A practitioner must not act as the mere
mouthpiece of the client or of the instructing practitioner and must exercise
the forensic judgments called for during the case independently, after
appropriate consideration of the client's and the instructing practitioner's
desires where
practicable.
17.2 A practitioner will not have breached the
practitioner's duty to the client, and will not have failed to give
appropriate consideration to the client's or the instructing practitioner's
desires, simply by choosing, contrary to those desires, to exercise the
forensic judgments called for during the case so as
to:
(a) confine any hearing to those issues which the
practitioner believes to be the real
issues;
(b) present the client's case as quickly and simply as
may be consistent with its robust advancement;
or
(c) inform the court of any persuasive
authority against the client's case.
17.3 A practitioner must
not make submissions or express views to a court on any material evidence or
material issue in the case in terms which convey or appear to convey the
practitioner's personal opinion on the merits of that evidence or
issue.
18. Frankness in
court
18.1 A practitioner must not knowingly make a misleading
statement to a court on any
matter.
18.2 A practitioner must take all necessary steps to
correct any misleading statement made by the practitioner to a court as soon
as possible after the practitioner becomes aware that the
statement was misleading.
18.3 A practitioner will not have made
a misleading statement to a court simply by failing to correct an error on any
matter stated to the court by the opponent or any other
person.
18.4 A practitioner seeking any interlocutory relief in
an ex parte application must disclose to the court all
matters which:
(a) are within the
practitioner's knowledge;
(b) are not protected
by legal professional privilege; and
(c) the practitioner has
reasonable grounds to believe would support an argument against granting the
relief or limiting its terms adversely to the
client.
18.5 A practitioner who has knowledge of matters which
are within
Rule 18.4(c):
(a) must seek instructions for the waiver of
legal professional privilege if the matters are protected by that privilege,
so as to permit the practitioner to disclose those matters under
Rule 18.4; and
(b) if the client does not waive the privilege as
sought by the
practitioner:
(i) must inform the client of the client's
responsibility to authorise such disclosure and the possible
consequences of not doing so; and
(ii) must inform the court
that the practitioner cannot assure the court that all matters which should be
disclosed have been disclosed to the
court.
18.6 A practitioner must, at the appropriate time in the
hearing of the case and if the court has not yet been informed of that matter,
inform the court
of:
(a) any binding
authority;
(b) any authority decided by an Australian superior
court which is likely to be considered persuasive;
or
(c) any applicable
legislation,
which the practitioner has reasonable grounds to
believe to be directly on point, against the client's
case.
18.7 A practitioner need not inform the court of matters
within Rule 18.6 at a time when the opponent tells the court that the
opponent's whole case will be withdrawn or the opponent will consent to final
judgment in favour of the client, unless the appropriate time for the
practitioner to have informed the court of such matters in the ordinary course
has already arrived or passed.
18.8 A practitioner who becomes
aware of a matter within Rule 18.6 after judgment or decision has been
reserved and while it remains pending, whether the authority or legislation
came into existence before or after argument, must inform the
court of that matter by:
(a) a letter to the court, copied to
the opponent, and limited to the relevant reference unless the opponent has
consented beforehand to further material in the letter;
or
(b) requesting the court to relist the case for further
argument on a convenient date, after first notifying the opponent of the
intended request and consulting the opponent as to the convenient date for
further argument.
18.9 A practitioner need not inform the court
of any matter otherwise within Rule 18.6 which would have rendered admissible
any evidence tendered by the prosecution which the court has ruled
inadmissible without calling on the
defence.
18.10 A practitioner will not have made a misleading
statement to a court simply by failing to disclose facts known to the
practitioner concerning the client's character or past, when the practitioner
makes other statements concerning those matters to the court, and those
statements are not themselves
misleading.
18.11 A practitioner who knows or suspects that the
prosecution is unaware of the client's previous conviction must not ask a
prosecution witness whether there are previous convictions, in
the hope of a negative answer.
18.12 A practitioner must inform
the court in civil proceedings of any misapprehension by the court as to the
effect of an order which the court is making, as soon as the practitioner
becomes aware of the
misapprehension.
19. Admission by
client
19.1 A practitioner whose client informs the
practitioner, during a hearing or after judgment or decision is reserved and
while it remains pending, that the client has lied in a material particular to
the court or has procured another person to lie to the court or has falsified
or procured another person to falsify in any way a document which
has been tendered:
(a) must refuse to take any further part in
the case unless the client authorises the practitioner to inform
the court of the lie or falsification;
(b) must promptly inform
the court of the lie or falsification upon the client authorising the
practitioner to do so;
but
(c) must not otherwise inform the court of
the lie or falsification.
19.2 A practitioner retained to appear
in criminal proceedings whose client makes admissions of fact consistent with
guilt to the practitioner but maintains a plea of not
guilty:
(a) may cease to act, if there is enough time for
another practitioner to take over the case properly before the hearing, and
the client does not insist on the practitioner continuing to appear
for the client;
(b) in cases where
the practitioner continues to act for the
client:
(i) must not falsely suggest that some other person
committed the offence
charged;
(ii) must not set up an affirmative case inconsistent
with the admission ;
but
(iii) may argue that the evidence as a whole does not prove
that the client is guilty of the offence
charged;
(iv) may argue that for some reason of law the client
is not guilty of the offence charged;
or
(v) may argue that for any other reason not prohibited by (i)
and (ii) the client should not be convicted of the offence
charged.
19.3 A practitioner whose client informs the
practitioner that the client intends to disobey a court's order
must:
(a) advise the client against that course
and warn the client of its dangers;
(b) not advise the client
how to carry out or conceal that course;
but
(c) not inform the court or the opponent of
the client's intention unless:
(i) the client has authorised the
practitioner to do so beforehand;
or
(ii) the practitioner believes on reasonable grounds that the
client's conduct constitutes a threat to any person's
safety.
20. Responsible use of
privilege
20.1 A practitioner must, when exercising the forensic
judgments called for throughout a case, take care to ensure that decisions by
the practitioner or on the practitioner's advice to invoke the coercive powers
of a court or to make allegations or suggestions
under privilege against any person:
(a) are reasonably justified
by the material then available to the
practitioner;
(b) are appropriate for the robust advancement of
the client's case on its
merits;
(c) are not made principally in order
to harass or embarrass the person; and
(d) are not made
principally in order to gain some collateral advantage for the client or the
practitioner or the instructing practitioner out of
court.
20.2 A practitioner must not draw or settle any court
document alleging criminality, fraud or other serious misconduct unless the
practitioner believes on reasonable grounds
that:
(a) factual material already available to the practitioner
provides a proper basis for the allegation if it is made in a
pleading;
(b) the evidence in which the allegation is made, if
it is made in evidence, will be admissible in the case,
when it is filed; and
(c) the client wishes the allegation to be
made, after having been advised of the seriousness of the allegation and of
the possible consequences for the client if it is not made
out.
20.3 A practitioner must not open as a fact any allegation
which the practitioner does not then believe on reasonable grounds will be
capable of support by the evidence which will be available to
support the client's case.
20.4 A practitioner must not
cross-examine so as to suggest criminality, fraud or other serious misconduct
on the part of any person
unless:
(a) the practitioner believes on reasonable grounds that
the material already available to the practitioner provides a proper basis for
the
suggestion;
(b) in cross-examination going to credit alone, the
practitioner believes on reasonable grounds that affirmative answers to the
suggestion would diminish the witness's
credibility.
20.5 A practitioner may regard the opinion of the
instructing practitioner that material which appears to support a suggestion
within Rule 20.4 is itself credible as a reasonable ground for holding
the belief required by Rule
20.4(a).
20.6 A practitioner must make reasonable enquiries to
the extent which is practicable before the practitioner can have reasonable
grounds for holding the belief required by Rule 20.4(a), unless the
practitioner has received and accepted an opinion from the instructing
practitioner within Rule
20.5.
20.7 A practitioner must not suggest criminality, fraud or
other serious misconduct against any person in the course of the
practitioner's address on the evidence unless the practitioner believes on
reasonable grounds that the evidence in the case provides a proper basis for
the suggestion.
20.8 A practitioner who has instructions which
justify submissions for the client in mitigation of the client's criminality
and which involve allegations of serious misconduct against any other person
not able to answer the allegations in the case must seek to avoid disclosing
the other person's identity directly or indirectly unless the practitioner
believes on reasonable grounds that such disclosure is necessary for the
robust defence of the
client.
21. Integrity of
evidence
21.1 A practitioner must not suggest or condone another
person suggesting in any way to any prospective witness (including a party or
the client) the content of any particular evidence which the witness should
give at any stage in the
proceedings.
21.2 A practitioner will not have breached Rule
21.1 by expressing a general admonition to tell the truth, or by questioning
and testing in conference the version of evidence to be given by a prospective
witness, including drawing the witness's attention to inconsistencies or other
difficulties with the evidence, but must not coach or encourage the witness to
give evidence different from the evidence which the
witness believes to be true.
21.3 A practitioner must not confer
with, or condone another practitioner conferring with, more than one lay
witness (including a party or client) at the same time,
about any issue:
(a) as to which there are reasonable grounds
for the practitioner to believe it may be contentious at a
hearing; or
(b) which could be affected by, or may affect,
evidence to be given by any of those
witnesses.
21.4 A practitioner will not have breached Rule 21.3
by conferring with, or condoning another practitioner conferring with, more
than one client about undertakings to a court, admissions or concessions of
fact, amendments of pleadings or
compromise.
21.5 A practitioner must not confer with any witness
(including a party or client) called by the practitioner on any matter related
to the proceedings while that witness remains under
cross-examination, unless:
(a) the cross-examiner has consented
beforehand to the practitioner doing so;
or
(b) the practitioner:
(i) believes on reasonable grounds that special circumstances
(including the need for instructions on a proposed compromise) require such a
conference;
(ii) has, if possible, informed the cross-examiner
beforehand of the practitioner's intention to do so;
and
(iii) otherwise does inform the cross-examiner as soon as
possible of the practitioner having done
so.
21.6 A practitioner must not take any step to prevent or
discourage prospective witnesses or witnesses from conferring with the
opponent or being interviewed by or on behalf of any other person involved
in the proceedings.
21.7 A practitioner will not have breached
Rule 21.6 simply by telling a prospective witness or a witness that the
witness need not agree to confer or to be
interviewed.
22 . Duty to
opponent
22.1 A practitioner must not knowingly make a false
statement to the opponent in relation to the case
(including its compromise).
22.2 A practitioner must take all
necessary steps to correct any false statement unknowingly made by the
practitioner to the opponent as soon as possible after the practitioner
becomes aware that the statement was
false.
22.3 A practitioner does not make a false statement to
the opponent simply by failing to correct an error on any matter stated to the
practitioner by the
opponent.
22.4 A practitioner must not deal directly with the
opponent's client
unless:
(a) the opponent has previously
consented;
(b) the practitioner believes on
reasonable grounds that:
(i) the circumstances are so urgent as
to require the practitioner to do so;
and
(ii) the dealing would not be unfair to the
opponent's client; or
(c) the substance of the dealing is solely
to enquire whether the person is represented and, if so, by
whom.
22.5 A practitioner must not confer with or deal directly
with the party opposed to the client
unless:
(a) the party, not being indemnified by an insurer which
is actively engaged in contesting the proceedings, is unrepresented and has
signified willingness to that course,
or
(b) the party, being indemnified by an insurer which is
actively engaged in contesting the proceedings, is otherwise
unrepresented and the practitioner:
(i) has no reasonable
grounds to believe that any statements made by the party to the practitioner
may harm the party's interests under the insurance policy;
or
(ii) has reasonable grounds for the belief referred to in (i)
but has clearly informed the party beforehand of that
possibility; or
(c) the party, being indemnified by an insurer
which is actively engaged in contesting the proceedings, is personally
represented but not in the case and the
practitioner:
(i) has notified the party's representative of the
practitioner's intention to do so;
and
(ii) has allowed enough time for the party to be advised by
the party's
representative.
22.6 A practitioner must not, outside an ex
parte application or a hearing of which the opponent has had proper notice,
communicate in the opponent's absence with the court concerning any matter of
substance in connection with current proceedings
unless:
(a) the court has first communicated with the
practitioner in such a way as to require the practitioner to respond to
the court; or
(b) the opponent has consented beforehand to the
practitioner dealing with the court in a specific manner notified to the
opponent by the
practitioner.
22.7 A practitioner must promptly tell the
opponent what passes between the practitioner and a court in a
communication referred to in Rule 22.6.
22.8 A practitioner must
not raise any matter with a court in connection with current proceedings on
any occasion to which the opponent has consented under Rule 22.6(b), other
than the matters specifically notified by the practitioner to the opponent
when seeking the opponent's
consent.
23. Prosecutor's
duties
23.1 A prosecutor must fairly assist the court to arrive
at the truth, must seek impartially to have the whole of the relevant evidence
placed intelligibly before the court, and must seek to assist the court with
adequate submissions of law to enable the law properly to be
applied to the facts.
23.2 A prosecutor must not press the
prosecution's case for a conviction beyond a full and firm
presentation of that case.
23.3 A prosecutor must not, by
language or other conduct, seek to inflame or bias the court
against the accused.
23.4 A prosecutor must not argue any
proposition of fact or law which the prosecutor does not believe on reasonable
grounds to be capable of contributing to a finding of guilt and also
to carry weight.
23.5 A prosecutor must disclose to the opponent
as soon as practicable all material (including the names of and means of
finding prospective witnesses in connection with such material) available to
the prosecutor or of which the prosecutor becomes aware which could constitute
evidence relevant to the guilt or innocence of the
accused, unless:
(a) such disclosure, or full disclosure, would
seriously threaten the integrity of the administration of justice in those
proceedings or the safety of any person;
and
(b) the prosecutor believes on reasonable grounds that such
a threat could not be avoided by confining such disclosure, or full
disclosure, to the opponent being a legal practitioner, on appropriate
conditions which may include an undertaking by the opponent not to disclose
certain material to the opponent's client or any other
person.
In the event that the prosecutor acts in accordance with
sub-paragraphs (a) and (b), the prosecutor must facilitate communication
between the defence and prospective
witnesses.
23.6 A prosecutor who has decided not to disclose
material to the opponent under Rule 23.5 must consider
whether:
(a) the defence of the accused could
suffer by reason of such nondisclosure;
(b) the charge against
the accused to which such material is relevant should be
withdrawn; and
(c) the accused should be faced only with a
lesser charge to which such material would not be so
relevant.
23.7 A prosecutor must call as part of the
prosecution's case all
witnesses:
(a) whose testimony is admissible and necessary for
the presentation of the whole
picture;
(b) whose testimony provides reasonable grounds for the
prosecutor to believe that it could provide admissible evidence relevant to
any matter in
issue;
(c) whose testimony or statements were used in the course
of any committal proceedings;
and
(d) from whom statements have been obtained in the
preparation or conduct of the prosecution's
case,
unless:
(e) the opponent consents to the
prosecutor not calling a particular
witness;
(f) the only matter with respect to which the
particular witness can give admissible evidence has been dealt with by an
admission on behalf of the accused;
or
(g) the prosecutor believes on reasonable grounds that the
administration of justice in the case would be harmed by calling a particular
witness or particular witnesses to establish a particular point already
adequately established by another witness or other
witnesses,
provided
that:
(h) the prosecutor is not obliged to call evidence from a
particular witness, who would otherwise fall within (a)-(d), if the prosecutor
believes on reasonable grounds that the testimony of that witness is plainly
unreliable by reason of the witness being in the camp of the
accused;
(i) the prosecutor must inform the opponent as soon as
practicable of the identity of any witness whom the prosecutor intends not to
call on any ground within (f), (g) and (h), together with the grounds on which
the prosecutor has reached that decision;
and
(j) the prosecutor must call any witness whom the prosecutor
intends not to call on the ground in (h) if the opponent requests the
prosecutor to do so for the purpose of permitting the opponent to
cross-examine that witness.
23.8 A prosecutor who has reasonable
grounds to believe that certain material available to the prosecution may have
been unlawfully or improperly obtained must
promptly:
(a) inform the opponent if the prosecutor intends to
use the
material;
(b) make available to the opponent a copy of the
material if it is in documentary form;
and
(c) inform the opponent of the grounds for believing that
such material was unlawfully or improperly
obtained.
23.9 A prosecutor must not confer with or interview
any of the accused except in the presence of the accused's
representative.
23.10 A prosecutor must not inform the court or
the opponent that the prosecution has evidence supporting an aspect of its
case unless the prosecutor believes on reasonable grounds that such evidence
will be available from material already available to the
prosecutor.
23.11 A prosecutor who has informed the court of
matters within Rule 23.10, and who has later learnt that such evidence
will not be available, must immediately inform the opponent of that fact and
must inform the court of it when next the case is before the
court.
23.12 A prosecutor must not seek to persuade the court to
impose a vindictive sentence or a sentence of a particular
magnitude, but:
(a) must correct any error made by the opponent
in address on
sentence;
(b) must inform the court of any relevant authority or
legislation bearing on the appropriate
sentence;
(c) must assist the court to avoid appealable error on
the issue of
sentence;
(d) may submit that a custodial or non-custodial
sentence is appropriate;
and
(e) may inform the court of an appropriate range of severity
of penalty, including a period of imprisonment, by reference
to relevant appellate authority.
23.13 A practitioner who
appears as counsel assisting an inquisitorial body such as the National Crime
Authority, the Australian Securities Commission, a Royal Commission or other
statutory tribunal or body having investigative powers must act in accordance
with Rules 23.1, 23.3 and 23.4 as if the body were the court referred to in
those Rules and any person whose conduct is in question before the body were
the accused referred to in Rule
23.3.
RELATIONS WITH OTHER
PRACTITIONERS
In all of their dealings with other practitioners, practitioners
should act with honesty, fairness and courtesy, and adhere faithfully to their
undertakings, in order to transact lawfully and competently the business which
they undertake for their clients in a manner that is consistent with the
public
interest.
24. Communications
A practitioner, in
all of the practitioner's dealings with other practitioners, must take all
reasonable care to maintain the integrity and reputation of the legal
profession by ensuring that the practitioner's communications are courteous
and that the practitioner avoids offensive or provocative language or
conduct.
25. Undertakings
25.1 A practitioner who,
in the course of the practitioner's practice, communicates with another
practitioner orally, or in writing, in terms which expressly, or by necessary
implication, constitute an undertaking on the part of the practitioner, to
ensure the performance of some action or obligation, in circumstances where it
might reasonably be expected that the other practitioner will rely on it, must
honour the undertaking so given strictly in accordance with its terms, and
within the time promised, or, if no precise time limit is
specified, within a reasonable time.
25.2 A practitioner must
not give to another practitioner an undertaking compliance with which requires
the co-operation of a third party, who is not a party to the undertaking, and
whose co-operation cannot be guaranteed by the
practitioner.
25.3 A practitioner must not, in the course of the
practitioner's practice, seek from another practitioner or that practitioner's
employee, an undertaking, compliance with which would require the co-operation
of a third party who is not a party to the undertaking, and whose co-operation
could not be guaranteed by the practitioner or employee
asked to give the undertaking.
26. Taking over a Matter from
Another
Practitioner
26.1 Where a practitioner's retainer is terminated
before the completion of the client's business to which it relates, and the
client instructs another practitioner to take over the conduct of the client's
business, the following rules will apply, subject to any orders which may be,
made by a court of competent jurisdiction in respect of the
delivery of the client's documents.
26.2 The first practitioner
must promptly, on receipt of a direction in writing from the client, deliver
to the second practitioner all relevant documents to which the client is
entitled and any information which is necessary for the proper conduct of the
client's business, unless the first practitioner claims a lien over the
documents for unpaid costs.
26.3 If the client has terminated
the first practitioner's retainer, the first practitioner may retain
possession of the documents until the practitioner's costs are paid, or their
payment to the practitioner is satisfactorily
secured.
26.4 If the first practitioner has terminated the
retainer and the client's documents are essential to the defence or
prosecution of proceedings which are continuing before a Court, the
practitioner must surrender possession of the documents to the client, upon
the terms prescribed in Rule 6.3 or to the second practitioner, if so directed
by the client, and, provided that the second practitioner
:
(a) holds the documents subject to the first practitioner's
lien, if that is practicable, and provides reasonable security for the payment
of the first practitioner's costs;
or
(b) enters into an agreement with the client and the first
practitioner to procure payment of the first practitioner's costs upon
completion of the relevant
proceedings.
26.5 A practitioner who receives a client's
documents from another practitioner pursuant to an agreement between the
client and both practitioners, providing that the practitioner receiving the
documents will pay the first practitioner's costs from money recovered on the
client's behalf in respect of the business or proceedings to which the
documents relate, must do all things which are reasonably practicable on the
practitioner's part to ensure compliance with the
agreement.
27. Transfer of a Practitioner's
Practice
27.1 When a practitioner intends to transfer to another
practitioner the whole or part of the practitioner's practice, including
clients' work in progress, and to put the other practitioner in possession of
the documents held by the practitioner on behalf of clients, the practitioner
must give to each client, fourteen (14) days (or such other period as may be
reasonable in the circumstances), before the practitioner delivers possession
of the practice to the practitioner acquiring
it, notice in writing:
(a) of the intended transfer of documents
to the practitioner acquiring the practice, unless a contrary direction is
received from the client;
and
(b) of the client's right to give to the practitioner a
contrary direction in relation to the conduct of the client's affairs and the
delivery of the client's
documents.
27.2 The notice which is sent to any client, on whose
behalf the practitioner holds money in trust or under the practitioner's
control, must advise the client
of:
(a) the balance of money held on the
client's behalf;
(b) the practitioner's intention to transfer
the relevant account to the practitioner acquiring the practice, unless
advised by the client to the contrary;
and
(c) the client's right to give to the practitioner a
contrary direction as to the manner in which the practitioner should deal with
the account on the client's
behalf.
27.3 The practitioner, in addition to giving notice to
clients as required by paragraphs 27.1 and 27.2 must comply with all other
legislative provisions applicable to the trust money or controlled money held
by the
practitioner.
27.4 Paragraphs 27.1, 27.2 and 27.3 do not apply
where a new partner is admitted to a partnership which continues to conduct
the
practice.
28. Communicating with Another
Practitioner's Client
28.1 A practitioner who is acting on
behalf of a party in any proceedings or transaction must not communicate
directly with any other party for whom, to the practitioner's knowledge,
another practitioner is currently acting,
unless:
(a) notice of the practitioner's intention to
communicate with the other party, in default of a reply from the other
practitioner, has been given to that practitioner, who has failed, after a
reasonable time, to reply;
(b) the communication is made for the
sole purpose of informing the other party that the practitioner has been
unable to obtain a reply from that party's practitioner, and requests that
party to contact the practitioner;
and
(c) the practitioner, thereafter, notifies the other
practitioner of the
communication.
28.2 A practitioner who receives notice from
another practitioner that the practitioner's client has instructed or retained
that practitioner may, after notifying the other practitioner, communicate
with the former client for the purpose of confirming the client's instructions
and arranging for the orderly transfer of the client's affairs to
the other practitioner.
RELATIONS WITH THIRD
PARTIES
Practitioners should, in the course of their practice, conduct their
dealings with other members of the community, and the affairs of their clients
which affect the rights of others, according to the same principles of honesty
and fairness which are required in relations with the courts and other lawyers
and in a manner that is consistent with the public
interest.
29. Contracting for
Services
A practitioner who deals with a third party for the
purpose of obtaining some service on behalf of a client, must inform the third
party when the service is requested, that the practitioner will accept
personal liability for payment of the fees to be charged for the service or,
if the practitioner is not to accept personal liability, the practitioner must
inform the third party of the arrangements intended to be made for payment of
the
fees.
30. Undertakings
A practitioner who, in the
course of providing legal services to a client, communicates with a third
party orally, or in writing, in terms which, expressly, or by necessary
implication, constitute an undertaking on the part of the practitioner to
ensure the performance of some action or obligation, in circumstances where it
might reasonably be expected that the third party will rely on it, must honour
the undertaking so given strictly in accordance with its terms, and within the
time promised (if any) or within a reasonable
time.
31. Communications
31.1 A practitioner must
not, in any communication with another person on behalf of a
client:
(a) represent to that person that anything is true which
the practitioner knows, or reasonably believes, is untrue; or
(b) make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the practitioner's client; or
(c) threaten the institution of criminal proceedings against the
other person in default of the person's satisfying a concurrent civil
liability to the practitioner's
client.
32. Debt Collection or Mercantile
Agencies
32.1 A practitioner must not allow the practitioner's
business name or stationery to be used by a debt collection, or mercantile,
agent in a manner that is likely to mislead the public, and a practitioner who
receives, from a debt collection, or mercantile, agent, instructions to act
for a client creditor, must ensure that:
(a) the practitioner's relationship to the agent is fully disclosed to the client;
(b) the information required to be disclosed to the client by any relevant legislation and these Rules is communicated to the client;
(c) the practitioner maintains direct control and supervision of any proceedings on behalf of the client; and
(d) that any money recovered on behalf of the client is
accounted for by the practitioner.
LEGAL
PRACTICE
33. Conducting Another Business other than a
Multidisciplinary Partnership or Incorporated Legal
Practice
33.1 A practitioner who engages in the conduct of
another business concurrently, but not directly in association, with the
conduct of the practitioner's legal practice must ensure that the other
business is not of such a nature that the practitioner's involvement in it
would be likely to impair, or conflict with, the practitioner's duties to
clients in the conduct of the practice, and the practitioner
must:
(a) maintain separate and independent files, records and
accounts in respect of the legal practice, and the other
business;
(b) disclose to any client of the practitioner, who,
in the course of dealing with the practitioner, deals with the other business,
the practitioner's financial or other interest in that
business; and
(c) cease to act for the client if the
practitioner's independent service of the client's interest is reasonably
likely to be affected by the practitioner's interest in the other
business.
33.2 For the purpose of paragraph 33.1, a practitioner
will be deemed to be carrying on another business if that business, whether
conducted by a company or otherwise, is carried on substantially under the
practitioner's direction or
control.
34. Referral Fees - Taking unfair advantage of
potential clients -
Commissions
34.1 In the conduct or promotion of a practitioner's
practice, the practitioner must
not:
(a) accept a retainer or instructions to provide legal
services to a person, who has been introduced or referred to the practitioner
by a third party to whom the practitioner has given or offered to provide a
fee, benefit or reward for the referral of clients or potential clients,
unless the practitioner has first disclosed to the person referred the
practitioner's arrangement with the third party;
or
(b) seek instructions for the provision of legal services in
a manner likely to oppress or harass a person who, by reason of some recent
trauma or injury, or other circumstances, is, or might reasonably be expected
to be, at a significant disadvantage in dealing with the practitioner at the
time when the instructions are
sought.
34.2 A practitioner must not act for a client in any
dealing with a third party from whom the practitioner may receive, directly or
indirectly, any fee, benefit or reward in respect of that dealing
unless:
(a) the practitioner is able to advise and, in fact,
advises the client free of any constraint or influence which might be imposed
on the practitioner by the third
party;
(b) the practitioner's advice is fair and free of any
bias caused by the practitioner's relationship with the third
party; and
(c) the nature and value of any fee, benefit, or
reward, which may be received by the practitioner, are fair and reasonable,
having regard to objective commercial standards, and are disclosed fully in
writing to the client before the dealing is
commenced.
34.3 Nothing in this Rule impinges upon a
practitioner's right to practise in an incorporated legal practice or a
multidisciplinary partnership pursuant to Part 2.6 of the
Act.
35. Supervision
A practitioner should
properly supervise all legal services carried out for and on
the practitioner's behalf.
36. Conduct
of Practice
36.1 A practitioner should ensure that his or her
practice is efficiently and properly administered and should take all
reasonable and practicable steps to ensure that professional engagements are
fulfilled or that early notice is given if they cannot be
fulfilled.
36.2 A practitioner who is the holder of a current
unrestricted practising certificate must ensure that he or she or another
practitioner who is the holder of a current unrestricted practising
certificate is at all times in charge of and attends regularly at each address
at which the practitioner carries on
practice.
36.3 Where a practitioner carries on practice as a
practitioner at an office other than his or her usual place of residence which
is not open continuously during normal business
hours:
(a) the practitioner must ensure that a notice, clearly
visible outside the practitioner's place of practice, which specifies the days
on which and the hours during which such place of
practice is open, is affixed;
(b) such notice should also state
a telephone number on which the practitioner can be contacted, and such
telephone number will, during normal business hours, be serviced personally or
by a functional machine answering
service;
(c) the practitioner must notify the Law Society
promptly in writing of the hours during which the said place of business is
open, the said telephone number and any changes thereto;
and
(d) the provisions of this sub-Rule will not in any way
limit the generality of the preceding two sub-Rules 36.1 and
36.2.
36.4 Where a practitioner who practises as a practitioner
does not have an office other than at his or her place of residence and sees
clients by appointment
only:
(a) the practitioner should have a telephone number on
which he or she can be contacted. The telephone number should be serviced
personally or by a functional machine answering service
during normal business hours;
(b) the practitioner must notify
the Law Society promptly in writing of the telephone
number and any changes thereto; and
(c) the provisions of this
sub-Rule will not in any way limit the generality of the preceding two
sub-Rules 36.1 and
36.2.
37. Firms
37.1 Firm
Names
A practitioner may practise under any business or company name provided
that the
name:
(a) does not mislead or deceive, and is
not likely to mislead or deceive; or
(b) is not likely to bring
the practitioner or the legal profession into disrepute;
or
(c) is approved by
Council.
37.2 Professional
Stationery
In this Rule “professional stationery” includes
letterheads, compliment slips, business cards and any other document that
identifies the practitioner's
firm.
37.3 A practitioner must place in legible form on any
letterhead of the practitioner's
practice:
(a) the name under which the
practitioner practises; and
(b) the address of the
practitioner's principal place of practice;
and
(c) the practitioner's telephone
number.
37.4 A practitioner may permit to appear on his or her
professional stationery the name of any person who
is:
(a) another
practitioner;or
(b) a partner of that practitioner, whether or
not that partner is a practitioner;
or
(c) other officers or directors of an
incorporated legal practice; or
(d) any other person employed by
or associated with the firm or
corporation.
provided
that:
(i) the
use of that name does not mislead or deceive, and is not likely to mislead or
deceive;
and
(ii) in
respect of multidisciplinary partnerships and incorporated legal practises the
professional stationary does not represent that legal services are provided by
persons who are not
practitioners.
38. Attraction of
Business
38.1 For the purpose of this
Rule:
(a) the expression “publication” means a book,
pamphlet, brochure, newspaper, magazine, periodical, journal, gazette,
directory, or other printed
material;
(b) the expression “transmission” means a
radio or television transmission, a visual display communicated by electronic
means or a cinematographic
exhibition.
38.2 (a) A practitioner may
advertise in connection with his or her practice provided that such
advertising:
(i) is not false in any material
particular;
(ii) is not misleading or deceptive
or likely to mislead or deceive;
(iii) is not vulgar,
sensational or otherwise such as would bring or be likely to bring the
practitioner or the legal profession into
disrepute.
(b) The onus would be on any practitioner who claimed
that he was a specialist or an expert in a particular field of practice to
prove, if required, that his claim was not false,
misleading or deceptive.
(c) The acceptance of a claim by a
practitioner to be a specialist or an expert in a particular field of practice
would depend on a number of factors. While an assessment of a practitioner's
claim would depend on the particular facts and circumstances, the following
factors may be taken into account in judging the
validity of a claim:
(i) the academic
qualifications of the practitioner;
(ii) the number of years of
experience the practitioner has had in the field of
practice;
(iii) the proportion of the practitioner's total
working time involved in the field of
practice;
(iv) the level of success achieved by the practitioner
in the field of
practice;
(v) the importance or significance of the matters in
respect of which the practitioner has practised in the
field;
(vi) an assessment by a number of the practitioner's
peers to establish whether or not the practitioner is regarded by other
practitioners as a specialist or as having special expertise
in the field of practice;
(vii) any interstate
accreditation as a specialist;
(viii) such other matters as are
relevant in all the
circumstances.
(d) The term “specialist” and the
phrase “an expert in a particular field of practice” means
“a practitioner having special expertise”. A practitioner will
need to consider carefully any claim to be a specialist. Alternative
indications such as “practising in the fields of...” or
“undertaking legal work in...” may be more accurate and
satisfactory. The connotation of the term “specialist” to denote
the field in which the practitioner principally practises may be more
satisfactorily met by the indication of a field or fields of
practice.
38.3 A practitioner may in any lecture, talk, public
appearance, transmission, or publication on any subject be identified therein
by his or her name, academic qualifications and the fact that he or she is a
practitioner provided
that:
(a) where the subject matter or part of the subject matter
thereof concerns a matter in which the practitioner is or has
been professionally engaged:
(i) the practitioner must in all
cases confine himself or herself to an objective account of the matter without
giving undue publicity to his or her own part in
the matter;
(ii) the practitioner must not participate therein
if it is contrary to the interests of the client or former
client so to do;
(b) the practitioner must not therein profess
to be representing the Society or the legal profession or presenting the views
of the Society or the legal profession unless he or she has been expressly
authorised by the Society so to
do.
38.4 A practitioner may communicate with a person who is not
then his or her client with a view to obtaining instructions for professional
business provided
that:
(a) the content and nature of any material, whether
printed, spoken or otherwise, used by the practitioner in the course of the
communication will be subject to the same restrictions as are
contained in sub-Rule 38.2;
(b) the form of the communication
does not derogate from the dignity of the legal
profession;
(c) the physical, emotional and mental state of the
person is such that the person is capable of exercising reasonable judgment in
employing a
practitioner;
(d) the practitioner must not communicate with a
person who has made known to the practitioner, directly or indirectly, that he
or she does not desire to receive such communications from the practitioner or
from practitioners generally;
and
(e) the communication does not involve undue influence,
coercion, duress, harassment or
nuisance.
38.5 Except as allowed by this
Rule, a practitioner must not:
(a) apply, directly or
indirectly, to a person who is not then his or her client for instructions for
professional business;
or
(b) do or permit in the carrying on of his or her practice
any act or thing that may reasonably be regarded as calculated
to attract business unfairly.
38.6 (a) The
Council may from time to time provide for the guidance of practitioners
examples of material which it considers to accord with or not to accord with
the restrictions contained in the provisos to sub-Rule
38.2.
(b) the Council may by notice in writing
to a practitioner order:
(i) the alteration, withdrawal or
discontinuance of an
advertisement;
(ii) the alteration or discontinuance of the use
of material referred to in sub-paragraph
38.4(a);
(iii) the removal or alteration of a
sign or brochure,
by a practitioner where the Council is of the opinion that
the advertisement, material, sign or brochure contravenes the provisions of
this
Rule.
(c) The Council may by notice in writing to a practitioner
order him or her to cease or
limit:
(i) communications with persons who are not his or her
clients with a view to obtaining instructions for professional
business;
(ii) the lectures, talks, public appearances,
transmissions or publications in which he or she
participates,
if in the opinion of the Council the practitioner is thereby
contravening the provisions of this
Rule.
(d) A practitioner must forthwith comply with any order
given by the Council pursuant to paragraphs (b) and
(c).
39 Dealings with the Law
Society
39.1 Subject only to his or her duty to the client, a
practitioner should be open and frank in his or her
dealings with the Law Society.
39.2 A practitioner should
respond within a reasonable time and in any event within 14 days (or such
extended time as the Society may allow) to any requirement of the Society for
comments or information in relation to the practitioner's conduct or
professional behaviour and in doing so the practitioner should furnish in
writing a full and accurate account of his or her conduct in relation to the
matter.
40. Anti-Discrimination
40.1 A
practitioner should not in the course of his or her practice discriminate
against a person on the ground of the person's sex, marital status, pregnancy
or family responsibilities where such discrimination would be unlawful by
virtue of the Sex Discrimination Act 1994 of the
Commonwealth.
40.2 A practitioner should not in the course of
his or her practice sexually harass another person where such harassment would
be unlawful by virtue of the Sex Discrimination Act 1994
of the Commonwealth.
40.3 A practitioner should not in the
course of his or her practice do any act involving a distinction, exclusion,
restriction or preference based upon the race, colour or national or ethnic
origin of a person where such an act would be unlawful by virtue of the
Racial Discrimination Act 1975 of the
Commonwealth.
40.4 A practitioner should not in the course of
his or her practice discriminate against a person on the ground of a
disability of that person where such discrimination would be unlawful by
virtue of the Disability Discrimination Act 1992 of the
Commonwealth.
41. Practitioners Serving as Part-Time Judicial
Officers or Tribunal
Members
41.1 A practitioner must not appear, or undertake work
on behalf of a client in relation to any proceedings before a court or
statutory tribunal of which the practitioner is a
member.
41.2 A practitioner must not appear in any proceedings
before a court or statutory tribunal on behalf of a client if a partner,
employer or employee of the practitioner is sitting as a member of the court
or tribunal for the purpose of those
proceedings.
41.3 A practitioner must not knowingly appear, or
undertake work on behalf of a client in relation to any proceedings before a
court or statutory tribunal of which a partner, employer or employee of the
practitioner is a member unless the practitioner has as soon as practicable
advised the client and all other parties to the proceedings that a partner,
employer or employee of the practitioner is a member of the court or tribunal.