Australian Capital Territory Repealed Regulations

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This legislation has been repealed.

LEGAL PROFESSION (SOLICITORS) RULES 2006 (REPEALED) - RULE 19

Frankness in court

19. Frankness in court

19.1 A practitioner must not knowingly make a misleading statement to a court on any matter.

19.2 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.

19.3 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.

19.4 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.

19.5 A practitioner who has knowledge of matters which are within Rule 19.4 (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 19.4; 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.

19.6 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.

19.7 A practitioner need not inform the court of matters within Rule 19.6 at a time when the opponent tells the court that the opponent's whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the practitioner to have informed the court of such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.

19.8 A practitioner who becomes aware of a matter within Rule 19.6 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.

19.9 A practitioner need not inform the court of any matter otherwise within Rule 19.6 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

19.10 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.

19.11 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.

19.12 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.
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