Legal Profession (Solicitors' Conduct) Rules 2020

Legal Profession (Solicitors' Conduct) Rules 2020

The Council of the Law Society of Tasmania makes the following rules under section 221 of the Legal Profession Act 2007 .

PART 1 - Preliminary rules

1.   Short title

These rules may be cited as the Legal Profession (Solicitors' Conduct) Rules 2020 .

2.   Commencement

These rules take effect on 1 October 2020.

3.   Objective

The objective of these rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these rules.

4.   Interpretation

In these rules –

associate, in relation to a solicitor, means –

(a) a principal of the solicitor’s law practice; or

(b) a partner, employee or agent of the solicitor or of the solicitor’s law practice; or

(c) a corporation or partnership in which the solicitor has a material beneficial interest; or

(d) in the case of the solicitor’s incorporated legal practice, a director, officer, employee or agent of the incorporated legal practice or of a subsidiary of the incorporated legal practice; or

(e) a member of the solicitor’s immediate family; or

(f) a member of the immediate family of a partner of the solicitor’s law practice or of the immediate family of a director of the solicitor’s incorporated legal practice or of a subsidiary of the incorporated legal practice;

associated entity means an entity that is not part of a solicitor’s law practice but which provides legal or administrative legal services to the law practice including, but not limited to –

(a) a service trust or company; and

(b) a partnership of the law practice operating under the trading name of, or a name which includes all or part of the trading name of, the law practice;

Australian roll means a roll of practitioners maintained by the Supreme Court or under the legal profession legislation of any Australian jurisdiction;

case means –

(a) the court proceedings for which the solicitor is engaged; or

(b) the dispute in which the solicitor is advising;

client, with respect to the solicitor or the solicitor’s law practice, means a person (not an instructing solicitor) for whom the solicitor is engaged to provide legal services for a matter;

client documents means documents to which a client is entitled;

compromise includes any form of settlement of a case, whether pursuant to a formal offer, under the rules or procedures of a court or otherwise;

corporate solicitor means an Australian legal practitioner who engages in legal practice only in the capacity of an in-house lawyer for his or her employer or a related entity;

costs includes disbursements;

court means –

(a) any body described as such; or

(b) any tribunal exercising judicial, or quasi-judicial, functions; or

(c) a professional disciplinary tribunal; or

(d) an industrial tribunal; or

(e) an administrative tribunal; or

(f) an investigation or inquiry established or conducted under statute or by a Parliament; or

(g) a Royal Commission; or

(h) an arbitration or mediation or any other form of dispute resolution;

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;

discrimination means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation;

disqualified person means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:

(a) a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under legal profession legislation or a corresponding law;

(b) a person whose Australian practising certificate has been suspended or cancelled under legal profession legislation or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished;

(c) a person who has been refused a renewal of an Australian practising certificate under legal profession legislation or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time;

(d) a person who is the subject of an order under legal profession legislation or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice;

(e) a person who is the subject of an order under legal profession legislation or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the solicitor’s practice;

(f) a person who is the subject of any order under legal profession legislation or corresponding law, disqualifying him or her from managing an incorporated legal practice or from engaging in partnerships with certain partners who are not Australian legal practitioners;

employee means a person who is employed or under a contract of service, or contract for services, in or by an entity, whether or not –

(a) the person works full-time, part-time or on a temporary or casual basis; or

(b) the person is a law clerk or articled clerk;

employer, in relation to a corporate solicitor, means a person or body (not being another solicitor or a law practice) who or which employs the solicitor, whether or not the person or body pays or contributes to the solicitor’s salary;

engagement means the appointment of a solicitor or a solicitor’s law practice to provide legal services for a matter;

former client, in relation to a solicitor, includes a person or entity that has –

(a) previously instructed –

(i) the solicitor; or

(ii) the solicitor’s current law practice; or

(iii) the solicitor’s former law practice, while the solicitor was at the former law practice; or

(iv) the former law practice of a partner, co-director or employee of the solicitor, while the partner, co-director or employee was at the former law practice; or

(b) provided confidential information to the solicitor, notwithstanding that the solicitor was not formally retained and did not render an account;

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 solicitor;

instructing solicitor means a solicitor or law practice that engages another solicitor or law practice to provide legal services for a client for a matter;

insurance company includes any entity, whether statutory or otherwise, which indemnifies persons against civil claims;

law practice means –

(a) an Australian legal practitioner who is a sole solicitor; or

(b) a partnership of which a solicitor is a partner; or

(c) a multi-disciplinary partnership; or

(d) an unincorporated legal practice; or

(e) an incorporated legal practice;

legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest;

legal profession legislation means a law of a State or Territory that regulates legal practice and the provision of legal services;

legal services means work done, or business transacted, in the ordinary course of legal practice;

matter means any legal service that is the subject of an engagement or required to be provided by the solicitor or the solicitor’s law practice to fulfil an engagement and includes services provided for –

(a) a case; or

(b) a dealing between parties that may affect, create or be related to a right, entitlement or interest in property of any kind; or

(c) advice on the law;

multi-disciplinary partnership means a partnership between –

(a) one or more solicitors; and

(b) one or more other persons who are not solicitors –

where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services, but does not include a partnership consisting only of one or more solicitors and one or more Australian-registered foreign lawyers;

opponent means –

(a) the practitioner appearing for a party opposed to the client of the solicitor in question; or

(b) that party, if the party is unrepresented;

order includes judgment, decision and determination;

party includes each one of the persons or corporations who or which are jointly a party to any matter;

practitioner means a person or law practice entitled to practise the profession of law;

prescribed mortgage financing means facilitating a loan secured or intended to be secured by mortgage by –

(a) acting as an intermediary to match a prospective lender and borrower; or

(b) arranging the loan; or

(c) receiving or dealing with payments under the loan –

but does not include –

(d) providing legal advice, or preparing an instrument, for the loan; or

(e) merely referring a person to a prospective lender or borrower, without contacting the prospective lender or borrower on that person’s behalf or facilitating a loan between family members; or

(f) facilitating a loan secured by mortgage –

(i) of which an Australian legal practitioner is the beneficial owner; or

(ii) held by an Australian legal practitioner or a corporation in his, her or its capacity as the trustee of any will or settlement, or which will be so held once executed or transferred;

prosecutor means a solicitor who appears for the complainant or the Crown in criminal proceedings;

regulatory authority means an entity, identified in legal profession legislation, which has responsibility for regulating the activity of solicitors in that jurisdiction;

serious criminal offence means an offence that is –

(a) an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily); or

(b) an offence against the law of another jurisdiction that would be an indictable offence against a law of this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or

(c) an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction);

sexual harassment means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation;

solicitor means –

(a) an Australian legal practitioner who practises as or in the manner of a solicitor; or

(b) an Australian registered foreign lawyer who practises as or in the manner of a solicitor;

solicitor with designated responsibility means the solicitor ultimately responsible for a client’s matter or the solicitor responsible for supervising another solicitor who has carriage of a client’s matter;

substantial benefit means a benefit which has a substantial value relative to the financial resources and assets of the person bestowing, or intending to bestow, the benefit;

trustee company has the meaning given in the relevant jurisdiction by the following relevant Act:

(a) the Trustee Companies Act 1947 (ACT);

(b) the Trustee Companies Act 1964 (NSW);

(c) the Trustee Companies Act 1968 (QLD);

(d) the Trustee Companies Act 1988 (SA);

(e) the Trustee Companies Act 1953 (TAS);

(f) the Trustee Companies Act 1984 (VIC);

(g) the Trustee Companies Act 1987 (WA);

workplace bullying means bullying that is unlawful under the applicable state or territory anti-discrimination or human rights legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms, it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.

PART 2 - Operational rules

Division 1 - Nature and purpose of rules

5.   Application of rules (ASCR 1)

These rules apply to solicitors and Australian-registered foreign lawyers acting in the manner of a solicitor.

6.   Purpose and effect of rules (ASCR 2)

(1)  The purpose of these rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these rules.

(2)  In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the rules apply in addition to the common law.

(3)  A breach of these rules is capable of constituting unsatisfactory professional conduct or professional misconduct, and may give rise to disciplinary action by the relevant regulatory authority, but cannot be enforced by a third party.

Division 2 - Fundamental duties of solicitors

7.   Paramount duty to court and administration of justice (ASCR 3)

A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

8.   Other fundamental ethical duties (ASCR 4)

A solicitor must also –

(a) act in the best interests of a client in any matter in which the solicitor represents the client; and

(b) be honest and courteous in all dealings in the course of legal practice; and

(c) deliver legal services competently, diligently and as promptly as reasonably possible; and

(d) avoid any compromise to his or her integrity and professional independence; and

(e) comply with these rules and the law.

9.   Dishonest and disreputable conduct (ASCR 5)

A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to –

(a) be prejudicial to, or diminish the public confidence in, the administration of justice; or

(b) bring the profession into disrepute.

10.   Undertakings (ASCR 6)

(1)  A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.

(2)  A solicitor must not seek from another solicitor, or that solicitor’s employee, associate or agent, undertakings in respect of a matter that would require the co-operation of a third party who is not party to the undertaking.

Division 3 - Relations with clients

11.   Communication of advice (ASCR 7)

(1)  A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.

(2)  A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the matter.

12.   Client instructions (ASCR 8)

A solicitor must follow a client’s lawful, proper and competent instructions.

13.   Confidentiality (ASCR 9)

(1)  Except as permitted in subrule (2) , a solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not –

(a) a solicitor who is a partner, principal, director or employee of the solicitor’s law practice; or

(b) a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client.

(2)  A solicitor may disclose information which is confidential to a client if –

(a) the client expressly or impliedly authorises disclosure; or

(b) the solicitor is permitted or is compelled by law to disclose; or

(c) the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations; or

(d) the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence; or

(e) the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or

(f) the information is disclosed to the insurer of the solicitor, law practice or associated entity.

14.   Conflicts concerning former clients (ASCR 10)

(1)  A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by subrule (2) .

(2)  A solicitor or law practice who or which is in possession of information which is confidential to a former client, where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter unless –

(a) the former client has given informed written consent to the solicitor or law practice so acting; or

(b) an effective information barrier has been established.

15.   Conflict of duties concerning current clients (ASCR 11)

(1)  A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this rule.

(2)  If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by subrule (3) .

(3)  Where a solicitor or law practice seeks to act in the circumstances specified in subrule (2) , the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client –

(a) is aware that the solicitor or law practice is also acting for another client; and

(b) has given informed consent to the solicitor or law practice so acting.

(4)  In addition to the requirements of subrule (3) , where a solicitor or law practice is in possession of information which is confidential to a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows:

(a) a solicitor may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the solicitor acting for another client; and

(b) a law practice (and the solicitors concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established.

(5)  If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of the clients (or a group of clients between whom there is no conflict) provided the duty of confidentiality to other client(s) is not put at risk and the parties have given informed consent.

16.   Conflict concerning solicitor’s own interests (ASCR 12)

(1)  A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this rule.

(2)  A solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client.

(3)  A solicitor must not borrow any money, nor assist an associate to borrow money, from –

(a) a client of the solicitor or of the solicitor’s law practice; or

(b) a former client of the solicitor or of the solicitor’s law practice who has indicated a continuing reliance upon the advice of the solicitor or of the solicitor’s law practice in relation to the investment of money –

unless the client or the former client is –

(c) an Authorised Deposit-taking Institution; or

(d) a trustee company; or

(e) the responsible entity of a managed investment scheme registered under Chapter 5C of the Corporations Act 2001 (Cth) or a custodian for such a scheme; or

(f) an associate of the solicitor and the solicitor is able to discharge the onus of proving that a full written disclosure was made to the client and that the client’s interests are protected in the circumstances, whether by legal representation or otherwise; or

(g) the employer of the solicitor.

(4)  A solicitor will not have breached this rule merely by –

(a) drawing a will appointing the solicitor or an associate of the solicitor as executor, provided the solicitor informs the client in writing before the client signs the will –

(i) of any entitlement of the solicitor, or the solicitor’s law practice or associate, to claim executor’s commission; and

(ii) of the inclusion in the will of any provision entitling the solicitor, or the solicitor’s law practice or associate, to charge legal costs in relation to the administration of the estate; and

(iii) if the solicitor or the solicitor’s law practice or associate has an entitlement to claim commission, that the client could appoint as executor a person who might make no claim for executor’s commission; or

(b) drawing a will or other instrument under which the solicitor (or the solicitor’s law practice or associate) will or may receive a substantial benefit other than any proper entitlement to executor’s commission and proper fees, provided the person instructing the solicitor is either –

(i) a member of the solicitor’s immediate family; or

(ii) a solicitor, or a member of the immediate family of a solicitor, who is a partner, employer or employee of the solicitor; or

(c) receiving a financial benefit from a third party in relation to any dealing where the solicitor represents a client, or from another service provider to whom a client has been referred by the solicitor, provided –

(i) the solicitor advises the client that a commission or benefit is or may be payable to the solicitor in respect of the dealing or referral and the nature of that commission or benefit; and

(ii) the solicitor advises the client that the client may refuse any referral; and

(iii) the client has given informed consent to the commission or benefit received or which may be received; or

(d) acting for a client in any dealing in which a financial benefit may be payable to a third party for referring the client, provided the solicitor has first disclosed the payment or financial benefit to the client.

17.   Completion or termination of engagement (ASCR 13)

(1)  A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter unless –

(a) the client has otherwise agreed; or

(b) the law practice is discharged from the engagement by the client; or

(c) the law practice terminates the engagement for just cause and on reasonable notice; or

(d) the engagement comes to an end by operation of law.

(2)  Where a client is required to stand trial for a serious criminal offence, the client’s failure to make satisfactory arrangements for the payment of costs will not normally justify termination of the engagement unless the solicitor or law practice has –

(a) served written notice on the client of the solicitor’s intention, a reasonable time before the date appointed for commencement of the trial or the commencement of the sittings of the court in which the trial is listed, providing the client at least 7 days to make satisfactory arrangements for payment of the solicitor’s costs; and

(b) given appropriate notice to the registrar of the court in which the trial is listed to commence.

(3)  Where a client is legally assisted and the grant of aid is withdrawn or otherwise terminated, a solicitor or law practice may terminate the engagement by giving reasonable notice in writing to the client, such that the client has a reasonable opportunity to make other satisfactory arrangements for payment of costs which would be incurred if the engagement continued.

18.   Client documents (ASCR 14)

(1)  A solicitor with designated responsibility for a client’s matter must ensure that, upon completion or termination of the law practice’s engagement –

(a) the client or former client; or

(b) another person authorised by the client or former client –

is given any client documents (or if they are electronic documents copies of those documents) as soon as reasonably possible when requested to do so by the client, unless there is an effective lien.

(2)  A solicitor or law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement, except where there are client instructions or legislation to the contrary.

19.   Lien over essential documents (ASCR 15)

Despite rule 18 , when a solicitor claims to exercise a lien for unpaid legal costs over client documents which are essential to the client’s defence or prosecution of current proceedings –

(a) if another solicitor is acting for the client, the first solicitor must surrender the documents to the second solicitor –

(i) if the second solicitor undertakes to hold the documents subject to the lien and with reasonable security for the unpaid costs; or

(ii) if the first solicitor agrees to the second solicitor agreeing to pay, or entering into an agreement with the client to procure payment of, the first solicitor’s costs upon completion of the relevant proceedings; or

(b) alternatively, the solicitor, upon receiving reasonable security for the unpaid costs, must deliver the documents to the client.

20.   Charging for document storage (ASCR 16)

A solicitor must not charge –

(a) for the storage of documents, files or other property on behalf of clients or former clients of the solicitor or law practice (or predecessors in practice); or

(b) for retrieval from storage of those documents, files or other property –

unless the client or former client has agreed in writing to such charge being made.

21.   Legal aid

A practitioner must inform a client of any entitlement to apply for legal aid.

Division 4 - Advocacy and litigation

22.   Independence – avoidance of personal bias (ASCR 17)

(1)  A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.

(2)  A solicitor will not have breached the solicitor’s duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructing solicitor’s instructions, simply by choosing, contrary to those instructions, to exercise the forensic judgments called for during the case so as to –

(a) confine any hearing to those issues which the solicitor believes to be the real issues; or

(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.

(3)  A solicitor must not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey the solicitor’s personal opinion on the merits of that evidence or issue.

(4)  A solicitor must not become the surety for the client’s bail.

23.   Formality before court (ASCR 18)

A solicitor must not, in the presence of any of the parties or solicitors, deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court.

24.   Frankness in court (ASCR 19)

(1)  A solicitor must not deceive or knowingly or recklessly mislead the court.

(2)  A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

(3)  A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.

(4)  A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which –

(a) are within the solicitor’s knowledge; and

(b) are not protected by legal professional privilege; and

(c) the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.

(5)  A solicitor who has knowledge of matters which are within subrule (4)  –

(a) must seek instructions for the waiver of legal professional privilege, if the matters are protected by that privilege, so as to permit the solicitor to disclose those matters under subrule (4) ; and

(b) if the client does not waive the privilege as sought by the solicitor –

(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 solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.

(6)  A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of –

(a) any binding authority; and

(b) where there is no binding authority, any authority decided by an Australian appellate court; and

(c) any applicable legislation –

known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.

(7)  A solicitor need not inform the court of matters within subrule (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 solicitor to have informed the court of such matters in the ordinary course has already arrived or passed.

(8)  A solicitor who becomes aware of matters within subrule (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.

(9)  A solicitor need not inform the court of any matter otherwise within subrule (8) which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.

(10)  A solicitor 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.

(11)  A solicitor must inform the court of any misapprehension by the court as to the effect of an order which the court is making, as soon as the solicitor becomes aware of the misapprehension.

(12)  A solicitor must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake.

25.   Delinquent or guilty clients (ASCR 20)

(1)  A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns, during a hearing or after judgment or if the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client –

(a) has lied in a material particular to the court or has procured another person to lie to the court; or

(b) has falsified or procured another person to falsify in any way a document which has been tendered; or

(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court –

must –

(d) advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and

(e) refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.

(2)  A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty –

(a) may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client; or

(b) in cases where the solicitor continues to act for the client –

(i) must not falsely suggest that some other person committed the offence charged; and

(ii) must not set up an affirmative case inconsistent with the confession; and

(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged; and

(iv) may argue that for some reason of law the client is not guilty of the offence charged; and

(v) may argue that for any other reason not prohibited by subparagraphs (i) and (ii) the client should not be convicted of the offence charged; or

(c) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

(3)  A solicitor whose client informs the solicitor 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; and

(b) not advise the client how to carry out or conceal that course; and

(c) not inform the court or the opponent of the client’s intention unless –

(i) the client has authorised the solicitor to do so beforehand; or

(ii) the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety.

26.   Responsible use of court process and privilege (ASCR 21)

(1)  A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court –

(a) is reasonably justified by the material then available to the solicitor; and

(b) is appropriate for the robust advancement of the client’s case on its merits; and

(c) is not made principally in order to harass or embarrass a person; and

(d) is not made principally in order to gain some collateral advantage for the client or the solicitor or the instructing solicitor out of court.

(2)  A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person –

(a) are reasonably justified by the material then available to the solicitor; and

(b) are appropriate for the robust advancement of the client’s case on its merits; and

(c) are not made principally in order to harass or embarrass a person.

(3)  A solicitor must not allege any matter of fact in –

(a) any court document settled by the solicitor; or

(b) any submission during any hearing; or

(c) the course of an opening address; or

(d) the course of a closing address or submission on the evidence –

unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.

(4)  A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that –

(a) available material by which the allegation could be supported provides a proper basis for it; and

(b) 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 and the case if it is not made out.

(5)  A solicitor must not make a suggestion in cross-examination on credit unless the solicitor believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.

(6)  A solicitor may regard the opinion of an instructing solicitor that material which is available to the instructing solicitor is credible, being material which appears to the solicitor from its nature to support an allegation to which subrules (1) , (2) , (3) and (4) apply, as a reasonable ground for holding the belief required by those subrules (except in the case of a closing address or submission on the evidence).

(7)  A solicitor who has instructions which justify submissions for the client, in mitigation of the client’s criminality, 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 solicitor believes on reasonable grounds that such disclosure is necessary for the proper conduct of the client’s case.

(8)  Without limiting the generality of subrule (2) , in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence –

(a) a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended –

(i) to mislead or confuse the witness; or

(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and

(b) a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.

27.   Communication with opponents (ASCR 22)

(1)  A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise).

(2)  A solicitor must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.

(3)  A solicitor will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.

(4)  A solicitor must not confer or deal with any party represented by, or to the knowledge of the solicitor indemnified by, an insurer, unless the party and the insurer have signified willingness to that course.

(5)  A solicitor must not, outside an ex parte application or a hearing of which an 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 solicitor in such a way as to require the solicitor to respond to the court; or

(b) the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

(6)  A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in subrule (5) .

(7)  A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under subrule (5)(b) other than the matters specifically notified by the solicitor to the opponent when seeking the opponent’s consent.

(8)  A solicitor must take steps to inform the opponent, as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that application promptly.

28.   Opposition access to witnesses (ASCR 23)

(1)  A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.

(2)  A solicitor will not have breached subrule (1) simply by telling a prospective witness or a witness that the witness need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.

29.   Integrity of evidence – influencing evidence (ASCR 24)

(1)  A solicitor must not –

(a) advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

(b) coach a witness by advising what answers the witness should give to questions which might be asked.

(2)  A solicitor will not have breached subrule (1) by –

(a) expressing a general admonition to tell the truth; or

(b) questioning and testing in conference the version of evidence to be given by a prospective witness; or

(c) drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but the solicitor must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

30.   Integrity of evidence – two witnesses together (ASCR 25)

(1)  A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time –

(a) about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and

(b) where such conferral could affect evidence to be given by any of those witnesses –

unless the solicitor believes on reasonable grounds that special circumstances require such a conference.

(2)  A solicitor will not have breached subrule (1) by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

31.   Communication with witnesses under cross-examination (ASCR 26)

A solicitor must not confer with any witness (including a party or client) called by the solicitor on any matter related to the proceedings while that witness remains under cross-examination, unless –

(a) the cross-examiner has consented beforehand to the solicitor doing so; or

(b) the solicitor –

(i) believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference; and

(ii) has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and

(iii) otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.

32.   Solicitor as material witness in client’s case (ASCR 27)

(1)  In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence that is material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.

(2)  In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence that is material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.

33.   Public comment during current proceedings (ASCR 28)

A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.

34.   Prosecutor’s duties (ASCR 29)

(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.

(2)  A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

(3)  A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.

(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.

(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 other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.

(6)  A prosecutor who has decided not to disclose material to the opponent under subrule (5) must consider whether –

(a) the charge against the accused to which such material is relevant should be withdrawn; or

(b) the accused should be faced only with a lesser charge to which such material would not be so relevant.

(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 all of the relevant circumstances; and

(b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue –

unless –

(c) the opponent consents to the prosecutor not calling a particular witness; or

(d) 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

(e) the only matter with respect to which the particular witness can give admissible evidence goes to establishing a particular point already adequately established by another witness or other witnesses; or

(f) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable, provided that 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 grounds within paragraphs (c), (d), and (e) together with the grounds on which the prosecutor has reached that decision.

(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; and

(b) make available to the opponent a copy of the material if it is in documentary form.

(9)  A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.

(10)  A prosecutor must not inform the court or an 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.

(11)  A prosecutor who has informed the court of matters within subrule (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.

(12)  A prosecutor –

(a) must correct any error made by the opponent in address on sentence; and

(b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence; and

(c) must assist the court to avoid appealable error on the issue of sentence; and

(d) may submit that a custodial or non-custodial sentence is appropriate.

(13)  A solicitor who appears as counsel assisting an inquisitorial body, such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or other statutory tribunal or body having investigative powers, must act in accordance with subrules (1) , (3) and (4) as if the body is a court referred to in those subrules and any person whose conduct is in question before the body is an accused referred to in this rule.

Division 5 - Relations with other persons

35.   Another solicitor’s or other person’s error (ASCR 30)

A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact.

36.   Inadvertent disclosure (ASCR 31)

(1)  Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person, and who is aware that the disclosure was inadvertent must not use the material and must –

(a) return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and

(b) notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.

(2)  A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must –

(a) notify the opposing solicitor or the other person immediately; and

(b) not read any more of the material.

(3)  If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

37.   Unfounded allegations (ASCR 32)

A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

38.   Communication with another solicitor’s client (ASCR 33)

A solicitor must not deal directly with the client or clients of another practitioner unless –

(a) the other practitioner has previously consented; or

(b) the solicitor believes on reasonable grounds that –

(i) the circumstances are so urgent as to require the solicitor 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 other party or parties to a matter are represented and, if so, by whom; or

(d) there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with contact; or

(e) the solicitor is asked to provide a second opinion by the client or clients of the other practitioner.

39.   Dealing with other persons (ASCR 34)

(1)  A solicitor must not in any action or communication associated with representing a client –

(a) make any statement which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and which misleads or intimidates the other person; or

(b) threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor’s client is not satisfied; or

(c) use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.

(2)  In the conduct or promotion of a solicitor’s practice, the solicitor must not 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 solicitor at the time when the instructions are sought.

40.   Contracting with third parties (ASCR 35)

If a solicitor instructs a third party on behalf of the client, and the solicitor is not intending to accept personal liability for payment of the third party’s fees, the solicitor must advise the third party in advance.

41.   Practitioner member of statutory tribunal

(1)  A practitioner must not undertake work on behalf of a client in relation to, or appear in, any proceedings before a statutory tribunal of which the practitioner is a member.

(2)  A practitioner must not appear in any proceedings before a statutory tribunal on behalf of a client if a partner, employer or employee of the practitioner is sitting as a member of that statutory tribunal for the purposes of those proceedings.

(3)  A practitioner must not undertake work on behalf of a client in relation to, or appear in, any proceedings before a statutory tribunal of which a partner, or employer or employee of the practitioner is a member unless –

(a) the practitioner advises his or her client and any other party to the proceedings that a partner, employer or employee of the practitioner is a member of that statutory tribunal; and

(b) that advice is given as soon as is practicable.

(4)  A reference to a partner of a practitioner is a reference to a partner, principal or director of the law practice of which the practitioner is a partner, principal or director.

(5)  A reference to an employee of a practitioner includes a reference to a practitioner employed by a law practice of which the first practitioner is a partner, principal or director.

Division 6 - Law practice management

42.   Advertising (ASCR 36)

(1)  A solicitor or principal of a law practice must ensure that any advertising, marketing or promotion in connection with the solicitor or law practice is not –

(a) false; or

(b) misleading or deceptive or likely to mislead or deceive; or

(c) offensive; or

(d) prohibited by law.

(2)  A solicitor must not convey a false, misleading or deceptive impression of specialist expertise and must not advertise or authorise advertising in a manner that uses the words “accredited specialist” or a derivative of those words (including post-nominals), unless the solicitor is a specialist accredited by the relevant professional association.

43.   Supervision of legal services (ASCR 37)

A solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter.

44.   Returning judicial officers (ASCR 38)

A solicitor who is a former judicial officer must not appear in –

(a) any court if the solicitor has been a member thereof or presided therein; or

(b) any court from which appeals to any court of which the solicitor was formerly a member may be made or brought –

for a period of two years after ceasing to hold that office unless permitted by the relevant court.

45.   Sharing premises (ASCR 39)

Where a solicitor or law practice shares an office with any other entity or business engaged in another calling, and a client is receiving services concurrently from both the law practice and the other entity, the solicitor, or law practice (as the case requires), must take all reasonable steps to ensure that the client is clearly informed about the nature and the terms of the services being provided to the client by the law practice, including (if applicable) that the services provided by the other entity are not provided by the law practice.

46.   Sharing receipts (ASCR 40)

A solicitor must not, in relation to the conduct of the solicitor’s practice, or the delivery of legal services, share, or enter into any arrangement for the sharing of, the receipts arising from the provision of legal services by the solicitor with –

(a) any disqualified person; or

(b) any person found guilty of an indictable offence that involved dishonest conduct, whether or not a conviction was recorded.

47.   Anti-discrimination and harassment (ASCR 42)

A solicitor must not, in the course of practice, engage in conduct which constitutes –

(a) discrimination; or

(b) sexual harassment; or

(c) workplace bullying.

48.   Dealing with regulatory authority (ASCR 43)

(1)  Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.

(2)  A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments, or information, in relation to the solicitor’s conduct or professional behaviour, in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct, and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.

These rules were made by the Law Society of Tasmania at a meeting held on 7 September 2020.

The common seal of the Law Society of Tasmania was affixed on 7 September 2020, in the presence of –

TREVOR JOSEPH MCKENNA

Vice President

AMANDA THOMPSON

Member

LUKE RHEINBERGER

Member

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 16 September 2020

These rules are administered in the Department of Justice.