Queensland Law Society

ASCR 2012

On 1 June 2012 the Australian Solicitors Conduct Rules (ASCR) commenced.

The ASCR replaces the Solicitors Rule 2007. For details on the difference between the ASCR rule and Solicitor Rule 2007, please download the comparison table.

The Rules apply to us as solicitors and to Australian-registered foreign lawyers acting in the manner of a solicitor.

The ASCR is designed to assist us to act ethically in accordance with our common law and fiduciary duties and the rules established by the ASCR.

The ASCR does not create a code. The rules contained within the ASCR are a framework and must be read in conjunction with the common law and equity.

As Sir Gerard Brennan AC noted in an address to the Queensland Bar Association on 3 May 1992:

The first, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what the barrister knows he or she should do: ethics are what the barrister does. They are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion. There is no really effective forum for their enforcement save individual acceptance and peer expectation. However, among those who see themselves as members of a profession, peer expectation is sufficient to maintain the profession’s ethical code. Ethics give practical expression to the purpose for which a profession exists, so a member who repudiates the ethical code in effect repudiates members of the profession. It follows that if we are to gain an understanding of the ethics of the Bar, we must first ask ourselves whether the Bar is truly a profession and as certain the purpose for which it exists. Only then can we see whether and how the ethics of the Bar express that purpose.

As Sir Brennan noted ethics are what we do.

Some significant changes are:

The first fundamental duty is the paramount duty. Rule 3 provides that our paramount duty is to the court and the administration of justice. This rule prevails to the extent of inconsistency with any other duty.

The second change is the introduction of other fundamental ethical duties in Rule 4. This rule provides, in part, that we must also:

  1. act in the best interests of a client;
  2. be honest and courteous in all dealings in the course of legal practice;
  3. deliver legal services competently, diligently and as promptly as reasonably possible.

Rule 4 also covers other duties.

Rule 6 brings together the various rules on undertakings into two sub-rules.

Rule 7.1 requires that we “provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices…”  Rule 7.2 requires us to inform clients as to the alternatives to litigation that are reasonably available to the client.

Rule 8 requires us to follow a client’s lawful, proper and competent instructions.

Rules 10 to 13 are designed to assist us to resolve ethical conflict dilemmas. These rules introduce the concepts of “informed consent and information barriers “into the Rules. A definition of “former client” is in the glossary.

Rule 11.3 allows us to act for parties whose interests are divergent provided all parties have given informed consent to us so acting. This Rule must be read in conjunction with the conflict rules stated in 11.1 and 11.2.

In normal circumstances where an actual conflict arises when we act for than one client whose interests are adverse we must withdraw. Rule 11.5 permits us in limited circumstances to continue to act for one of the parties in a concurrent representation where an actual conflict arises between them during the course of the retainer. This can only occur when our obligation of confidentiality is not put at risk and all our clients have given informed consent for us to continue to represent one of them. Satisfying this rule will be very difficult and the onus will lie upon us to establish that the requirements of the rule have been satisfied.

Rule 12.4.3 allows us to receive a commission or referral fee provided the client has given informed consent and disclosure of the nature of the commission. This is an improvement on current Solicitors Rule 2007 rule 32.1.1 which requires only disclosure but not consent prior to receiving a referral fee.

The Advocacy and Litigation Rules (17-29) are similar to the Queensland Barristers Rule 2011 (introduced on 23 December 2011) so as to maintain equivalent standards between the Bar and solicitor-advocates in this regard.

Rule 27.1 requires that where it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues we must not appear as advocate for the client. Rule 27.2 permits us to continue to act for a client in similar circumstances as specified in Rule 27.1 (but not as an advocate) unless doing so “would prejudice the administration of justice”. Remember we must also have regard to the paramount duty.

Rule 30 requires that we 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.

Rule 31 sets out what needs to occur in the event of inadvertent disclosure.

Rule 32 incorporates for the first time a prohibition on false accusations or unfounded threats to complain to the Regulator.

Rule 38 incorporates for the first time a two-year prohibition on returning judicial officers appearing in a court over which they once presided.

Rule 42 incorporates an anti-discrimination, bullying and harassment rule.

The Rules apply to us as solicitors and to Australian-registered foreign lawyers acting in the manner of a solicitor.

Over the next few months members of the Ethics Centre will be posting on the web site commentary on the ASCR and its interplay with the common law and how it may affect us in the practice of law.

Stafford Shepherd 
Senior Ethics Solicitor