Advocacy and litigation
This section contains Rules 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.
17. Independence - avoidance of personal bias
- 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 judgements called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
- 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 judgements called for during the case so as to:
- confine any hearing to those issues which the solicitor believes to be the real issues;
- present the client’s case as quickly and simply as may be consistent with its robust advancement; or
- inform the court of any persuasive authority against the client’s case.
- 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.
- A solicitor must not become the surety for the client’s bail.
18. Formality before the court
- 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.
19. Frankness in court
- A solicitor must not deceive or knowingly or recklessly mislead the court.
- 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.
- 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.
- A solicitor seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
- are within the solicitor's knowledge;
- are not protected by legal professional privilege; and
- the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client.
- A solicitor who has knowledge of matters which are within Rule 19.4 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 Rule 19.4; and
- if the client does not waive the privilege as sought by the solicitor:
- must inform the client of the client's responsibility to authorise such disclosure and the possible consequences of not doing so; and
- must inform the court that the solicitor cannot assure the court that all matters which should be disclosed have been disclosed to the court.
- 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:
- any binding authority;
- where there is no binding authority, any authority decided by an Australian appellate court; and
- 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.
- A solicitor 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 judgement 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.
- A solicitor who becomes aware of matters within Rule 19.6after judgement 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 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
- 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.
- A solicitor need not inform the court of any matter otherwise within Rule 19.8 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.
- 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.
- 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.
- 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.
20. Delinquent or guilty clients
- 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 judgement or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:
- has lied in a material particular to the court or has procured another person to lie to the court;
- has falsified or procured another person to falsify in any way a document which has been tendered; or
- 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;
- advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and
- 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.
- A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:
- 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;
- in cases where the solicitor continues to act for the client:
- must not falsely suggest that some other person committed the offence charged;
- must not set up an affirmative case inconsistent with the confession;
- may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
- may argue that for some reason of law the client is not guilty of the offence charged; and
- may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged;
- 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.
- A solicitor whose client informs the solicitor that the client intends to disobey a court's order must:
- advise the client against that course and warn the client of its dangers;
- not advise the client how to carry out or conceal that course; and
- not inform the court or the opponent of the client's intention unless:
- the client has authorised the solicitor to do so beforehand; or
- the solicitor believes on reasonable grounds that the client's conduct constitutes a threat to any person's safety.
21. Responsible use of court process and privilege
- A solicitor must take care to ensure that the solicitor's advice to invoke the coercive powers of a court:
- is reasonably justified by the material then available to the solicitor;
- is appropriate for the robust advancement of the client's case on its merits;
- is not made principally in order to harass or embarrass a person; and
- is not made principally in order to gain some collateral advantage for the client or the solicitor or the instructing solicitor out of court.
- A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
- are reasonably justified by the material then available to the solicitor;
- are appropriate for the robust advancement of the client's case on its merits; and
- are not made principally in order to harass or embarrass a person.
- A solicitor must not allege any matter of fact in:
- any court document settled by the solicitor;
- any submission during any hearing;
- the course of an opening address; or
- 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.
- 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:
- available material by which the allegation could be supported provides a proper basis for it; and
- 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.
- 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.
- 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 Rules 21.1, 21.2, 21.3 and 21.4 apply as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).
- 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.
- Without limiting the generality of Rule 21.2, 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 solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
- to mislead or confuse the witness; or
- to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
- a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
- a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
22. Communication with opponents
- A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise).
- 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.
- 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.
- 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.
- 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:
- the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
- the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
- A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.
- 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 Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent's consent.
- 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.
23. Opposition access to witnesses
- 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.
- A solicitor will not have breached Rule 23.1 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.
24. Integrity of evidence - influencing evidence
- A solicitor must not:
- advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or
- coach a witness by advising what answers the witness should give to questions which might be asked.
- A solicitor will not have breached Rules 24.1 by:
- expressing a general admonition to tell the truth;
- questioning and testing in conference the version of evidence to be given by a prospective witness; or
- drawing the witness’ attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.
25. Integrity of evidence - two witnesses together
- 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:
- about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing; and
- 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.
- A solicitor will not have breached Rule 25.1 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.
26. Communication with witnesses under cross-examination
- 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:
- the cross-examiner has consented beforehand to the solicitor doing so; or
- the solicitor:
- believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;
- has, if possible, informed the cross-examiner beforehand of the solicitor’s intention to do so; and
- otherwise does inform the cross-examiner as soon as possible of the solicitor having done so.
27. Solicitor as material witness in client's case
- In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing,
- In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence 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.
28. Public comment during current proceedings
- 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.
29. Prosecutors duties
- 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.
- A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.
- A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused.
- 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.
- 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.
- A prosecutor who has decided not to disclose material to the opponent under Rule 29.5 must consider whether:
- the charge against the accused to which such material is relevant should be withdrawn; or
- the accused should be faced only with a lesser charge to which such material would not be so relevant.
- A prosecutor must call as part of the prosecution’s case all witnesses:
- whose testimony is admissible and necessary for the presentation of all of the relevant circumstance;
- whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue;
- the opponent consents to the prosecutor not calling a particular witness;
- 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;
- 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
- 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 ground within (ii), (iii) or (iv) together with the grounds on which the prosecutor has reached that decision.
- A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully or improperly obtained must promptly:
- inform the opponent if the prosecutor intends to use the material; and
- make available to the opponent a copy of the material if it is in documentary form.
- A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative.
- 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.
- A prosecutor who has informed the court of matters within Rule 29.10, 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.
- A prosecutor:
- must correct any error made by the opponent in address on sentence;
- must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
- must assist the court to avoid appealable error on the issue of sentence;
- may submit that a custodial or non-custodial sentence is appropriate; and
- may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant decisions.
- 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 Rules 29.1, 29.3 and 29.4 as if the body is a court referred to in those Rules and any person whose conduct is in question before the body is an accused referred to in Rule 29.