17. Independence - avoidance of personal bias

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 judgements 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 does not breach 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:
   1. confine any hearing to those issues which the solicitor believes to be the real issues;
   2. present the client’s case as quickly and simply as may be consistent with its robust advancement; or
   3. 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.

Commentary

17.1  No mere mouthpiece

A solicitor on the record as the client's representative takes responsibility for the matter and cannot "shelter" behind the client. They must exercise their independent forensic judgment (see Rule 17.2), and cannot 'slavishly … follow a client's instructions as to how a case is to be conducted': Queensland Law Society v Stevens [1996] 17 Qld Lawyer Reps 27, 30. Lawyers cannot allow themselves to be controlled by their clients, and to do so leaves them open to personal liability for costs: Wentworth v Rogers [1999] NSWCA 403, [46] – [47] ('Wentworth'). Where a client wishes to take over the conduct of the matter, a solicitor should withdraw from representation. A solicitor who withdraws in such circumstances can remain in the background in order to advise and assist the client: Wentworth, [46]. Staying on the record as the client's representative means retaining responsibility for the matter.

17.2 Exercising forensic judgment

A solicitor must exercise their independent 'forensic judgement' in making decisions in the course of a case, other than those which are the client's decision alone. Such client decisions may include:

1. the commencement of proceedings;
2. the joinder of parties;
3. admissions or concessions of fact;
4. amendments of pleadings;
5. undertakings to a court; and
6.  a plea in criminal proceedings, but does include advice given to assist the client or the instructing solicitor to make such decisions.⁶²

The decisions include those to limit a hearing to 'the real issues', present the client’s case efficiently, and inform the court of relevant authorities (see Rule 19.6). While Rule 17.2 offers these decisions as exceptions to the solicitor's duties to the client, at common law they are positive duties for the solicitor. For example, a solicitor must exercise forensic judgment to 'prune' the case of 'irrelevancies and side issues that seem important to the client,' but are not important to the determination of the case: Rondel v Worsley [1969] 1 AC 191. The solicitor must give 'appropriate consideration of the client's and the instructing solicitor's instructions': Rule 17.1. Hence, the solicitor should not ignore the client's desires 'without spending any appreciable time considering them'⁶³. But, in any case, a lawyer will not breach their duty by exercising independent judgment, particularly for 'any act honestly done in the conduct or management of the cause': Giannarelli v Wraith (1988) 165 CLR 543, 556-7.

17.3 Personal opinion

A solicitor must not appear to offer a personal opinion on the merits of any material evidence or issue: Rule 17.3. It is not the role of a lawyer to 'express personal opinions or enter the fray as a contestant' in court: R v Callaghan [1994] 2 Qd R 300, 306. Where a prosecutor expresses a personal opinion, there is a risk a jury will consider that opinion rather than whether the evidence proves the Crown case: GDD v The Queen [2010] NSWCCA 62, [53]. In those circumstances, an accused person could be denied a fair trial: Whitehorn v The Queen (1983) 152 CLR 657.

By limiting the Rule to 'material' evidence or issues, 'trivial' or 'merely procedural matters' may on occasion be the subject of personal opinion: see American Bar Association, Report of the Committee on Standard Advocacy Rules (February 1995), 2, quoted by Dal Pont, [17.40], fn 37.

17.4  No surety for client's bail

Lawyers must not allow themselves to become the surety for their client's bail, as doing so may risk damaging the lawyers' professional judgment, the appearance of independence, or identifying with the client’s cause.⁶⁴

62 'Forensic judgment' is not defined in the ASCR. However, the repealed Legal Profession (Solicitors) Rule 2007 (Qld) excluded this list of decisions from its definition.

63 Quoted by GE Dal Pont, fn 36, [17.140] from the Australian Bar Association's Committee on Standard Advocacy Rules (February 1995), page 2. 

64 Gino Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th ed, 2013) 547.