Fundamental duties of solicitors

4.1 A solicitor must also:

4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and
4.1.5 comply with these Rules and the law.

Acting in the best interests of the client

The ethical duty to act in the best interests of the client is best understood through the observation of specific duties described later in the ASCR, such as:

• The duty to maintain client confidentiality (rule 9), and
• The duty of loyalty to the client, which includes,
  • duties owed to a former or a potential client (rule 10),
  • duties owed to concurrent clients (rules 11, 11A), and
  • the duty to avoid conflict with the solicitor’s own personal interests (rule 12).

These duties are examples of the fundamental principle and give effect to the general duty.

Honesty and courtesy

The duty of honesty is considered in detail under rule 5 below.

The duty of courtesy derives from an expectation that solicitors assist the public interest in the appropriate administration of justice, as well as contractual and other legal obligations owed to clients and third parties. The use of insulting, offensive, or discourteous language by a solicitor towards clients, other practitioners, court officers, and members of the public is likely to bring the legal profession into disrepute.²⁸ Courtesy has a ‘real power’ as explained in Lander v Council of the Law Society of the Australian Capital Territory:

A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a real power that comes from maintaining one’s dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect, and from refusing to respond in kind to personal insult.²⁹

The Court noted that a solicitor’s choice to be confrontational rather than persuasive may not be an effective option, but this would not ordinarily be considered unsatisfactory professional conduct. However, it:

is misconduct to abuse [a practitioner’s] privilege by making unfounded accusations knowing that there was no reasonable basis for them, worse if done gratuitously or even more pertinently, if it were shown to be for a collateral purpose.³⁰

In considering where the boundaries of acceptable, ethical conduct lie, courts have applied the interrelated tests of:

• whether the impugned behaviour of the solicitor pursued legitimate interests of their client,
• whether the solicitor had a reasonable professional basis for the behaviour, and
• whether the solicitor was acting in a way that maintained the integrity and reputation of the legal profession.

In Victorian Legal Services Commissioner v McDonald,³¹ the Court considered a case where a solicitor wrote a letter in which he described an opposing legal practitioner as being ‘fundamentally dishonest’ and ‘telling lies’ which was repeated in a second letter.³² The Court ultimately found that:

it is important to take into account the right — and indeed the duty — of a practitioner to fearlessly and fully propound the client’s interests. The fulfilment of that duty to the client, may, on occasion, call for robust advocacy on the client’s behalf. However, that advocacy is regulated by a professional rule that requires practitioners to take all reasonable care to maintain the integrity and reputation of the legal profession and … instrumental to that objective is the obligation of professional courtesy and the avoidance of offensive or provocative language or conduct.³³

In Legal Services Commissioner v Winning,³⁴ the Tribunal concluded that expletive and derogatory comments spoken in court were ‘offensive, insulting and discourteous not just to the opponent but also troubling to the Bench’. However, the Tribunal disagreed that the comments:

had the potential or tendency to bring the criminal justice system into disrepute … given that an apology was offered immediately once the true facts were understood by the respondent so that any person in the courtroom who heard the disparaging words would have heard the apology.³⁵

Another disciplinary charge relating to offensive language during a private telephone call with a Crown Prosecutor was also dismissed because of a lack of potential to bring the legal profession or criminal justice system into disrepute. However, the solicitor was found guilty of professional misconduct on a charge relating to grossly offensive and discourteous behaviour in open court, with the Court finding:

Such language from a legal practitioner in a public forum would be inexcusable. In submissions in a court it was likely to undermine the confidence of the public in a serious way in the administration of criminal justice in Queensland.³⁶

The rule extends to conduct outside courts. The Tribunal noted in Legal Services Commissioner v XBT that:

there is no question that sending rude, demeaning, derogatory, disparaging, personally abusive or offensive, undisciplined and discourteous correspondence to or about a third party with an opposing interest in a matter where the practitioner acts for a client breaches rule 28(5) Solicitors Rule 2007 (since repealed) and meets the statutory description of unprofessional conduct.

The conduct diminishes the dignity and high standing of the profession and tends to reduce community respect for it. It is unbecoming and suggests a loss of the objectivity, independence and judgment needed for the proper discharge of professional responsibilities on which the administration of justice depends and the court relies.³⁷

The duty not to diminish the public confidence in the administration of justice or bring the profession into disrepute is considered in further detail under rule 5 below.

For Queensland practitioners, see Guidance Statement No. 31 - Courtesy in communications.³⁸

Competence

Civil and professional standard of care

Solicitors must deliver legal services competently, diligently, and promptly. The duty of competence exists once there is an express or implied engagement of the solicitor. The retainer between the solicitor and client, whether in writing or oral,³⁹ identifies the client and defines the lawyer’s duties to the client.⁴⁰

Some duties can be implied by a court. In Robert Bax and Associates v Cavenham Pty Ltd,⁴¹ the Court held a retainer extended beyond mechanical tasks of document preparation.⁴² In the circumstances of this case, the Court found the solicitor should have evaluated certain risks and advised his client about them, even though such advice had not been specifically requested. A duty to advise may exist even if the client does not request it, especially if the client lacks experience or is unfamiliar with common legal practices.⁴³

A solicitor is not required to take on every matter. Instructions should only be accepted by a solicitor who is confident that they have the necessary degree of competence to undertake the matter. The solicitor should also ensure that they take all reasonable measures to properly verify the identity of their client.⁴⁴ Solicitors are reminded that they may have legislative obligations such as conducting customer due diligence as required under the Anti-Money Laundering and Counter-Terrorism Act 2006 (Cth).

In addition to the solicitor’s civil law duty to exercise reasonable care and skill in the provision of professional advice, the Legal Profession Act establishes minimum standards of competence which apply to lawyers as a professional requirement. Section 418 of the Legal Profession Act provides that unsatisfactory professional conduct: 

includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 

Section 419 of the Act provides that ‘if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence’ it may constitute professional misconduct. 

Courts have considered the threshold required to warrant a disciplinary finding against a solicitor. In Legal Services Commissioner v Bone,⁴⁵ it was found that the question for a disciplinary Tribunal was whether the conduct was ‘sufficiently substantial to warrant the conclusion that it ‘constitutes unsatisfactory professional conduct’. 

In Di Giovanni v Council of the Law Society of New South Wales the Tribunal found:

Not every professional failing constitutes unsatisfactory professional conduct. Rather, the ‘falling short’ of the standard of competence and diligence contemplated by s 296 of the Uniform Law must be sufficiently substantial. An isolated instance, not involving unethical conduct and more in the nature of conduct which might give rise to an assertion of negligence is less likely to amount to unsatisfactory professional conduct.⁴⁶

In Legal Services Commission v Laylee & Anor,⁴⁷ a solicitor lodged a caveat pursuant to an equitable mortgage without a written agreement and another solicitor in the firm billed the client for this work while the initial solicitor was on leave. Here the Tribunal found: 

that the conduct was more in the nature of a mere slip and certainly not, as is submitted by the Commissioner, a very stark misapprehension of instructions followed by an equally stark lack of curiosity and it was not conduct which fell so far short of accepted standards of competence that it amounted to unsatisfactory professional conduct. … the conduct was not sufficiently substantial to be unsatisfactory professional conduct.⁴⁸ 

The Tribunal also considered how to apply the professional statutory standard in Legal Services Commissioner v Trost:

But these breaches are not, by their very nature, so trivial as to warrant exoneration. Each was a significant departure from appropriately competent professional conduct, and ought be characterised as such.

Even if one applies the definition in s 418, this Tribunal considers that members of the public are entitled to expect that reasonably competent Australian legal practitioners will observe the professional rules which bind them and, more fundamentally, act in accordance with their paramount duty to the administration of justice.⁴⁹

Supervision

Discipline might also result from a failure of a solicitor to take responsibility for the lack of competence shown by a solicitor under their supervision. In Doolan v Legal Practitioners Admissions Board the Tribunal found that: 

[s]upervision and appropriate support of staff is part and parcel of the employers’ role. After all, the allocation and supervision of all professional legal work carried out on a firm’s behalf is an elemental and non-delegable duty the practice owner owes to clients.⁵⁰

In Legal Services Commissioner v Stevenson⁵¹ the Tribunal considered the context in which a solicitor might fail to provide appropriate supervision:

[A] picture emerged of a sole practitioner who was labouring under sustained and significant personal and professional pressures and who was simply not coping. His evidence revealed a person who, whilst well-intentioned, was lacking any proper administrative structure, or any other form of scaffolding which would support him in the pursuit of his professional practice. Of further concern to the Tribunal at that time were the details that emerged of his supervision, or lack of supervision, of junior solicitors who were employed in the course of his practice. ⁵²

For Queensland practitioners, see Guidance Statement No. 16 – Supervision.⁵³

Technology

The duty of competence includes competent use of relevant technology. 

All aspects of professional practice are increasingly impacted by technology from basic office management systems to virtual court appearances, and advanced technology for large case management. 

Courts around the world have even acknowledged that competent performance of work may require the use of technology in relation to legal research or large scale document discovery.⁵⁴

Artificial Intelligence (AI) technology also presents potential benefits and risks in legal practice. Courts and professional bodies have issued practice and guidance notes alerting their users to the dangers of AI associated with the likelihood of generating incorrect authorities and possible breaches of confidentiality duties and the law.⁵⁵ In Valu v Minister for Immigration and Multicultural Affairs (No 2) (‘Valu’)⁵⁶ and Re Dayal,⁵⁷ practitioners made submissions which contained fictitious cases generated by AI, unchecked by the solicitor. In both cases, the Court referred the practitioner to the relevant disciplinary authority for possible charges. In Valu, Skaros J commented that:

[t]here is a strong public interest in referring this conduct to the regulatory authority in NSW given the increased use of generative AI tools by legal practitioners. The use of generative AI in legal proceedings is a live and evolving issue.⁵⁸

For Queensland practitioners, see: 

• Guidance Statement No. 25 – Professional Standards When Appearing in Court Remotely⁵⁹
• Guidance Statement No. 37 – Artificial Intelligence in Legal Practice⁶⁰
• The use of Generative Artificial Intelligence (AI): Guidelines for Responsible Use by Non-Lawyers (updated September 2025)
• Supreme Court of Queensland, Practice Direction Number 5 of 2025: Accuracy of References in Submissions (September 2025)

Diligence and promptness

Breaches of the requirement under this rule to deliver legal services competently, diligently and as promptly as reasonably possible may result in substantial delays or total failure to deliver services to the client. This can include missing deadlines or failing to file documents in court or administrative proceedings. Where these failings involve an isolated incident and there is some explanation for the failure, tribunals have generally characterised this conduct as constituting unsatisfactory professional conduct.⁶¹

However, as noted in Legal Services Commissioner v Smith, ‘[g]ross neglect and delay, particularly if it is part of pattern, can attract a finding of professional misconduct’.⁶² For instance, in Legal Services Commissioner v Coburn,⁶³ the solicitor failed to appear in a hearing in a criminal matter where an adverse order was made against the client. The Tribunal determined that the solicitor’s conduct was ‘a solitary instance which, in the panel’s view, means it falls readily, and much more apparently, within the definition of unsatisfactory professional conduct’.⁶⁴

In Legal Services Commissioner v Mouritz,⁶⁵ the solicitor delayed initiating proceedings on behalf of the client for two years and failed to respond to the client’s repeated emails and telephone calls over a significant period. The Tribunal noted that the client was ‘able to resolve the matter through the steps which he took after termination of the retainer, and … [the solicitor] did not engage in a complete lack of work nor completely failed to engage with’ the client and characterised the conduct as unsatisfactory professional conduct.⁶⁶ In contrast, in Legal Services Commissioner v Bussa⁶⁷ the Tribunal found a delay of 10 years to file a personal injuries claim (which resulted in the client’s claim being statute barred) amounted to professional misconduct. Similarly, in Legal Services Commissioner v McHenry⁶⁸ there were 30 separate disciplinary charges against the practitioner, with many relating to substantial delays in acting for clients or failure to initiate actions over significant periods, as well as making false representations to clients. The solicitor was struck from the roll.

Integrity and professional independence

An aspect of a solicitor’s duty is exercising independent judgment in the context of a client’s matter. A lack of objectivity or integrity undermines the justice system. Sir Gerard Brennan wrote:

If a lawyer undertakes to give more than practical legal guidance he has started to identify himself with his client’s case… The objective of a total service may be seen to be the achieving of results satisfactory to the client and that would eliminate the distance between the lawyer’s duty to the law and the lawyer’s interest in the client’s affairs. Keeping that distance is essential to the integrity of the lawyers’ conduct… clients seek a lawyer’s guidance precisely because it is independent of the client’s interests and objective in its legal content.⁶⁹

Independence and integrity are also core aspects of specific duties including

• avoiding conflicts between duties owed to current and former clients (rule 10),
• avoiding conflicts between duties owed to two or more clients (rule 11),
• avoiding conflict between the duty to serve the best interests of a client and the interests of the solicitor (rule 12),
• exercise of forensic judgment in a matter that is before the court (rule 17.1), and
• the solicitor material witness rule (rule 27).

Solicitors must be careful that their relationship with the client remains professional. This is one of the reasons that there is a rule that prohibits a solicitor becoming the surety for the client’s bail (rule 17.4). Solicitors should also give careful reflection as to whether it is appropriate to act for family or friends. 

Where a family or personal connection exists between a lawyer and the opposing lawyer, care should be taken to make appropriate disclosures and obtain informed consent.⁷⁰

In Legal Services Commissioner v Sullivan the Tribunal noted a potential for a serious conflict of interest when a solicitor employed his wife for client services:

Leaving aside the eyewatering amount of funds effectively diverted to the [lawyer’s] wife by reason of his dishonest conduct, it is quite clear that the [lawyer’s] failure to declare to his employer firm, and to his clients, the relationship between the service provider – in this case his wife or his wife’s firm – was a fundamental failure to observe the necessary standards of integrity and professional independence. In short, one struggles to find a more stark example of what could, in shorthand, be described as a patent conflict of interest, and the need for there to be appropriate disclosure of that conflict in the context of the provision of professional services.⁷¹

See also the High Court’s consideration of a claim of apprehended judicial bias in Charisteas v Charisteas⁷² relating to several social interactions between the trial judge and a representing barrister during a long-running family law case. 

For Queensland practitioners, see Guidance Statement No. 23 – Acting for Family and Friends and Guidance Statement No. 38 – Disclosure of third party relationships.⁷³

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<sup>28. Baker v Legal Services Commissioner [2006] QCA 145; Legal Services Commissioner v Winning [2008] LPT 13.
29. Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117, [23], quoting Matthew B Durant, ‘Views from the Bench: Civility and Advocacy’ [2001] Utah Bar Journal 35.
30. Ibid [32].
31. [2019] VSCA 18.
32. Ibid [19].
33. Ibid [121].
34. [2008] LPT 13.
35. Ibid [32].
36. Ibid [64].
37. [2018] QCAT 64 [19]-[20].
38. Queensland Law Society, Courtesy in communications (Guidance Statement No. 31, 22 October 2024).
39. Note Legal Profession Act (n 5) pt 3.4 div 3 regarding legislative requirements for costs disclosure. 
40. GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 8th ed, 2025) 86.
41. [2012] QCA 177.
42. Ibid [54].
43. Littler v Price [2005] 1 Qd R 275, [51].
44. Youssef v New South Wales Legal Services Commissioner [2020] NSWCATOD 85.
45. Legal Services Commissioner v Bone [2013] QCAT 550, [64]. 
46. [2024] NSWCATOD 66, [76].
47. [2016] QCAT 237.
48. Ibid [72].
49. [2019] QCAT 357 [96]–[97].
50. [2016] QCAT 98, [135].
51. [2021] QCAT 275.
52. Ibid [7].
53. Queensland Law Society, Supervision (Guidance Statement No. 16, 18 March 2019).
54. Drummond v The Cadillac Fairview Corp. Ltd 2019 ONCA 447, [10]; McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 2) [2017] VSC 640.
55. See also Queensland Law Society, Artificial Intelligence in Legal Practice (Guidance Statement No. 37, 24 October 2024). 
56. [2025] FedCFamC2G 95 (‘Valu’).
57. [2024] FedCFamC2F 1166.
58. Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95, [37].
59. Queensland Law Society, Professional Standards When Appearing in Court Remotely (Guidance Statement No. 25, 30 October 2024)
60. Queensland Law Society, Artificial Intelligence in Legal Practice (Guidance Statement No. 37, 31 May 2024). 
61. Legal Services Commissioner v McDonald [2024] QCAT 193.
62. [2011] QCAT 126, [10].
63. [2013] QCAT 435.
64. Ibid [15]. 
65. [2023] QCAT 325.
66. Ibid [22].
67. [2005] LPT 5.
68. [2018] QCAT 423.
69. Sir Gerard Brennan, ‘Pillars of Professional Practice: Functions & Standards’ (1987) 61(3) Australian Law Journal 112, [117].
70. R v Szabo [2000] QCA 194. 
71. [2018] QCAT 423, [16].
72. [2021] HCA 29.
73. Queensland Law Society, Acting for Family and Friends (Guidance Statement No. 23, 29 October 2024); Queensland Law Society, Disclosure of third party relationships (Guidance Statement No. 38, 4 September 2024).</sup>

5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which:

5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which: 
  5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law; or
  5.1.2 is likely, to a material degree to:
     5.1.2.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
     5.1.2.2 bring the profession into disrepute.

Fit and proper person to practise law

Rule 5 draws together three essential qualities that a solicitor of good standing and repute commits to. The Law Council of Australia describes this solicitor as ‘a fit and proper person to practise law, advancing and promoting public confidence in the administration of justice, and upholding the reputation and standing of the legal profession’.⁷⁴

Reflecting the common law approach, the prohibitions in rule 5 relate to a solicitor’s conduct during their professional practice and in other aspects of their life. 

The requirement of fitness to practise is enshrined in common law and is central to the disciplinary and practising certificate provisions of the Legal Profession Act 2007.⁷⁵

The primary purpose of disciplinary proceedings is to protect the public and to maintain ‘standards of professional practice’.⁷⁶ In Legal Services Commissioner v Shand, McMurdo JA stated (with whom Morrison JA and Brown J agreed): 

The protection of the public, of course, is a purpose also served by an order which affects an existing or future practising certificate. By an order affecting a practising certificate, the public is immediately protected from the risks to which those who would encounter an unfit person would be exposed. 

The community needs to have confidence that only fit and proper persons are able to practise as lawyers and if that standing, and thereby that confidence, is diminished, the effectiveness of the legal profession, in the service of clients, the courts, and the public is prejudiced. The Court’s Roll of practitioners is an endorsement of the fitness of those who are enrolled.⁷⁷

The crucial question for the disciplinary tribunal is whether the conduct engaged in by the practitioner indicates that the practitioner is no longer a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor.⁷⁸

However, this consideration must have regard to the case-by-case nature and context of the practitioner’s conduct. In Ziems v Prothonotary of the Supreme Court of New South Wales,⁷⁹ Kitto J noted that ‘[i]t is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a [lawyer].’

In Legal Services Commissioner v McDonald, the Tribunal stated:

While consistency and treating like cases alike is one of the tribunal’s stated objects perfect uniformity is unachievable. Past sanctions are not binding and there is no rule that later cases religiously follow earlier ones or that a sanction in one case is some kind of norm to be applied in similar cases.⁸⁰

In Prothonotary of the Supreme Court of NSW v P,⁸¹ the Prothonotary applied to remove from the roll a solicitor who pleaded guilty to and was sentenced to a six-month custodial sentence for importing cocaine. Chief Justice Young developed the following summary of applicable principles:

• The onus is on the regulating agency to show that the solicitor is not a fit and proper person. It is a civil onus.⁸²
• An order striking off the roll should only be made when the probability is that the solicitor is permanently unfit to practise.⁸³
• The fact that the applicant has a conviction for a serious offence is not necessarily a sufficient reason for an order striking that person off the roll.⁸⁴
• The fact of conviction and imprisonment is far from irrelevant and may be regarded as involving a degree of disgrace itself.⁸⁵
• The court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the solicitor should not remain a member of an honourable profession.⁸⁶
• The fact that the solicitor pleaded guilty to the charge will usually be counted in their favour.⁸⁷
• Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civil obligations.⁸⁸
• The concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature.⁸⁹
• The attitude of the professional association is that the application is of considerable significance.
• The question is one of present fitness, not fitness at the time of the crime.⁹⁰

His Honour did not demur⁹¹ from the following ten propositions of mitigation put forward by counsel for the solicitor in that case:

• absence of prior disciplinary record,
• absence of motive for personal enrichment,
• genuine remorse,
• honesty and co-operation with the authorities after detection,
• the offences being unrelated to the practice of law in that the addiction had not impacted on her professional duties and had not resulted in harm to her clients or other people, 
• the shame of having suffered a criminal conviction and the deterrent element,
• the absence of premeditation with respect to the commission of the crime,
• evidence of good character,
• voluntary self-imposed suspension from practice, and
• convincing evidence of rehabilitation.⁹²

Determining whether a lawyer is a fit and proper person requires consideration of the whole position with meticulous care.

In A Solicitor v Council of the Law Society of New South Wales,⁹³ the High Court held that when the solicitor was aware the Society was considering disciplinary action for conduct, frankness required him to inform the Society of the further convictions and sentences for similar offences, even if he regarded them as unjust and hoped they would be set aside on appeal. The High Court also found his failure to inform the Society was professional misconduct. In determining whether a solicitor was a fit and proper person to be a legal practitioner it was held that it was correct to consider the combined significance of the misconduct which was the subject of the first convictions and the separate conduct constituted by the subsequent lack of candour to the Society. However, the High Court held that the Court of Appeal gave insufficient weight to the isolated nature of the admitted offences and the subjective case made on behalf of the solicitor. The Court ordered that the solicitor be suspended for five years.

Conduct 

Conduct that has been relevant to an assessment of the solicitor as unfit to practise includes:

• dishonest, deceitful, or fraudulent conduct, or
• a breach of the criminal law.

Dishonest, deceitful, or fraudulent conduct

Generally, findings of dishonest conduct by a solicitor will be characterised as professional misconduct. As the Tribunal noted in Legal Services Commissioner v Hunter, ‘[h]onesty is an essential and fundamental trait for legal practitioners’.⁹⁴ However, in Attorney-General v Bax, Pincus JA also held that ‘dishonesty, like other forms of misbehaviour, has grades of seriousness’.⁹⁵

The concern is whether the conduct suggests that the practitioner does not possess the expected qualities of honesty needed for the practice of law. As Chief Justice de Jersey stated in an admission case: ‘[l]egal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments’.⁹⁶

Similarly, the Court found in Barristers’ Board v Darveniza: 

Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practises.⁹⁷

A breach of the criminal law 

Convictions for a ‘serious offence’, a ‘tax offence’, or an ‘offence involving dishonesty’ may amount to unsatisfactory professional conduct or professional misconduct.⁹⁸ The seriousness of a breach of the criminal law must call into question the solicitor’s willingness and ability to obey the law.⁹⁹ Chief Justice Warren noted that: 

any suggestion that crimes committed at arm’s length, such as those which involve child pornography, can be considered of lesser seriousness in deciding upon an individual’s fitness to remain on the Roll should be the subject of intense scrutiny.¹⁰⁰

In Legal Services Commissioner v Munt,¹⁰¹ the solicitor had been convicted of trafficking and supplying a dangerous drug for which he was sentenced to three years’ imprisonment wholly suspended for four years. The Tribunal characterised the solicitor’s conduct as professional misconduct but made an order that the solicitor be restrained from obtaining a practising certificate for a period of five years. The circumstances in that case, however, did not involve offences of dishonesty and there was evidence of rehabilitation. 

In contrast, in Legal Services Commissioner v Ioannides,¹⁰² a solicitor was convicted and sentenced for multiple counts of trafficking of methylamphetamine and GHB. Justice Daubney observed:

Whilst the conduct … did not happen in connection with the practice of law, it was conduct by which the respondent committed serious criminal offences. It amounted to protracted criminality which involved the serious offence of trafficking in dangerous drugs, as well as many other offences, including breaches of bail undertakings given to the court. 

The seriousness and persistence of the offending conduct was completely at odds with all norms which the community expects of those engaged in legal practice; and, as noted above, conduct for which there is a conviction for a serious offence is conduct which may be held to constitute professional misconduct. The respondent’s criminal conduct, including, of course, the drug trafficking, undoubtedly demonstrated that, at the time, she was not a fit and proper person to engage in legal practice. By s 419(1)(b) of the LPA, the term ‘professional misconduct’ includes conduct of a legal practitioner ‘whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice’.¹⁰³

In Legal Services Commissioner v SD,¹⁰⁴ two discipline charges arose out of conduct for which he was convicted of a serious offence of common assault–domestic violence. A third disciplinary charge related to the solicitor’s failure to give the Society notification of having been charged with a serious offence under s 57 of the Legal Profession Act. The Tribunal ordered that the practitioner’s name be removed from the roll noting the factors relating to the solicitor’s fitness to practice:

The fact that the Respondent has not at all engaged in respect of this very serious professional matter is itself indicative of a lack of remorse and indeed, a lack of insight into the characteristics which attach to membership of an honourable profession. … Notably, at no time has the Respondent, either in the course of the criminal proceedings or in the course of this discipline application, expressed any insight into the seriousness of his conduct, either at a personal level or, relevantly for today’s purposes, in respect of the implications that this sort of conduct has so far as his professionalism is concerned. The highest that the Respondent could pitch his behaviour was in a submission he made to the QLS under s 68 of the LPA in which he sought to explain why he was and remained a fit and proper person to continue to hold a practising certificate, at which time he advanced arguments that there had been no elements of dishonesty or fraud in the offence, and that the offence was very unlikely to happen again. Casting his submissions in that way indicated that, again, the Respondent had no insight into the very serious personal and professional issues that arise and are evidenced by the conduct which led to his being convicted of the serious offence of common assault–domestic violence.¹⁰⁵

Factors bearing on the seriousness of the breach

If there has been potentially disreputable conduct, the courts will consider: 

• the connection between the conduct and practice of a solicitor, 
• the persistence of the conduct,
• any previous disciplinary proceedings,
• the level of remorse,
• the ‘moral blameworthiness’ of the conduct, and
• any temporary medical condition that contributed to the conduct. 

Each consideration will influence whether the conduct is found to be unsatisfactory professional conduct or professional misconduct.

Connection to practice

Conduct during practice has a ‘much more direct bearing of a man’s fitness to practise than [personal misconduct]’.¹⁰⁶ However, personal misconduct may influence the court’s assessment if the conduct is ‘so connected’ to the practice of law that it could be considered professional misconduct.¹⁰⁷

Persistent conduct

In NSW Bar Association v Evatt,¹⁰⁸ a barrister was found guilty of professional misconduct in that he actively assisted in and facilitated a systematic course of action whereby two solicitors charged extortionate and grossly excessive sums as costs to clients. By continuing to act, Mr Evatt charged fees as a barrister which were excessive and which he knew would be paid from the amounts charged by the solicitors. The Court held that ‘[t]he facts proved and found demonstrated unfitness to be a member of the Bar – not some isolated or passing departure from proper professional standards.’¹⁰⁹

Previous disciplinary proceedings

In Legal Practitioners Conduct Board v Le Poidevin,¹¹⁰ the practitioner had been previously suspended from the right to practise for two years. Whilst suspended the practitioner engaged in practice. The practitioner also ignored statutory notices to respond to the Society. The Tribunal found the practitioner guilty of unprofessional conduct. The Board applied to the Full Court of the Supreme Court of South Australia for the removal of the practitioner from the roll. Chief Justice Doyle said:

The conduct of the defendant absent any explanation suggests that he has no regard at all for his obligation as a practitioner. He is not to be punished twice for the same matter but when the present matters are viewed in the context of the earlier findings of unprofessional conduct it suggests to me the defendant is no longer fit to remain a practitioner of this court.¹¹¹

In Youssef v New South Wales Legal Services Commissioner,¹¹² the solicitor failed to adequately verify the identity of a client before acting on their behalf to lodge a caveat on property. In determining that the conduct constituted unsatisfactory professional conduct, the Tribunal noted the solicitor’s ‘lack of insight into her conduct’.¹¹³

The Tribunal rejected this submission stating that previous disciplinary findings were not ’irrelevant considerations’ and could be considered, having regard to the objectives of the Uniform Law (which are replicated in Legal Profession Act) as 

to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.¹¹⁴

Level of remorse

A lack of remorse over the offence, or ‘lack of ethical insight’, or a failure to understand the error of their ways demonstrates an unfitness to belong to the profession. The failure to understand the impropriety of conduct may be a factor of great importance.¹¹⁵

Moral blameworthiness

In Ziems v Prothonotary of the Supreme Court of NSW,¹¹⁶ the practitioner had been convicted of vehicular manslaughter and sentenced to two years imprisonment with hard labour. Evidence had been led at the trial that at the relevant time the practitioner was under the influence of alcohol. Kitto J observed:

The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister’s continuing a member of his profession. The conviction relates to an isolated occasion… it does not warrant any conclusion as to the man’s general behaviour or inherent qualities… It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance for any professional function.¹¹⁷

Medical conditions

A finding that the solicitor’s misconduct was the result of a medical condition will not avoid the imposition of a disciplinary penalty if the condition is ongoing. This is because the primary issue is the protection of the public and ensuring confidence in the administration of justice.¹¹⁸ However, if the misconduct occurred when the solicitor was affected by a temporary medical condition, this may be taken into consideration because it is fitness to practise at the time of the hearing – not the time of the disciplinary offence – that is relevant.

Compliance with these Rules and the law

Solicitors must comply with the law.¹¹⁹ As officers of the court, lawyers have a duty to assist the public interest in the proper administration of justice and rule of law. 

Where solicitors have been convicted of a breach of law, disciplinary proceedings may result in a finding of professional misconduct.¹²⁰ In the case of Legal Services Commissioner v Beatty, the Tribunal found: 

It is trite to note that a fundamental incident of the privilege of legal practice is an obligation to obey the law. That includes the statutory requirements of the legislation by virtue of which a practitioner has the rights and privileges of practice.¹²¹

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<sup>74. Law Council of Australia 2024 Commentary (n 1) 21.
75. Legal Profession Act (n 5) ss 50(2), 67, 69, sch 2.
76. Harvey v Law Society of NSW (1975) 49 ALJR 362, 364; Legal Services Commissioner v Madden (No 2) [2008] QCA 301, [122].
77. [2018] QCA 66 [53]–[55].
78. Attorney-General v Bax [1999] 2 Qd R 9, 12.
79. (1957) 97 CLR 279, 298.
80. [2018] QCAT 82, [70].
81. [2003] NSWCA 320, [17].
82. Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW).
83. Prothonotary of the Supreme Court of New South Wales v Ritchard (New South Wales Court of Appeal, Kirby P, Mahoney and McHugh JJA, 31 July 1987); NSW Bar Association v Maddocks [1988] NSWCA 102. 
84. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 283.
85. Ibid 288.
86. Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 48.
87. NSW Bar Association v Maddocks [1988] NSWCA 102.
88. NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562.
89. McBride v Walton [1994] NSWCA 199 (Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459.
90. Prothonotary v Del Castillo [2001] NSWCA 75, [71].
91. Ibid [24].
92. Legal Services Commissioner v McKenzie [2021] QCAT 377.
93. (2004) 216 CLR 253, 266.
94. [2024] QCAT 220, [64].
95. [1999] 2 Qd R 9, 20.
96. Re AJG [2004] QCA 88, 3.
97. [2000] QCA 253, [33].
98. Legal Profession Act (n 5) s 420(1).
99. Legal Services Board v McGrath (No 2) [2010] VSC 332, [14]–[16].
100. Ibid [16] (Warren CJ), quoted in Legal Services Commissioner v CBD [2012] QCA 69, [18].
101. [2019] QCAT 160.
102. [2020] QCAT 479.
103. Ibid [13]–[14].
104. [2021] QCAT 204.
105. Ibid [14]–[15]; Legal Services Commissioner v Magin [2023] QCAT 124.
106. Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 290. 
107. A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253.
108. (1968) 117 CLR 177. See also Attorney-General v Bax [1999] 2 Qd R 9.
109. NSW Bar Association v Evatt (1968) 117 CLR 177, 183.
110. (2001) 83 SASR 443.
111. Ibid 446, [18].
112. [2020] NSWCATOD 85.
113. Ibid [84]. 
114. Ibid [96].
115. The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211 [35]; NSW Bar Association v Evatt (1968) 117 CLR 177, 183–184; Legal Services Commissioner v SD [2021] QCAT 204; Legal Services Commissioner v Magill [2023] QCAT 124.
116. (1957) 97 CLR 279.
117. Ibid 299.
118. Legal Practitioners Conduct Board v Phillips (2002) SASR 467; Legal Practitioners Conduct Board v Thomson (2009) SASC 149.
119. See above for rule 2 commentary on the relationship between the ASCR and the law.
120. Legal Services Commissioner v McKenzie [2021] QCAT 377; Legal Services Commissioner v Hunter [2024] QCAT 220.
121. [2019] QCAT 45, [14].</sup>

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.
6.2 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.

Honouring an undertaking

An undertaking is a promise (whether oral or written) to do or refrain from doing something. A solicitor may provide an undertaking:

• to the court, another lawyer, a client, or a third party, and
• on their own or on a client’s behalf.

The professional obligation in rule 6.1 to honour an undertaking reflects the common law.¹²² A prudent solicitor should ensure that they:

• give or confirm their undertakings in writing as expressed in clear, precise, and unambiguous terms (this applies to both the provision of a personal undertaking and an undertaking on behalf of a client),
• give their undertaking in accordance with their client’s instructions, and
• have complete control over their ability to fulfil the undertaking (otherwise it must be subject to conditions).

A solicitor may be held to an undertaking even if the solicitor has erred, made an oversight, circumstances have changed radically, or may cause hardship to the solicitor.¹²³

Personal responsibility 

There is an important distinction between undertakings given by a solicitor personally and undertakings given on behalf of the client. Where an undertaking is given by a solicitor personally, it will bind that solicitor. Whether or not the undertaking binds the solicitor is a question of fact determined with reference to the circumstances. 

In Gorman v Norton,¹²⁴ a case from the 1880s, a writ had been issued for the arrest of the client who was expected to leave NSW the following day. An undertaking was given by his solicitors ‘on behalf of the defendant to pay any sum that may be awarded’¹²⁵ in civil proceedings. Where parties sign an agreement in their own names, they are personally liable unless the document indicates they are contracting as agents. In this case, because the defendant’s future absence would render the undertaking practically worthless to the plaintiff, the undertaking was interpreted as having been given personally by the solicitors.

The case shows it may be insufficient to avoid personal liability by providing an undertaking in the terms: ‘I undertake on behalf of my client’. It is preferable to say: ‘I am instructed that my client undertakes’.¹²⁶

Principles behind undertakings

Where an undertaking is ambiguous, it will generally be construed in favour of the recipient and against the solicitor.

In Auckland Standards Committee 3 of New Zealand Law Society v W,¹²⁷ the following principles of interpretation were said to apply to undertakings:

• being documents of a commercial nature and intended to facilitate the completion of commercial dealings, they should if possible be given commercial significance, and
• undertakings given by solicitors should be construed having regard to their substance and intention, not in a technical or legalistic fashion.¹²⁸

An undertaking given by a solicitor’s employee is an undertaking by the solicitor even if the employee did not have proper authority from the solicitor.¹²⁹ Principal solicitors should consider clear mandates for employees to give undertakings. Similarly, a partner who gives an undertaking binds the firm’s other partners, and the partners are jointly and severally liable for its breach.¹³⁰

Breach of an undertaking

The obligation of a solicitor to perform an undertaking is a fundamental duty. As noted in Legal Services Commissioner v Wrightway Legal:

[i]t is central to dealings with legal practitioners. Because of its importance, noncompliance with the clear terms of an undertaking involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and so amounts to professional misconduct.¹³¹ 

Failing to honour an undertaking may have three consequences:

• contempt of court proceedings,
• disciplinary proceedings, and
• breach of contract.

Contempt of court

Where an undertaking is given to the court, the court has inherent supervisory and summary jurisdiction over solicitors to enforce undertakings.¹³² The jurisdiction is aimed at getting the undertaking honoured, not penalising the solicitor. A solicitor must not violate an undertaking, even if instructed to by a client. In Legal Services Commissioner v Wrightway Legal the Tribunal found that a better course of action for a solicitor instructed to act against an undertaking ‘would have been for him to have applied to either vary the Federal Magistrates Court Order, or…to be released from the undertaking by the Court.’¹³³

Disciplinary proceedings

Breaches of undertakings have been characterised as professional misconduct or unsatisfactory professional conduct depending on the circumstances and seriousness of the breach. Caselaw indicates that disciplinary bodies consider the following factors:

• whether the undertaking was given during practice¹³⁴ or in a personal matter,¹³⁵
• whether the breach is characterised as unintentional,¹³⁶ ‘reckless or foolish,’¹³⁷ or deliberate,¹³⁸ and
• the disciplinary consequences of a breach of undertaking may be mitigated by appropriate remedial action.¹³⁹  

In Legal Services Commissioner v McColm,¹⁴⁰ following an unintentional breach of an undertaking to hold funds in trust, the practitioner restored the deficiency personally and held the funds pending judicial determination of the parties’ entitlements. The solicitor’s conduct was found to fall just short of professional misconduct but still amounted to unsatisfactory professional conduct.

Breach of contract

As Dal Pont notes, ‘[a]n undertaking given to a third party, or to another lawyer, may be enforced by way of civil claim for breach of contract if the requirements of a contract are met’,¹⁴¹ and ‘a lawyer assumes no contractual liability to non-clients unless they undertake a contractual relationship with those persons.¹⁴²

For Queensland practitioners, see Guidance Statement No. 1 – Undertakings.

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<sup>122. National Westminster Finance New Zealand Ltd v Bryant [1989] 1 NZLR 513, 518–19; Countrywide Banking Corporation Ltd v Kingston [1990] 1 NZLR 629, 640 (Wylie J); Re Nelson (1991) 106 ACTR 1, 22 (Higgins and Foster JJ); A Ltd v B Ltd [1996] 1 WLR 665, 674 (Sir John Vinelott). An undertaking should be fulfilled in best faith: Re McDougall’s Application [1982] 1 NZLR 141.
123. Duncan Webb, Ethics, Professional Responsibility and the Lawyer (LexisNexis, 2nd ed, 2006) [15.9.17].
124. (1887) 8 LR 479.
125. Ibid 481.  
126. Law Institute of Victoria, Undertakings (Guideline, 12 October 2022). 
127. [2011] NZLR 117.
128. Ibid 11.
129. Hawkins v Gaden (1925) 37 CLR 183; Legal Services Commissioner v King [2013] QCAT 260.
130. Hirst v Etherington [1999] Lloyd’s Rep PN 938; Burbery Mortgage Finance & Savings Ltd (in receivership) v O’Neill [1995] ANZ ConvR 387.
131. [2015] QCAT 174, [26].
132. Udall v Capri Lighting Ltd [1988] QB 907.
133. Legal Services Commissioner v Wrightway Legal [2015] QCAT 174, [33]. See also Law Council of Australia Commentary 2024 (n 2) 23.
134. Legal Services Commissioner v Zaghini [2005] LPT 4.
135. Legal Services Commissioner v Gregory [2009] LPT 6 [14]–[18]. 
136. Legal Services Commissioner v McColm [2006] LPT 14. 
137. Legal Services Commissioner v Tunn [2004] QCA 412 [9].
138. Legal Services Commissioner v Zaghini [2005] LPT 4 [5].
139. Legal Services Commissioner v McColm [2006] LPT 14.
140. Ibid. 
141. Dal Pont (n 8) [22.10].
142. Ibid [22.15].
143. Queensland Law Society, Undertakings (Guidance Statement No. 1, 28 March 2023).</sup>

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