Fundamental duties of solicitors

1. 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.

Commentary

3.1 Duty to court overrides duty to client

The duty to the court is well-established at common law, and has four mutually supporting categories:

• a duty of disclosure to the court;
• a duty not to abuse the court's process;
• a duty not to corrupt the administration of justice; and
• a duty to conduct cases efficiently and expeditiously.¹

It has been said:

"The first three mentioned general duties are derived from the public interest in ensuring that the administration of justice is not subverted or  distorted by dishonest, obstructive, or inefficient practices. The essence of these duties is the requirement for lawyers (within the context of the adversarial system) to act professionally, with scrupulous fairness and integrity and to aid the court in promoting the course of justice. By their nature, these requirements are immutable, but the content of the particular duties that flow therefrom may change over time as litigation practices and social values change".²

The duty to the court prevails to the extent of inconsistency with any other duty, including a solicitor’s duties to the client or others: Giannarelli v Wraith (1988) 165 CLR 543, 555-6 (Mason CJ), 572 (Wilson J). As Lord Reid put it in Rondel v Worsley [1969] 1 AC 191, 227 ('Rondel'):

"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests."

The duty involves 'candour, honesty and fairness': Council of the Queensland Law Society Inc v Wright [2001] QCA, 58 [67]. For example, a solicitor must not mislead the court, make unfounded aspersions against other parties or witnesses or withhold authority or documents unfavourable to the client: Rondel at 227. Solicitors therefore must inform the court of legal authorities that may be unfavourable to their client's case: Glebe Sugar Refining Co Ltd v Greenock Port and Harbours Trustees [1921] SC (HL) 72,74, cited in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, [112].

Duty as officers of court. The ASCR glossary defines 'court' to mean any body described as such; any tribunal exercising judicial or quasi-judicial functions; an investigation or inquiry established or conducted under statute or by a Parliament; and an arbitration or mediation  or any other form of dispute resolution. Accordingly, a solicitor's conduct in mediation is subject to this duty: Legal Services Commissioner v Mullins [2006] LPT 12 and Legal Services Commissioner v Garrett [2009] LPT 12.

The duty derives from the lawyer's special role as an officer of the court: Myers v Elman [1940] AC 282 316-19. A lawyer becomes an officer of the Supreme Court on admission to the legal profession: LPA s 38(1). A similar provision is contained in section 23A LPA (SA), which ensures interstate solicitors practising law in South Australia are officers of the Supreme Court. As McMurdo P noted in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, [67] the duty of candour and fairness is quintessential to the lawyer's role as officer of the court; the court and the public expect and rely upon it, no matter how new or inexperienced the practitioner.

1  David Ipp, 'Lawyers' Duties to the Court' (1998) 114 Legal Quarterly Review 63, 65.

2 Ibid.

1. A solicitor must also:
   1. act in the best interests of a client in any matter in which the solicitor represents the 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;
   4. avoid any compromise to their integrity and professional independence; and
   5. comply with these Rules and the law.

Commentary

These ethical duties restate and reinforce the solicitor's fiduciary and common law duties to the client, and their professional duties to the administration of justice.

4.1.1 Acting in the best interests of the client

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

• The duty to maintain client confidentiality (see Rule 9 below), and
• The duty of loyalty to the client, which includes:

• duties owed to a former or a potential client (see Rule 10 below)
• duties owed to concurrent clients (see Rule 11 & 11A below), and
• the duty to avoid conflict with the solicitor’s own personal interests (see Rule 12 below).

However, these duties are examples of the fundamental principle and give effect to the general duty in specific contexts.

4.1.2 Honesty and courtesy³

The duty of honesty is considered under Rule 5 below. 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: Baker v Legal Services Commissioner [2006] 2 Qd R 249; Legal Services Commissioner v Winning [2008] LPT 13. Courtesy has a 'real power' as explained in Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117, [24]:

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.

Solicitors should not seek 'to win a momentary advantage for their clients without observing the proper courtesies [because it will] invite correction by the court and disapproval of their colleagues': Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, 667.

Examples of lawyers disciplined for discourteous conduct include:

• Legal Services Commissioner v James (LPC 008/06): single use of an expletive ('f@#^') to a client and another prior to the commencement of court.
• Legal Services Commissioner v Johnson (LPC 006/05): insulting a client’s former de facto partner with words to the effect of: 'You are a grotesquely ugly man. I cannot believe that [client’s name] would have been with someone as ugly as you.'
• Legal Services Commissioner v Murrell (LPC 007/05): writing an 'offensive, insulting and acrimonious' letter to a third party in a professional negligence claim.
• Legal Services Commissioner v Cooper [2011] QCAT 209 ('Cooper'): using discourteous, offensive and provocative language in two letters to another solicitor. In Cooper, the solicitor expressed regret and issued an apology to the solicitor and her client. As it was also his first disciplinary charge in 30 years as a solicitor, the breach was held to be unsatisfactory professional conduct. The case was compared to the more serious situations in which professional misconduct was found in Legal Services Commissioner v Winning [2008] LPT 13 which involved repeated offensive or insulting language both in and out of court;
• Legal Profession Complaints Committee v in de Braekt [2013] WASC 124: a solicitor in addition to other charges, made comments to a court security officer critical of his national origin and calling him a 'prick' seven times. The Full Court of the Supreme Court of Western Australia (Martin CJ, McKechnie and Hall JJ) held that discourtesy can undermine the reputation and the standing of the profession and the efficient functioning of the legal system. For this and the other charges the solicitor was struck off.

4.1.3 Competence

Solicitors must deliver legal services competently, diligently and promptly; a professional standard that mirrors the solicitor’s civil obligations in contract and tort. Once a solicitor-client relationship is established, a solicitor's civil law duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of solicitors: Heydon v NRMA Ltd (2000) 51 NSWLR 1, 53 [1 46]. A solicitor is required to act 'in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice'; s 22 Civil Liability Act 2003 (Qld).⁴ See also s 41 Civil Liability Act 1936 (SA). Where a solicitor professes some special skill, competence or expertise then the standard of care 'is that of the ordinary skilled person exercising and professing to have that special skill': Rogers v Whitaker (1992) 175 CLR 479, 487.

Solicitors may also owe a duty of care to non-clients in certain circumstances: see the discussion in Carey v Freehills [2013] FCA 954, [310] – [317].

As to the professional duties, s 418 of the LPA 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 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. Under s 420, a breach of the Rules is “conduct capable of constituting unsatisfactory professional conduct or professional misconduct."

In Legal Services Commissioner v McClelland [2006] LPT 13, 27, a solicitor who had failed in 16 transactions to provide a Lawyer’s Certificate to a buyer as required by s 365B of the Property Agents and Motor Dealers Act 2000 (Qld) was found guilty of unsatisfactory professional conduct. In considering whether such conduct constituted a 'failure to maintain reasonable standards of competence or diligence' pursuant to s 3B(1)(c) of the Queensland Law Society Act 1952 (the predecessor of s 418 of the LPA) de Jersey CJ commented:

"A practitioner must have the wit carefully to read and comprehend a provision like this, designed for the protection of clients in an area in which he substantially practices. The 'failure' referred to in s 3B(1)(c) would not embrace all cases of error but this is substantial enough to fall within its ambit." 

In Legal Services Commissioner v Bone [2013] QCAT 64 a solicitor's conduct, in failing to supervise his articled clerk to ensure full compliance with the former Legal Profession (Solicitors) Rule 2007 Rule 10.1 (which required written disclosure of a charging clause in a will) and charging a fee for care and consideration otherwise than in accordance with the costs agreement, was found not to have the requisite degree of seriousness or substance to constitute unsatisfactory professional conduct. The Tribunal referred to the Chief Justice's observation in Legal Services Commissioner v McClelland and found:

"The question, then, is whether Mr Bone’s failure to supervise his articled clerk in a way which ensured full compliance with r 10 is sufficiently substantial to warrant the conclusion that it constitutes unsatisfactory professional conduct.

Both ss 418 and 420 of the LPA contain flexible tests, such that not every error which a practitioner may make will constitute unsatisfactory professional conduct. Decided cases suggest, rather, that a finding of that kind will usually involve repeated errors or a significant departure from accepted standards of competence. That is not the case here.

This was an error, by an articled clerk, which can in the prevailing circumstances be fairly described as a technical breach of a rule designed to ensure a particular matter is brought to a client’s attention – and, when all the evidence suggests it was.

The Tribunal is not persuaded that this is conduct at the level, or with the requisite degree of seriousness or substance, to which s 418 is directed.

Mr Bone made a mistake, in his practice, involving a combination of an administrative error and a mistake of law. When he came to charge fees referrable to that error the charges rendered were proportionately very moderate. He had compounded his mistake by not observing the missing clause in the costs agreements but, as the Chief Justice observed in the passage cited earlier while practitioners are expected to read and comprehend legislation (and, of course, documents) touching the work they are doing, a failure or oversight will not necessarily constitute unsatisfactory conduct unless it is substantial enough to fall within the ambit of the misbehaviour or misconduct envisaged in s 418.

Again, something worse than relatively minor administrative and legal errors made by an articled clerk will be required before misconduct reaches a level of seriousness at which an adverse disciplinary finding is warranted. That is not the case here, and charge 2 should be dismissed."

Examples of instances of neglect which have been found to constitute unsatisfactory professional conduct include:

• 'a single instance of, in effect, negligence', the failure to consider or advise upon the implications of a statutory provision of which the solicitor admitted he was unaware: Legal Services Commissioner v Rouyanian [2013] QCAT 57.
• Legal Services Commissioner v Coburn [2013] QCAT.

Neglecting to appear in court for a client leading to an adverse order against the client was characterised in the circumstances as unsatisfactory professional conduct.

Scope of engagement. The duty of competence exists once there is an express or implied engagement of the solicitor. The scope of that engagement will depend on ‘the type of transaction, the extent of [the solicitor's] involvement in the transaction, the advice or assistance sought and the expertise of the client'⁵. 

Before agreeing to the engagement, it would be prudent for a solicitor, amongst other things, to clarify the proposed scope of the engagement with respect to at least the following matters:

• the nature and extent of the advice and work the client requires (for example, question whether it extends to giving commercial or taxation advice on a transaction, or merely advice on its legal effect);
• the tasks the client requires of the solicitor;
• any limitations and exclusions from the engagement; and
• the basis for payment of professional costs and outlays.⁶

Though the solicitor should clarify these matters with a prospective client, the duty to advise may exist even if the client does not request it or advice is not proffered by the solicitor, especially if the client lacks experience or is unfamiliar with common legal practices: Littler v Price [2005] 1 Qd R 275, [51]

In Robert Bax and Associates v Cavenham Pty Ltd [2013] 1 Qd R 476 the solicitor argued that he had been engaged only to prepare mortgage documents and arrange for their stamping. The court held that a letter written by the client’s bank manager to the solicitor was evidence of a more extensive engagement than that argued by the solicitor. The court held on the basis of that evidence that the scope of the retainer was to provide advice as to the most effective method to protect the client’s interest in the financing transaction. The retainer extended beyond the mechanical tasks of document preparation. The solicitor could not undertake the retainer ‘without ascertaining the extent of the risk his client wished to assume in the transactions, evaluating the extent of the risks involved in the transactions and advising in that regard’. Further, the duty to advise ‘does not depend on advice or information being specifically sought by the client’. 

A solicitor is not required to take on every matter that presents itself and instructions should only be accepted by a solicitor confident that they have the necessary degree of competence to undertake the matter. Chief Justice de Jersey has noted;

It is plainly of great importance for a practitioner not to take on work beyond his or her capacity, but that should not give rise to undue timidity where the capacity exists. Where the capacity is lacking it is not only potentially negligent, but in my view unethical as well, for the practitioner to act. As said in Vulic v Bilinsky (1983) 2 NSWLR 427, 483:

'… if a solicitor inexperienced and lacking knowledge in the field accepts instructions to act for a person injured at work, he should inform the client of his lack of experience and give the client the alternative to instruct a solicitor who has a degree of experience and expertise in that field. At the very least, if such an inexperienced solicitor wishes to accept those instructions, he should protect himself and his client by seeking advice from Counsel, and this means the furnishing of proper material to Counsel upon which advice might be given.'⁷

Diligence and promptness. Most instances of unsatisfactory professional conduct involve substantial delays or total failure to deliver services to the client, including the filing of documents in court or administrative proceedings.

• Undue neglect and delay in a matter over eleven years, resulting in a personal injury claim becoming statute-barred: Legal Services Commission v Bussa [2005] LPT 005. The solicitor received a public reprimand, $6000 fine and restrictive conditions were imposed on his practising certificate.
• A delay in prosecuting the client’s litigation, giving the client false information about the status of the matter in phone conversations over a period of five months. The solicitor was fined $5000: Legal Services Commissioner v Mackie [2010] QCAT 570.
• The neglect of the client’s affairs over 15 months constituted unsatisfactory professional conduct. Though an isolated incident, the solicitor received a public reprimand and $1000 fine: Legal Services Commissioner v Smith [2011] QCAT 126.
• A solicitor ceased work on his client’s file for almost 27 months. The delay was characterised as unsatisfactory professional conduct. The solicitor received a public reprimand and was ordered to pay $1000 fine: Legal Services Commissioner v Ballantyne [2012] QCAT 591.

Gross or repeated breaches. Professional misconduct may be found for gross or repeated breaches of the Rules. In Legal Services Commissioner v Smith [2011] QCAT 126, [10] (‘Smith’), Wilson J highlighted that ‘[g]ross neglect and delay, particularly if it is part of a pattern, can attract a finding of professional misconduct.’ This is a question of degree in light of the individual circumstances of the case: Re Nelson (1991) 106 ACTR 1. For example:

• A solicitor’s repeated delay in providing the Queensland Law Society with an adequate explanation of complaints tendered against him: Legal Services Commissioner v Williams [2005] LPT 006.
• A solicitor failed over two years to prosecute a criminal compensation claim and to respond promptly to two requests of the Commissioner: Legal Services Commissioner v Bussa [2011] QCAT 388. The solicitor was found guilty of professional misconduct, publicly reprimanded, ordered to pay a $10,000 fine, to compensate his client and to pay the Commissioner’s costs. The solicitor also had to engage a third party to improve his case management systems, with the third party to report to the Commissioner within 12 months. A heavier penalty was imposed in this matter because the solicitor was a repeat offender.⁸

4.1.4 Integrity and professional independence

Independent judgement in the conduct of a client's matter is an aspect of a solicitor's duty to the administration of justice. A lack of objectivity or integrity undermines the justice system. As Sir Gerard Brennan has written:

"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."⁹

Independence and integrity are also aspects of:

• 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);
• legal professional privilege; 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 conduct 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 with the representative of a client’s opponent care should be taken to make appropriate disclosures and obtain informed consent.

4.1.5 Compliance with these Rules and the law

See Rule 2 for commentary on the relationship between the ASCR and the law. 

3 An address by the Honourable Justice Philip McMurdo entitled Civility and Professional Courtesy delivered at the Queensland Law Society Symposium on 21 March 2014.

4 See also s 22(2) Civil Liability Act 2003 (Qld) which states that the defence does not apply if the court considers the peer opinion too irrational or contrary to written law.

5 A Christensen & WD Duncan, Professional Liability and Property Transactions, (The Federation Press, 2004) 181.

6 For further consideration of the requirements of disclosure, please refer to the Queensland Law Society Costs Guide 2014 edition.

7 Chief Justice de Jersey AC, 'Negligence – The Impact of Specialisation', presented at the Specialist Accreditation Conference on 8 April 2005, 5 – 6.

8 See Legal Services Commissioner v Bussa [2011] QCAT 338, [7]-[12].

9 G Brennan "Pillars of Professional Practice: Functions & Standards" (1987) 61 ALJ 112, [117].

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

Commentary

5.1 Fit and Proper Person

Rule 5 has no Queensland equivalent in the previous Legal Profession (Solicitors) Rule 2007.

The requirement of fitness to practise is enshrined in common law and is central to the disciplinary and practising certificate provisions of the LPA.

A Queensland solicitor when applying to the Queensland Law Society for the grant or renewal of a practising certificate is required to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a practising certificate or the question of whether the applicant is a fit and proper person to hold a practising certificate.¹⁰

A solicitor is required to notify and provide an explanation to the Queensland Law Society upon the happening at any time of a ‘show cause event’, being an act of insolvency or conviction for an indictable or tax offence.¹¹

The Society may refuse, amend, suspend or cancel a practising certificate if a solicitor fails to notify and explain a ‘show cause event’ or if the Society does not, following notification and explanation, consider that the solicitor is a fit and proper person to hold or continue to hold a practising certificate.¹²

The primary purpose of disciplinary proceedings is to protect the public and to maintain 'standards of professional practice': Harvey v Law Society of NSW (1975) 49 ALJR 362, 364. The crucial question is whether having regard to the circumstances, the disciplinary tribunal is any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor: Attorney-General v Bax [1999] 2 Qd R 9, 12 (being submissions of PA Keane QC, S-G and RW Campbell) cited with approval in Legal Services Commissioner v Wood [2012] QCAT 185, [9]. As Kitto J said in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298: 

"It 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 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 the Prothonotary applied to remove from the Roll a solicitor who had been charged with and subsequently pleaded guilty to the importation of a quantity of cocaine. The solicitor had been admitted in 1987 and practised until February 2000. She had a drug addiction from about 1994. The addiction was not detected by family, friends or colleagues. She had been described as a competent and honourable person. The solicitor voluntarily ceased to practise in 2000. On pleading guilty she was sentenced to 6 months imprisonment to be released after 3 months on entering into a recognisance for 3 months. At the time of the application she was drug free. The court noted that in these situations the facts must be looked at closely. Young CJ in Equity summarised the principles as follows at [17]:

1. The onus is on the regulating agency to show that the solicitor is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW);
2. an order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practise: Prothonotary v Richard (NSWCA 3.17.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988);
3. the fact that the opponent has a conviction for a serious offence is not necessarily a sufficient reason for an order striking that person off the Roll: Ziems v Prothonotary (1957) 97 CLR 279, 283; 
4. the fact of conviction and imprisonment, is, however, far from irrelevant and may be regarded as involving a degree of disgrace itself. See Ziems case at 288;
5. 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: Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 48;
6. the fact that the solicitor pleaded guilty to the charge will usually be counted in their favour; NSW Bar Association v Maddocks.; 
7. 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: NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562; 
8. 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: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459; 
9. the attitude of the professional association is that the application is of considerable significance; 
10. the question is one of present fitness, not fitness at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75, [71].

His Honour did not demur from the following ten propositions put forward by counsel for the solicitor:

1. absence of prior disciplinary record;
2. absence of motive for personal enrichment;
3. genuine remorse;
4. honesty and co-operation with the authorities after detection;
5. 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;
6. the ignominy of having suffered a criminal conviction and the deterrent element;
7. the absence of premeditation with respect to the commission of the crime;
8. evidence of the good character;
9. voluntary self-imposed suspension from practice; and
10. convincing evidence of rehabilitation.

The solicitor also proffered an undertaking to accept the attachment to any practising certificate of any reasonable conditions to the effect that she undergo regular drug testing and report the results periodically to the Law Society. The court considered that the solicitor was a fit and proper person to remain on the Roll.

Determining whether or not a lawyer is a fit and proper person requires consideration of ‘the whole position with meticulous care’: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253, 266. In this case a solicitor pleaded guilty to four counts of aggravated indecent assault of persons under the age of 16 years. He was convicted and sentenced to 3 months imprisonment. On appeal the sentence was reduced to an order to be of good behaviour for 3 years. Some years later he was subject to further similar charges. The Society notified the solicitor it was considering disciplinary charges with respect to the four admitted offences. Before the disciplinary hearing was held, the solicitor was found guilty of the further charges and sentenced to two years imprisonment. These convictions were quashed on appeal. The Society applied for an order that the solicitor’s name be removed from the Roll on the ground that the conduct which was the subject of the four admitted offences was professional misconduct. The solicitor filed an affidavit in those proceedings disclosing the further convictions and the successful appeal. The Society contended that the solicitor was not a fit and proper person for the further reason that he had failed to disclose to the Society the further pending charges when the solicitor knew that the Society was considering whether disciplinary action should be taken in respect of the original charges. The NSW Court of Appeal found the conduct comprising the four admitted offences and the failure to disclose to the Society the two further convictions at a time that the solicitor was aware that the Society was actively considering whether to take disciplinary action each constituted professional misconduct. The Court of Appeal also found by reason of the combined effect of the misconduct and the nondisclosure, the solicitor was not a fit and proper person to be a legal practitioner. The High Court granted the solicitor special leave to appeal. The High Court, held, inter alia, that when the solicitor was aware the Society was considering disciplinary action for conduct which was the subject of the first convictions, 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, and 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 held that the appropriate order was that the solicitor should be suspended for five years.

In Legal Services Commissioner v Richardson (No. 2) [2009] QLPT 26 one of the charges was that the solicitor obtained certificates of title without his client's instructions, thereby breaching his retainer. Further, he used his powers under an Enduring Power of Attorney dishonestly to obtain the certificates of title thereby breaching his duties under the Powers of Attorney Act 1998 (Qld). The Tribunal found that with respect to this charge the solicitor “acted both improperly and dishonestly in failing to make full disclosure and seek instructions from his clients because he knew that if he did the clients would instruct him not to do what he proposed to do in furtherance of his own interests against the interests of his client [5]. The final charge related to repeated acts of deceit and incompetence by the solicitor with respect to the conduct of civil litigation for clients. The solicitor had made an error in not making note of the date of a directions hearing and failing to inform his clients, he then embarked on a course of concealment. The Tribunal found that these charges of misconduct involved dishonesty and deceitfulness. The solicitor was held to "[lack] the necessary attributes required of a legal practitioner" [11] and his name was ordered to be removed from the Roll.

In Attorney-General v Bax [1999] 2 Qd R 9, 20 Pincus JA held that "dishonesty, like other forms of misbehaviour, has grades of seriousness."

5.1.1 Grounds for finding a breach of Rule 5

In considering potential contraventions of Rule 5, regard may be had to matters that would determine whether a person is a fit and proper person to hold a practising certificate: LPA s 419(2). These include contraventions of the law or any disciplinary orders, failures to pay relevant levies or insurances, or “other matters the Commission thinks are appropriate”: LPA s 46. Dishonest, deceitful, misleading and fraudulent conduct. A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253.¹³ See above for a discussion of this case.

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: LPA s 420(1). The seriousness of a breach of the criminal law must call into question the solicitor’s willingness and ability to obey the law: Legal Services Board v McGrath (No 2) [2010] VSC 332, [14] – [16]. Warren CJ added 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'.¹⁴

Lack of competence. Incompetence that would diminish public confidence in the administration of justice or bring the profession into disrepute may be a breach of Rule 5 as well as Rule 4.1.3. In Legal Practitioners Board v Kerin [2006] SASC 393 the Full Court of the Supreme Court of South Australia had regard to a practitioner’s conduct which included breaching client confidence, acting against the interests of his client, acting against instructions, the sending of threatening and abusive letters to his client, filing a pleading containing defamatory and embarrassing material, inter alia. The court concluded that "The totality of the circumstances… indicates that the practitioner lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibility of a legal practitioner" [28].

Incompetence extends to a medical condition that so impairs a practitioner that they are unable to deliver legal services competently, diligently and promptly. The issue is not one of blame, but the protection of the public.

Factors bearing on the seriousness of the breach. If there has been potentially disreputable conduct, the courts will consider its connection with the practice or responsibilities of a solicitor, its moral blameworthiness, its persistence and the level of remorse. Each will have a bearing on whether a finding of unsatisfactory professional conduct or professional misconduct is made.

Connection to practice. Conduct in the course of practice has a 'much more direct bearing of a man's fitness to practise than [personal misconduct]': Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 290. However, personal misconduct may influence the court's assessment if the conduct is ‘so connected’ to the practice of law as to amount to professional misconduct: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253. 

Lack of remorse. A lack of remorse over the offence, or ‘lack of ethical insight’ into its nature or a failure to understand the error of their ways itself demonstrates their unfitness to belong to the profession. The failure to understand the impropriety of conduct may be a factor of very great importance: The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211, [35]; NSW Bar Association v Evatt (1968) 117 CLR 177, 183-184. A conviction in which there has been disdain for the victims of the crime ‘will raise a serious concern about a practitioner’s professional and moral fitness to remain an officer of the court’: Legal Services Board v McGrath (No 2) [2010] VSC 332.¹⁵ 

Moral blameworthiness. In Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 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. The practitioner had denied this maintaining that he was suffering from shock and concussion as a result of an assault about an hour prior to the accident. 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": at 299.

Persistent conduct. In NSW Bar Association v Evatt (1968) 117 CLR 177 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 and that in so acting he charged fees which were excessive and which he knew would be paid from the amounts so charged by the solicitors. The court held:

"The facts proved and found demonstrated unfitness to be a member of the Bar – not some isolated or passing departure from proper professional standards…" (p183).

See also Attorney-General v Bax [1999] 2 Qd R 9.

Previous disciplinary proceedings. In Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443 the practitioner had been previously suspended from the right to practise for 2 years. Whilst suspended the practitioner engaged in practice without holding a practising certificate. 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. Doyle CJ 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”: at 446.

Medical conditions. A finding that the solicitor's misconduct was the result of a medical condition would not avoid the imposition of a disciplinary penalty if the condition were ongoing because the primary issue is the protection of the public and ensuring confidence in the administration of justice: Legal Practitioners Conduct Board v Phillips (2002) SASR 467; Legal Practitioners Conduct Board v Thomson (2009) SASC 149. However, if the conduct occurred during a period when the solicitor was affected by a temporary medical condition, then that would be taken into account when deciding whether or not the solicitor was fit to practise, because it is fitness to practise at the time of the hearing, not the time of the disciplinary offence, which is relevant.

10 s 50(2) LPA (Qld).

11 s 67 LPA (Qld) and Schedule 2 LPA (Qld). 12 s 69 LPA (Qld).

12 s 69 LPA (Qld).

13 Other examples are: Clough v Queensland Law Society Inc; A-G v Clough [2000] QCA 254; Legal Services Commissioner v Wherry [2009] LPT 22; Legal Services Commissioner v Chadwick [2009] QLPT 16; Legal Services Commissioner v Richardson (No 2) [2009] QLPT 26; Legal Practitioners Conduct Board v Lind [2011] SASCFC 104; Legal Practitioners Board v Kerin [2006] SASC 393; cf Attorney-General and Minister for Justice (Qld) v Priddle [2002] QCA 297.

14 Considered in: Legal Services Commissioner v CBD [2012] QCA 69, [18].

15 See also: The Law Society of South Australia v McKerlie [2008] SASC 222; Law Society of New South Wales v Moulton [1981] 2 NSWLR 736, 740-741, 742-743 (Hope JA, Reynolds JA agreeing), 754 (Hutley JA).

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.

Commentary

An undertaking (whether oral or written) is a promise 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.

6.1 Honouring an undertaking

The professional obligation in Rule 6.1 to honour an undertaking is reflective of the common law: National Westminster Finance New Zealand Ltd v Bryant [1989] 1 NZLR 513, 518-19.¹⁶ A prudent solicitor should ensure that they:

• give or confirm their undertakings in writing, expressed in clear, precise and unambiguous terms (this applies to both 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 or made an oversight or circumstances have changed radically or may cause hardship to the solicitor.¹⁷ 

Personal obligation. There is an important distinction to be drawn 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. An undertaking may be given on behalf of a client. Whether or not the undertaking binds the solicitor is a question of fact and interpretation to be determined in light of the surrounding circumstances. 

Thus in Gorman v Norton (1887) 8 LR 479, where a writ had been issued for the arrest of the client who was expected to leave NSW the following day and not to return, an undertaking was given by his solicitors "on behalf of the defendant to pay any sum that may be awarded" in civil proceedings. Where parties sign an agreement in their own names they are liable upon that agreement, unless it appears on the face of the document that they are only contracting as agents. In this case, the future absence of the defendant would deprive the plaintiff of any practical benefit of an undertaking binding only the defendant and so the undertaking was interpreted as having been given by the solicitors on their own account.

Thus, it may be insufficient to avoid personal liability, to give an undertaking in the terms "I undertake on behalf of my client”. It is preferable to say “I am instructed that my client undertakes…¹⁸

In Auckland Standards Committee 3 of New Zealand Law Society v W [2011]NZLR 117, 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
• undertakings given by solicitors should be construed having regard to their substance and intention, not in a technical or legalistic fashion

where an undertaking is ambiguous, it will generally be construed in favour of the recipient.

An undertaking given by a solicitor's employee is an undertaking by the solicitor, whether or not the employee who gave the undertaking secured proper authority from the solicitor: Hawkins v Gaden (1925) 37 CLR 183.¹⁹ Principal solicitors should therefore 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: Hirst v Etherington [1999] Lloyd’s Rep PN 938; Burbery Mortgage Finance & Savings Ltd (in receivership) v O’Neill [1995] ANZ ConvR 387.

Breach of an undertaking

Failing to honour an undertaking may have three consequences; 

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

For commentary on the general consequences of breaching these Rules, see Rule 2.

Breach of undertaking – contempt of court. Where an undertaking is given to the court, the court has inherent supervisory and summary jurisdiction over solicitors to enforce undertakings: Udall v Capri Lighting Ltd [1988] QB 907. The jurisdiction is aimed at getting the undertaking honoured, not penalising the solicitor.

Breach of undertaking – professional discipline. Breach of undertakings have been characterised as professional misconduct or unsatisfactory professional conduct depending on the circumstances and seriousness of the breach. The case law reveals that disciplinary bodies have had regard to the following factors:

1. Whether the undertaking was given in the course of practice: Legal Services Commissioner v Zaghini [2005] LPT 4, or in a personal matter: Legal Services Commissioner v Gregory [2009] LPT6, [14] – [18].
2. Whether the breach is characterised as unintentional: Legal Services Commissioner v McColm [2006] LPT 14; "reckless or foolish": Legal Services Commissioner v Tunn [2004] QCA 412, [9] or deliberate: Legal Services Commissioner v Zaghini [2005] LPT4, [5].
3. The disciplinary consequences of a breach of undertaking may be mitigated by appropriate remedial action: see Legal Services Commissioner v McColm [2006] LPT 14 where, 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 amount to unsatisfactory professional conduct.

Breach of undertaking – breach of contract. As Dal Pont notes, 'an 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'²⁰ and that 'a lawyer assumes no contractual liability to non-clients unless he or she undertakes a contractual relationship with those persons'.²¹

For Queensland practitioners, refer to Guidance Statement No. 1 – Undertakings

16 See also: 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.

17 D Webb, Ethics, Professional Responsibility and the Lawyer (LexisNexis, 2nd ed, 2006) [15.9.17].

18 Law Institute of Victoria, If I give an undertaking on behalf of my client, am I personally bound by it? <http://www.liv.asn.au/For-Lawyers/Ethics/Common-Ethical-Dilemmas/Undertakings/If-I-give-an-undertaking-on-behalf-of-my-client,-a>.

19 In this case the High Court held that a senior conveyancing clerk in settling a sale transaction on behalf of the solicitors had given an undertaking to satisfy certain requisitions ‘in consideration of settlement’ had personally bound his employer by that undertaking. See also: Legal Services Commissioner v King [2013] QCAT 260.

20 See Dal Pont ‘Lawyers’ Professional Responsibility’ Thomson Reuters 5th ed. 2013 [22.10].

21 Ibid [22.15].