4. Other fundamental ethical duties

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].