43. Dealing with the regulatory authority

1. Subject only to their duty to the client, a solicitor must be timely, open and frank in their dealings with a regulatory authority.
2. Omitted

Commentary

43.1 Open and frank

Rule 43.1 reinforces the common law duty of a solicitor to inform and assist the disciplinary process where their 'conduct is the subject of an inquiry whether by the court or the committee': Johns v Law Society of New South Wales [1982] 2 NSWLR 1.⁹² The duty has received explicit approval from the Queensland Court of Appeal (Council of the Law Society of Queensland v Whitman (2003) QCA 438), though not yet from the High Court. Its purpose is to protect the public and the proper administration of justice.

Disciplinary proceedings against a solicitor are sui generis: Weaver v Law Society of New South Wales (1979) 25 ALR 359.⁹³ As observed in Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136:

"From the earliest times …, disciplinary proceedings … have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument" (at 141).

92 See also: Malfanti v Legal Profession Disciplinary Tribunal [1993] 1 LPDR 17, 19.

93 See also: Martin v Medical Complaints Tribunal [2006] TASSC 73 [21].