Nature and purpose of the rules

This section contains Rules 1 and 2.
1. Application and interpretation
    1. These Rules apply to all solicitors in the jurisdiction, including Australian-registered foreign lawyers acting in the manner of a solicitor.
    2. The definitions that apply in these Rules are set out in the ASCR glossary.


Commentary

1.1 Application

The ASCR commenced in Queensland on 1 June 2012, replacing the Legal Profession (Solicitors) Rules 2007. A table comparing the ASCR and the 2007 Rules is in Appendix A. In providing guidance on the application of the ASCR, the Commentary does not claim to be an exhaustive reference of common law or legislation relevant to the ASCR. 

The ASCR were amended and those amendments came into effect on 1 April 2022 in NSW, Victoria and South Australia (with some minor variations) and later adopted in WA on 1 July 2022.

On the 25 October 2023 the ASCR adopting the majority of the changes referred to in the above paragraph were made by the Queensland Law Society and came into effect on 27 September 2024 by notification under s 225(1) Legal Profession Act 2007(Qld). The Queensland Law Society did not adopt the changes to rules 23.2, 29.7. 29.12.5 and the definitions of “Principal” and “Serious Criminal Offence” in the Glossary and retained the original 2012 wording. The adoption of the new rule 11A was modified slightly.

1.2 Definitions

Refer to the ASCR glossary for the definitions.

2. Purpose and effect of the rules
    1. The purpose of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules.
    2. In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the Rules apply in addition to the common law.
    3. A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct, and may give rise to disciplinary action by the relevant regulatory authority.


Commentary

2.1 Solicitors to observer the highest standards

Solicitors ought to be aware that the ASCR are not the sole touchstone for determining a solicitor’s ethical obligations. Accordingly, reference is made in parts of the Commentary to relevant common law and legislation. The Commentary, in providing guidance on the application of various ethical duties, does not seek to include exhaustive or extensive reference to relevant common law or legislation. 

If the common law or legislation in any jurisdiction prescribes a higher standard than these rules then a solicitor is required by these Rules to comply with the higher standard. Alternatively, if a rule sets a higher standard than the common law or legislation then it is the rule that needs to be observed.

Thus a solicitor is required to observe the higher of the standards required by these Rules and the common law in any instance where there is a difference between the two in any jurisdiction. However, there may be circumstances where it is unclear whether the higher standard is a course of action required by the Rules or one required by the common law. It may be that the rules and the common law simply prescribe different courses of action. Where that is so, Rule 2.2 does not indicate which course the solicitor is best to take.

2.2 Unsatisfactory professional conduct or professional misconduct

Queensland Rules 2.1, 2.2 and 2.3 have no equivalent in the previous Legal Profession (Solicitors) Rule 2007. 

Rules 2.2 and 2.3 also apply in conjunction with ss 418-19 of the LPA. Those sections provide statutory definitions of unsatisfactory professional conduct or professional misconduct for Australian legal practitioners in Queensland involved in disciplinary proceedings. Section 420 of the LPA clarifies that contravention of the Act, previous Act, regulations or legal profession rules is capable of constituting unsatisfactory professional conduct or professional misconduct. This is reinforced by s 7 of the Acts Interpretation Act 1954 (Qld) and s 7 of the Statutory Instruments Act 1992 (Qld).

The definition given in the LPA for unsatisfactory professional conduct involves:

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.

Under the LPA, professional misconduct is more serious than unsatisfactory professional conduct for Australian legal practitioners and includes:

  1. unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  2. conduct of an Australian 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.

These definitions are repeated in the glossary to the ASCR, except that the ASCR refers to the conduct as 'occurring' rather than 'happening'.

2.3 Breach of these rules

It should be noted that although a breach cannot constitute a cause of action, a breach of the rules might be relied on as evidence in a claim for negligence and as such could lead to civil liability. A breach of the rules may also parallel a failure to meet other civil obligations. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, the High Court of Australia noted that Rule 31 of the ASCR paralleled a solicitor’s civil duty to maintain the privilege of an opponent’s documents and to return them to the opponent promptly when they had been disclosed inadvertently.