32. Unfounded allegations

1. A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

Commentary

32.1 Unfounded allegations

Section 487 LPA applies to a person who makes a complaint about the conduct of an Australian lawyer or a law practice employee. The person is not liable civilly or criminally or under administrative process for making the complaint. Section 487 LPA provides that merely because the person makes the complaint, gives the notice or otherwise gives information … the person cannot be held to have –

1. breached any code of professional etiquette or ethics; or
2. departed from accepted standards of professional conduct.

Such allegations may only be made by a solicitor in good faith and with supporting evidence. This includes allegations that have been formalised as a complaint to the Legal Services Commissioner. See also Rule 21.4 on any serious allegation during a court process. Lawyers have been disciplined for making unfounded allegations against another, generally opposing, lawyer without reasonable grounds:

• McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45;
• Legal Profession Complaints Committee v in de Braekt [2011] WASAT 1.