What is the rule about communicating with the client of another solicitor?
Rule 33 of the Australian Solicitors Conduct Rules 2012 ('ASCR') states:
33. Communication with another solicitor’s client
33.1 - A solicitor must not deal directly with the client or clients of another practitioner unless:
33.1.1 - the other practitioner has previously consented;
33.1.2 - the solicitor believes on reasonable grounds that:
(i) - the circumstances are so urgent as to require the solicitor to do so; and
(ii) - the dealing would not be unfair to the opponent's client;
33.1.3 - the substance of the dealing is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom; or
33.1.4 - there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with contact.
Often referred to as the ‘no contact rule’, this rule prevents you from circumventing the protection that legal representation provides to a party on the other side of your matter. If permitted direct contact you may be able to secure damaging admissions, or access privileged material, or undermine the other party’s confidence in their lawyer. Also you risk becoming a witness in your own case if there is a dispute about the terms of the communication. See Legal Services Commissioner v Bradshaw  LPT 9 paragraph 26 – a case about a barrister, to whom a similar rule applies.
The rule also reflects the principle of basic courtesy between lawyers.
ASCR Rule 4 details various fundamental ethical duties, including that you be honest and courteous in all dealings in the course of legal practice, and that you avoid any compromise to your integrity and professional independence.
The former Solicitors Rule 2007 had separate provisions depending on whether it was related to a case in court (s.18.4) or some other matter (s.25). The new rule does not.
Where your client instructs another solicitor in your place, the former Solicitors Rule 2007 had a limited exception permitting contact with your (former) client. Section 25.2 stated that you were permitted, after notifying the other solicitor, to communicate with your former client for the purpose of confirming your former client’s instructions and arranging for the orderly transfer of the matter. There is no equivalent rule in the ASCR but this practice should still be permitted. Clearly, this should not be used as an opportunity to disparage the new solicitor or entice the client back.
Where there is an insurer involved, this is now dealt with by Rule 22.4 of the ASCR. This is in the ‘Advocacy and Litigation’ chapter and Rule 22 is headed ‘Communication with Opponents’. The Rule states that you must not confer or deal with any party represented by, or to your knowledge indemnified by an insurer, unless the party and the insurer have signified willingness to that course. This is a significantly simpler provision than the former s.18.5 of the Solicitors Rules.
Where you have been unable to obtain a reply from the other party’s solicitor, this is now dealt with by ASCR Rule 33.1.4. You should give written notice to the other solicitor, that if they do not reply within a stated reasonable period, you intend to communicate directly with their client. You should also indicate the terms of the intended communication with their client. If the other solicitor still fails to reply, you may then proceed with the direct contact provided that you are satisfied that there is a reasonable basis for doing so.
Where the other party is a corporation, the rule applies to its principal officers. Again, see LSC v Bradshaw paragraph 26, (footnote 29).