Rule 34.1.3 of the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) provides that a solicitor must not in any action or communication associated with representing a client use tactics that go beyond legitimate advocacy, and which are primarily designed to embarrass or frustrate another person.
One of the fundamental duties is to act in the best interests of a client in any matter in which we represent the client.1 The responsibility we owe our client does not mean that we should ignore or disregard the rights of third parties. Such third party rights may include restrictions on methods of obtaining evidence from third parties and interfering with the solicitor-client relationship of other practitioners.
This rule can be said to temper overzealousness in representing a client. Although we should act with robustness and dedication to our client’s interests, we are bound by our duty to the administration of justice and, as officers of the court, not to engage in conduct that goes beyond legitimate advocacy and which is primarily designed to embarrass or frustrate another person.2
Evidence gathering may fall within the ambit of ASCR rule 34.1.3. In dealing with an opponent3 in relation to a case, we must not knowingly make a false statement,4 or make a statement recklessly without care as to its accuracy. If we do, then we are required to take all the necessary steps to correct any false statement (whether made consciously or recklessly) that is made by us to an opponent as soon as possible after we become aware that the statement was false.5
Further we must not engage in conduct likely, to a material degree, to be prejudicial to, or diminish the public confidence in, the administration of justice.6
In In re Comfort,7 a lawyer wrote and then published an accusatory letter to another lawyer. The dissemination of the letter was seen by the court as designed to embarrass for no legitimate reason. The decision of Legal Services Commissioner v Orchard8 also illustrates the rule’s application. The judicial member described the material as a ‘scandalous document’ which went ‘beyond the limits of a proper defence’, containing descriptions which attempted to embarrass.9 The tribunal has this year considered an application against a practitioner where the ‘allegations against [x] had no reasonable basis and should never have been made, or should have been withdrawn when his attention was drawn to (section 487 Legal Profession Act 2007 (Qld))’.10 The practitioner’s conduct amounted to professional misconduct.11
ASCR rule 34.1.3 is not limited to litigation and applies generally to our conduct.
1 Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) r 4.1.1.
2 ASCR r 34.1.3.
3 ‘opponent’ is defined in the glossary to the ASCR to mean:
- the practitioner appearing for a party opposed to the client of the solicitor in question, or
- that party, if the party is unrepresented.
4 ASCR r 22.1.
5 ASCR r 22.2.
6 ASCR r 5.1.
7 159 P.3d 1011 (Kan. 2007).
8 [2012] QCAT 583 (‘Orchard’).
9 Orchard [8].
10 Legal Services Commissioner v Jensen [2017] QCAT 148, [20].
11 Ibid [39].