As a service to members, the QLS Ethics Centre offers Non-Binding Ethics Rulings on disputes between Australian legal practitioners (at least one of whom is a QLS member), or their practices, over ethical matters.
To assist legal practitioners on matters of an ethical nature, the QLS Ethics Committee may, upon request, provide a Non-Binding Ethics Ruling.
A Non-Binding Ethics Ruling is to provide guidance to practitioners where there is a dispute between two Australian legal practitioners (at least one of whom is a QLS member), or their respective law practices, regarding an ethical issue. The process is not intended to replace guidance that may already be available to individual practitioners through the QLS Ethics Centre or through QLS Senior Counsellors. Nor is it intended to provide rulings on ethical disputes between legal practitioners and their clients. The QLS Ethics Committee is not a Court or Tribunal. Therefore, it is unable to provide binding rulings or determine questions of fact. Further, it is unable to provide legal advice. Rather, its role is to provide non-binding rulings in disputes between legal practitioners or legal practices on ethical questions.
All inquiries to the QLS Ethics and Practice Centre, the Principal Ethics and Practice Counsel and the QLS Ethics Committee are confidential. The deliberations of the QLS Ethics Committee and its Sub-Committees are also strictly confidential and apart from the Ruling, will not be disclosed. Because they are also intended to serve an educative function, it is anticipated that the Non-Binding Ethics Rulings will be published on the QLS Ethics Website after they have been de-identified. By agreeing to a Non-Binding Ethics Ruling, the legal practitioners involved will consent to the Ruling being published on the QLS Ethics Website after it has been appropriately de-identified.
This service is designed to encourage a non-adversarial approach to the amicable resolution of disputes of an ethical nature, in a timely and confidential manner. While the ruling is non-binding, it nevertheless aims to reflect the contemporary views of a wide cross-section of the profession who comprise the QLS Ethics Committee.
To provide an efficient and effective service, the QLS Ethics Committee has established a permanent standing Sub-Committee of its members, the Non-Binding Ethics Rulings Sub-Committee (Sub-Committee), which is responsible for driving the process of considering and determining the questions which are referred. The Sub-Committee has established a protocol for dealing with matters referred to it. While the process may differ slightly between individual matters, the general approach is broadly described below.
Within one business day of a matter being referred to the Principal Ethics and Practice Counsel, the Principal will:
- determine whether the matter is appropriate to be referred to the QLS Ethics Committee for a Non-Binding Ethics Ruling; and
- contact the other practitioner to the dispute to ascertain whether the practitioner is agreeable to the referral of the matter to the QLS Ethics Committee for a Non-Binding Ethics Ruling.
If the legal practitioners agree to the referral of the matter to the QLS Ethics Committee for a Non-Binding Ethics Ruling, the Principal Ethics and Practice Counsel will write to the legal practitioners to confirm that it will be sent for a Non-Binding Ethics Ruling and requesting the legal practitioners to the dispute to provide the material referred to in paragraphs 2.4 to 2.6 within three business days. The Principal Ethics and Practice Counsel will also indicate the expected time frame within which a ruling is expected.
Within three business days of receipt of the material from the parties, the Principal Ethics and Practice Counsel will deliver a brief of material to members of the Sub-Committee.
The Sub-Committee will initially discuss and consider the questions raised, with a view to preparing a draft ruling, which will in turn be considered by the full QLS Ethics Committee. After consideration by the full QLS Ethics Committee, the ruling will be finalised, usually within 15 business days of the delivery of the brief to the Sub-Committee.
Requesting a Non-Binding Ethics Ruling
In order to request a Non-Binding Ethics Ruling, legal practitioners must contact the Principal Ethics and Practice Counsel in the first instance. The Principal Ethics and Practice Counsel will discuss the matter with the legal practitioner and will determine whether it is an appropriate matter to be referred to the QLS Ethics Committee for a Non-Binding Ethics Ruling, or whether it can be dealt with by more appropriate or convenient means (such as by the QLS Ethics Centre). The Principal Ethics and Practice Counsel will also ascertain whether the other practitioner to the dispute is amenable to the referral of the matter to the QLS Ethics Committee for a Non-Binding Ethics Ruling. All communication with the referring legal practitioners and the QLS Ethics Committee will be via the Principal Ethics and Practice Counsel. The members of the QLS Ethics Committee will not communicate with the referring legal practitioners directly.
Where a matter is to be referred to the QLS Ethics Committee for a Non-Binding Ethics Ruling, the legal practitioners involved are to provide the following material:
- an agreed statement of facts; a statement as to what (if any) factual matters are in dispute, and what each party contends are those matters;
- a short agreed description of the nature of the dispute and the question(s) to be addressed;
- an agreed bundle of relevant supporting documentation; and
- other supporting documents (if any) that each party considers relevant to the dispute.
Supporting documentation may include relevant:
- correspondence between the parties involved;
- court orders or undertakings; and
- file notes or memoranda.
In addition to the above, each legal practitioner is to provide their submissions as to what they contend to be the appropriate ethical position and the answers to the questions to be addressed.
As the QLS Ethics Committee has limited time to read and deliberate each matter, legal practitioners are encouraged to ensure that only documents that are strictly relevant to the dispute should be provided; excessive documentation may delay the Non-Binding Ethics Ruling process. As a “general rule” and without intending to be prescriptive, it is anticipated that the bundle of documents provided to the Committee would not exceed more than 10 to 15 documents.
Timing for a Non-Binding Ethics Ruling
Where a matter is referred to the QLS Ethics Committee for a Non-Binding Ethics Ruling, the QLS Ethics Committee will endeavour to provide a ruling within 20 to 25 business days of the initial referral to the Principal Ethics and Practice Counsel. The QLS Ethics Committee, however, reserves the right to extend the time for the delivery of a ruling, particularly in circumstances where further information or documentation is requested from the referring legal practitioners. Where the QLS Ethics Committee forms the view that it will not be able to deliver a Non-Binding Ethics Ruling within 20 to 25 business days, the Principal Ethics and Practice Counsel will inform the referring legal practitioners as soon as practicable. The QLS Ethics Committee has the discretion to deliver a Non-Binding Ethics Ruling in a shorter timeframe where the referring legal practitioners have demonstrated that there is a genuine need for urgency.