On 1 June 2012, the Legal Profession (Solicitors) Rule 2007 ("Solicitors Rule 2007") was replaced by the Australian Solicitors Conduct Rules 2012 ("ASCR"). The ASCR maintains much of the language and substance of the Solicitors Rule 2007.
A step in understanding the new Rules is to compare them to the former Rules. The following table compares each rule in the ASCR to the comparable rules (if any) in the Solicitors Rule 2007.
ASCR Rule Title | ASCR Rule | Comparable Solicitors Rule 2007 | Brief Comment |
| Nature and Purpose of the Rules | |||
| 1 Application and Interpretation | 1.1 | No equivalent Rule (but refer to Object of Rules) | The ASCR is intended to apply to all solicitors within Australia (including Australian-registered foreign lawyers). The Solicitors Rule 2007 applied in part to government legal officers (there is no comparable provision in the ASCR). The Solicitors Rule 2007 also applied to Australian-registered foreign lawyers. |
| 1.2 | No equivalent Rule | The definitions in the ASCR are in the Glossary of Terms. |
2 Purpose and Effect of the Rules | 2.1 | No equivalent Rule | The Solicitors Rule 2007 contained statements of general principle commencing each Chapter. Rules 2, 3 and 4 ASCR are core duties of ethical behaviour for solicitors. |
| 2.2 | No equivalent Rule (but refer to Object of Rules) | The ASCR applies in addition to the common law. | |
| 2.3 | No equivalent Rule | A breach of the ASCR rules is capable of constituting unsatsifactory professional conduct or professional misconduct, but cannot be enforced by a third party. | |
| Fundamental duties of solicitors | |||
| 3 Paramount Duty to the Court and the Administration of Justice | 3.1 | No equivalent Rule (but refer to Object of Rules) | The paramount duty is the duty to the court and the administration of justice. This is a common law duty. |
| 4 Other Fundamental Ethical Duties | 4.1.1 | 1 and 12.1 | Rule 1 Solicitors Rule 2007 required honesty, fairness, competence and diligence. This is comparable to Rule 4.1.1, 4.1.2 and 4.1.3 ASCR. There is no comparable Rule in the ASCR to Rule 2 Solicitors Rule 2007 - that rule dealt with agreeing to act for a client; it is in part now dealt with in Rule 4 ASCR. |
| 4.1.2 | 21 | Rule 21 Solicitors Rule 2007 dealt with communications with other solicitors. Rule 4.1.2 ASCR is broader as it relates to “all dealings in the course of legal practice”. | |
| 4.1.3 | 1, 2 and 12.1 | These Rules are reminders that in our service to a client we are to act competently, diligently and promptly. | |
| 4.1.4 | Refer to Object of Rules | Rules 4.1.4, 4.1.5, 5.1.1 and 5.1.2 ASCR concern the maintenance of high standards of behaviour and professional independence. | |
| 4.1.5 | Refer to Object of Rules | ||
| 5 Dishonest and Disreputable Conduct | 5.1.1 | Refer to Object of Rules and 30 | |
| ... | 5.1.2 | Refer to Object of Rules; 28.5 and 30 | |
| 6 Undertakings | 6.1 | 22.1, 27.1 and 27.3 | Rules 6.1 and 6.2 ASCR are broadly the same as Rules 22 and 27 Solicitors Rule 2007. |
| Relations with clients | |||
| 7 Communication of Advice | 7.1 | 12.2 | Similar – Seeking to assist a client to understand the issues. |
| 7.2 | 12.3 | Similar Similar – Informing a client as to alternate dispute resolution. | |
| 8 Client Instructions | 8.1 | No equivalent Rule | The Rule requires us to follow lawful, proper and competent instructions. |
| 9 Confidentiality | 9.1 | 3 | Rule 9.1 ASCR uses the word “engagement” whilst Rule 3 Solicitors Rule 2007 uses the word “retainer”. Both Rules have similar content. |
| 9.1.1 | 3 | ||
| 9.1.2 | No equivalent Rule | Extends the exception to barristers or third parties engaged by a solicitor’s law practice. | |
| 9.2.1 | 3.1 | Rule 9.2.1 ASCR refers to “express or implicit” authorisation. Rule 3.1 Solicitors Rule 2007 does not. | |
| 9.2.2 | 3.2 | Similar | |
| 9.2.3 | No equivalent Rule | ||
| 9.2.4 | 3.4 | Rule 3.4 Solicitors Rule 2007 refers to belief on reasonable grounds. | |
| 9.2.5 | 3.7 | Similar | |
| 9.2.6 | No equivalent Rule | ||
| 10 Conflicts Concerning Former Clients | 10.1 | 4 | Rule 10 ASCR expressly refers to “informed written consent” and “effective information barriers”, whilst Rule 4 Solicitors Rule 2007 did not. |
| 10.2 | 4 | ||
| 11 Conflict of Duties Concerning Current Clients | 11.1 | 8.2 | Rule 8 Solicitors Rule 2007 sets out general and specific conflict issues. Rule 11 ASCR provides a general rule applicable to all concurrent conflicts. There is no equivalent in the ASCR to Rules 8.5 and 8.6 Solicitors Rule 2007. |
| 11.2 | 8.2 | ||
| 11.3 | 8.3 | Rule 8.3 Solicitors Rule 2007 is more prescriptive. However, Rule 11.3 ASCR requires “disclosure and informed consent”. | |
| 11.4 | No equivalent Rule | Additional requirements to Rule 11.3 ASCR. | |
| 11.5 | 8.3.2 and 8.4 | Rule 8.3.2 Solicitors Rule 2007 states a general requirement to cease acting. Rule 11.5 ASCR is quite exceptional and of limited utility. | |
| 12 Conflict Concerning a Solicitor's Own Interests | 12.1 | 9.1.1 and 9.2 | Similar |
| 12.2 | 9.1.2 | Similar | |
| 12.3 | 11.1 and 11.2 | Rule 11 Solicitors Rule 2007 is more prescriptive. | |
| 12.4.1 | 10.1 | Similar | |
| 12.4.2 | 10.2 | Similar | |
| 12.4.3 | 32.2 | Rule 12.4.3 ASCR requires disclosure, advising that a client may refuse any referral and the need for informed consent from the client. | |
| 12.4.4 | 32.1.1 | Similar but Rule 12.4.4 ASCR requires disclosure of the payment or financial benefit to the client. | |
| 13 Completion or Termination of Engagement | 13.1.1 | 6.1.1 | Similar |
| 13.1.2 | 6.1.2 | Similar but Rule 13.1.3 ASCR refers to “engagement” rather than “retainer”. | |
| 13.1.3 | 6.1.3 | Similar but Rule 13.1.3 ASCR refers to “engagement” rather than “retainer”. | |
| 13.1.4 | No equivalent Rule | ||
| 13.2 | 6.2 | Similar | |
| 13.3 | 6.3 | Similar | |
| 14 Client Documents | 14.1 | 6.3 | New terminology in Rule 14.1 ASCR: “designated responsibility”, a reference to electronic document copies and an “effective lien”. |
| 14.2 | No equivalent Rule | Rules 7.1 and 7.2 Solicitors Rule 2007 are different in context. Rule 14.2 ASCR does not alter the common law requirement that client authorisation to destroy client documents is required. The civil standard must be observed. | |
| 15 Lien over Essential Documents | 15.1 | 7.4 and 23.4 | Similar |
| 16 Charging for Document Storage | 16.1 | No equivalent Rule | |
| Advocacy and litigation | |||
| 17 Independence - Avoidance of Personal Bias | 17.1 | 13.1 | Similar |
| 17.2 | 13.2 | Similar | |
| 17.3 | 13.3 | Similar | |
| 17.4 | 13.5 | Similar | |
| 18 Formality Before the Court | 18.1 | 19.2 | Rule 19.2 Solicitors Rule 2007 refers to courts, referee etc. This is dealt with in the definition of “court” in the Glossary of Terms. |
| 19 Frankness in Court | 19.1 | 14.1 | Rule 19.1 ASCR also refers to recklessly misleading. |
| 19.2 | 14.2 | Similar | |
| 19.3 | 14.3 | Similar | |
| 19.5 | 14.5 | Rule 19.5 ASCR has a wider operation. Note the restriction in Rule 14.5 Solicitors Rule 2007 to the matter which is within the parameters of Rule 14.4.3 Solicitors Rule 2007. | |
| 19.6 | 14.6 | Similar | |
| 19.7 | 14.7 | Similar | |
| 19.8 | 14.8 | Similar | |
| 19.9 | 14.9 | Similar | |
| 19.1 | 14.11 | Similar | |
| 19.12 | No equivalent Rule | ||
| 20 Delinquent or Guilty Clients | 20.1 | 15.1 | Similar |
| 20.2.1 | 15.2.1 | Similar | |
| 20.2.2 | 15.2.2 | Similar but Rule 20.2.2(iv) ASCR uses “and” as a conjunctive rather than “or” as used in Rule 15.2.2(e) Solicitors Rule 2007. | |
| 20.2.3 | No equivalent Rule | ||
| 20.3.1 | 15.3.1 | Similar | |
| 20.3.2 | 15.3.2 | Similar | |
| 20.3.3 | 15.3.3 | Similar | |
| 21 Responsible Use of Court Process and Privilege | 21.1.1 | 16.1.1 | Similar |
| 21.1.2 | 16.1.2 | Similar | |
| 21.1.3 | 16.1.3 | Similar | |
| 21.1.4 | 16.1.4 | Similar | |
| 21.2 | No equivalent Rule | ||
| 21.3 | 16.3 and 16.4.1 | Similar but Rule 21.3 ASCR more extensive. | |
| 21.4 | 16.2 | But Rule 21.4 ASCR does not have an equivalent provision to Rule 16.2.2 Solicitors Rule 2007. | |
| 21.5 | 16.4.2 | Similar | |
| 21.6 | 16.5 | Similar | |
| 21.7 | 16.8 | Similar | |
| 21.8 | No equivalent Rule | ||
| 22 Communication with Opponents | 22.1 | 18.1 | Similar |
| 22.2 | 18.2 | Similar | |
| 22.3 | 18.3 | Similar | |
| 22.4 | 18.5 | Similar but Rule 18.5 Solicitors Rule 2007 more extensive. | |
| 22.5 | 18.6 | Similar | |
| 22.6 | 18.6 | Similar | |
| 22.7 | 18.8 | Similar | |
| 22.8 | No equivalent Rule | ||
| 23 Opposition Access to Witnesses | 23.1 | 17.7 | Similar |
| 23.2 | 17.8 | Similar | |
| 24 Integrity of Evidence - Influencing Evidence | 24.1.1 | 17.1 | Similar |
| 24.1.2 | 17.2 | Similar but does not cover the same ground as Rule 24.1.2 ASCR. | |
| 24.2 | 17.3 | Similar | |
| 25 Integrity of Evidence - Two Witnesses Together | 25.1 | 17.4 | Similar |
| 25.2 | 17.5 | Similar | |
| 26 Communication with Witnesses under Cross-Examination | 26.1 | 17.6 | Similar |
| 27 Solicitor as Material Witness in Client's Case | 27.1 | 13.4 | Rules 27.1 ASCR refers to the solicitor appearing as advocate for the client in the hearing. Rule 13.4 Solicitors Rule 2007 was not so limited. |
| 27.2 | No equivalent Rule | ||
| 28 Public Comment During Current Proceedings | 28.1 | 19.1 | Similar |
| 29 Prosecutor's Duties | 29.1 | No equivalent Rule | Rule 20 Solicitors Rule 2007 incorporated State and Commonwealth prosecution guidelines. |
| 29.2 | No equivalent Rule | ||
| 29.3 | No equivalent Rule | ||
| 29.4 | No equivalent Rule | ||
| 29.5 | No equivalent Rule | ||
| 29.6 | No equivalent Rule | ||
| 29.7 | No equivalent Rule | ||
| 29.8 | No equivalent Rule | ||
| 29.10 | No equivalent Rule | ||
| 29.11 | No equivalent Rule | ||
| 29.12 | No equivalent Rule | ||
| 29.13 | No equivalent Rule | ||
| Relations with other solicitors | |||
| 30 Another Solicitor or Other Person's Error | 30.1 | No equivalent Rule | |
| 31 Inadvertent Disclosure | 31.1 | No equivalent Rule | |
| 31.2 | No equivalent Rule | ||
| 31.3 | No equivalent Rule | ||
| 32 Unfounded Allegations | 32.1 | No equivalent Rule | |
| 33 Communication with Another Solicitor's Client | 33.1 | 18.4 and 25 | Rule 31.1 ASCR covers all communication. Rule 18.4 Solicitors Rule 2007 dealt with communicating in litigation and Rule 25 Solicitors Rule 2007 was non-litigation. Rule 25.2 Solicitors Rule 2007 has no equivalent in Rule 33 ASCR. |
| Relations with other persons | |||
| 34 Dealing with Other Persons | 34.1.1 | 28.2 | Similar |
| 34.1.2 | 28.3 | Similar | |
| 34.1.3 | No equivalent Rule | ||
| 34.2 | 32.1.2 | Similar | |
| 35 Contracting with Third Parties | 35.1 | 26 | Similar |
| Law practice management | |||
| 36 Advertising | 36.1 | 36.1, 36.2 and 36.3 | Similar |
| 36.2 | 36.4 | The ASCR has no equivalent to Rule 36.5 Solicitors Rule 2007. | |
| 37 Supervision of Legal Services | 37.1 | 34 and 37 | Rule 34 Solicitors Rule 2007 is more widely drawn. Note Rule 37.1 ASCR refers to a solicitor with “designated responsibility”. |
| 38 Returning Judicial Officers | 38.1 | No equivalent Rule | |
| 39 Sharing Premises | 39.1 | 35 and 31 | Rule 39.1 ASCR is less prescriptive. |
| 40 Sharing Receipts | 40.1 | 33 | Rule 40.1 ASCR does not have a similar sub-rule as in Rule 33.3 Solicitors Rule 2007. |
| 41 Mortgage Financing and Managed Investments | 41.1 | 38 | Similar |
| 42 Anti-Discrimination and Harassment | 42.1 | No equivalent Rule | |
| 43 Dealing with the Regulatory Authority | 43.1 | No equivalent Rule | |
| 43.2 | No equivalent Rule | ||
ASCR Term | Comparable Solicitors Rule 2007 | Brief Comment |
| "associate" | Different | The definition of “associate” in the ASCR is more widely drawn than the definition in the Solicitors Rule 2007. |
| "associated entity" | No equivalent term | |
| "Australian legal practitioner" | No equivalent term | |
| "Australian practising certificate" | No equivalent term | |
| "Australian-registered foreign lawyer" | Similar | |
| "Australian roll" | No equivalent term | |
| "case" | Similar | |
| "client" | Similar | |
| "client documents" | Different | See Rule 7.5 Solicitors Rule 2007. |
| "compromise" | Similar | |
| "corporate solicitor" | No equivalent term | |
| "costs" | Similar | Refer to “legal costs” in Solicitors Rule 2007. |
| "court" | Similar | |
| "current proceedings" | Similar | |
| "discrimination" | No equivalent term | |
| "disqualified person" | No equivalent term | |
| "engagement" | No equivalent term | |
| "employee" | No equivalent term | |
| "employer" | No equivalent term | |
| "former client" | No equivalent term | |
| "immediate family" | Similar | |
| "instructing solicitor" | Similar | |
| "insurance company" | Similar | |
| "law practice" | No equivalent term | |
| "legal costs" | No equivalent term | |
| "legal profession legislation" | No equivalent term | |
| "legal services" | Different | Different from Solicitors Rule 2007. |
| "managed investment scheme" | Similar | |
| "matter" | Similar | Under Solicitors Rule 2007, reference is made to “preparation of a document” or “submission”. |
| "mortgage financing" | Similar | |
| "multi-disciplinary partnership" | No equivalent term | |
| "opponent" | Similar | |
| "order" | Similar | |
| "party" | No equivalent term | |
| "practitioner" | No equivalent term | |
| "principal" | No equivalent term | |
| "professional misconduct" | No equivalent term | |
| "prosecutor" | Similar | But in ASCR reference is to a “solicitor” not “Australian lawyer”. |
| "regulatory authority" | No equivalent term | |
| "serious criminal offence" | No equivalent term | |
| "sexual harassment" | No equivalent term | |
| "solicitor" | Different | Under Solicitors Rule 2007 reference was to the Legal Profession Act 2007, Schedule 2. |
| "solicitor with designated responsibility" | No equivalent term | |
| "substantial benefit" | Similar | See Rule 10.3 Solicitors Rule 2007. |
| "trustee company" | No equivalent term | |
| "unsatisfactory professional conduct" | No equivalent term | |
| "workplace bullying" | No equivalent term |