This section contains Rules 30-35
30.1 A solicitor must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact.
No taking advantage of error
Rule 30 is aimed at sharp practice. It is unprofessional and unconscionable to take advantage of an obvious error. A solicitor owes a professional responsibility to disclose to the other side any error the opponent has made which would operate to the detriment of the opponent’s client. An attempt to take advantage of the other party’s ‘clerical or arithmetical error’ is ‘just a shabby trick and indubitably unconscionable’ and will produce a result against which equity will give relief.517
The solicitor is under no duty to seek the client’s instructions before informing the opponent of the error. If a solicitor informs a client of an obvious error, the matter should be presented as requiring action rather than as an enquiry into the client’s preferred course.
Should a solicitor take advantage of an obvious error, they may breach their paramount duty to the court and the administration of justice. Neither is it in the client’s best interests. In Tamlura NV v CMS Cameron McKenna,518 a draft share sale agreement erroneously contained a mechanism for valuing the shares that differed from that previously agreed by the parties and that error was corrected by the opposing solicitors during negotiations without consulting with their client and it was the corrected version that was signed, even though retaining the error would have been to their client’s advantage. In a subsequent action for negligence brought by the client of the solicitors who pointed out the error, Mann J found that the solicitors were not obliged to not take advantage of the mistake and were not obliged to contact the client before signing to see if the client wished to do so. If on the other hand the solicitors had taken advantage of the mistake of their own accord this may have resulted in the client becoming involved in a rectification action, imperilled the transaction, or resulted in misleading other shareholders.
Similar cases may lead to a finding of misleading or deceptive conduct, or other negative consequences for the client.
Note that there is an exception for a defence lawyer who has no duty to disclose a client’s previous convictions when the prosecution has failed to do so. This is discussed above under rule 19.10.
Disciplinary consequences
The Law Council of Australia’s 2024 Commentary provides that:
As a general principle, a solicitor’s duties are to the client and to the court. ‘The duty of a legal practitioner is not to his client’s opponent and he is not answerable to his client’s opponent’.520 Thus, as a general principle, a solicitor does not have a duty to remedy deficiencies or errors in an opponent’s case.
However, in Chamberlain v Law Society of the Australian Capital Territory,521 the appellant, a legal practitioner, was found to have committed professional misconduct by deliberately taking advantage of a mistake made by the Deputy Commissioner of Taxation. The practitioner intentionally took advantage of an obvious error (a misplaced decimal point) in a writ issued against him by the Deputy Commissioner and ‘deliberately set in train the events and documents which ... led to the entry of the consent judgment. He knew the Deputy Commissioner had made a mistake and took unfair advantage of it for his own benefit’.522
Black CJ considered the notions of fairness and common decency, and explained the drawing of the line between permissible and impermissible taking of advantage of an opponent’s mistake. His Honour said, at [155]:
Whilst in some circumstances it may be in order to take advantage of a mistake, in other circumstances the attention of the practitioner should be drawn to a mistake or oversight. But, in any event, where there is a mistake that may involve the other practitioner’s client in unnecessary expense or delay the practitioner should not do or say anything to induce or foster that mistake. To induce or foster such a mistake would be detrimental to a relationship characterised by courtesy and fairness that ought to exist between members of the legal profession. A relationship of that nature ... has as its justification not merely in social or ethical mores; it has an additional justification referrable to the public interest, in that courtesy and fairness contribute materially to the effective and expeditious performance of legal work.
517. Deputy Commissioner of Taxation v Chamberlain (1990) 93 ALR 729, 741, cited with approval in Paynter Dixon Queensland Pty Ltd v The Ayr Anzac Memorial Club Inc [2002] QDC 227, 13.
518. [2009] EWHC 538, [168].
519. Law Council of Australia 2024 Commentary (n 1) 111.
520. Holborow v Macdonald Rudder [2002] WASC 265.
521. (1993) 43 FCR 148.
522. Ibid 166.
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31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:
31.1.1 return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.
31.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:
31.2.1 not disclose or use the material, unless otherwise permitted or compelled by law,
31.2.2 notify the opposing solicitor or the other person immediately, and
31.2.3 not read any more of the material.
31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.
Not to use inadvertently disclosed material
Rule 31 is designed to preserve confidential information which may have been accidentally disclosed. A solicitor who mistakenly receives information that they reasonably suspect to be confidential must stop reading it, destroy or return it, and notify the solicitor who sent it. The rule applies to any mistaken disclosure, not only to privileged communications, or to disclosures in discovery or other curial processes. The Law Institute of Victoria’s Inadvertent Disclosure Guidelines give practical advice on the operation of the rule.523
If the receiving solicitor believes that there is a genuine dispute over the ‘confidentiality’ of the material, then the material should be secured, pending resolution of the issues in dispute by agreement or court order.
This rule does not alter the law concerning express or implied waiver of legal professional privilege, see further discussion above for rule 9.2.2.
The High Court of Australia considered the question of inadvertent disclosure in the context of discovery in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.524 In this case, the appellant solicitors claimed that a number of documents had been inadvertently disclosed to the respondent solicitors and were subject to professional privilege. They requested the disclosed documents be returned and that the respondent solicitors provide an undertaking to not use information gained as a result of the inadvertent disclosure. The respondent solicitors disputed their obligation to return the documents and give such an undertaking. The High Court considered a number of issues:
- Waiver: ‘Waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege)’.525 A mistake does not amount to an abandonment of privilege and that any question the respondents had about the appellant’s claims for privilege were dispelled by the letter from the appellant’s solicitors promptly advising of the inadvertent disclosure. The court also said that the issue of waiver should never have been raised.526
- Complexity of the discovery process: Discovery is not intended to affect a person’s ability to maintain confidentiality of documents where the law permits. The Court said that ‘[i]t follows that where a privileged document is inadvertently disclosed, the court should ordinarily permit the correction of the mistake and order the return of the document, if the party receiving the documents refuses to do so’.527
- Professional responsibility: the Court referred to a solicitor’s responsibility in these words:
The question for a party to civil proceedings and its legal representatives is not just whether there is any real benefit to be gained from creating a dispute about whether a mistake in the course of discovery should be corrected. The CPA imposes a positive duty upon a party and its legal representatives to facilitate the CPA’s purposes. Requiring a court to rule upon waiver and the grant of injunctive relief in circumstances such as the present could not be regarded as consistent with that duty.528
A solicitor’s duty should be directed towards assisting:
the court to facilitate the overriding purposes of the CPA [Civil Procedure Act 2005 (NSW)]. It is an example of professional, ethical obligations of practitioners supporting the objectives of the proper administration of justice.529
Consequences
While solicitors receiving confidential information are bound by rule 31, solicitors who have made the inadvertent disclosure may have breached their duty to the client.530 All solicitors should therefore establish systems to avoid the risk of mistaken disclosure. Solicitors should also consider, in the context of disclosure or discovery, the consequences of waiver: express, implied, or imputed.531
In Kingston v State Fire Commission,532 solicitors for the plaintiff briefed counsel to advise on liability, quantum, and evidence in a personal injuries action. The barrister mistakenly returned the brief to the solicitors for the defendant, who, acting upon advice, read the brief, took notes, and made photocopies. The Court held that inadvertent disclosure of the material caused it to lose its privileged status, but this did not mean that the plaintiffs had waived privilege. The confidential status of the material had not been lost. The defendant’s solicitors and counsel were restrained from making any use of the inadvertently disclosed material for the purpose of the action.
Dal Pont discusses further the issues that may arise from the sending of documents between opponents and the need to prevent ‘mining’ of metadata.533
For Queensland practitioners, see Guidance Statement No. 18 – Inadvertent disclosure.534
523. Law Institute of Victoria, Inadvertent Disclosure Guidelines (Guideline, 12 October 2022).
524. [2013] HCA 46. See also Nick Knowlman, ‘Inadvertent Disclosure and your Duty to the Administration of Justice’, Queensland Law Society (Note, 3 December 2013).
525. Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305, 326.
526. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46, [35].
527. Ibid [45].
528. Ibid [64]. The Uniform Civil Procedure Rules 1999 (Qld) are the analogous rules to the New South Wales legislation referred to by the court.
529. Ibid [67].
530. See above for rule 9 commentary about confidentiality.
531. Dal Pont (n 8) [11.245].
532. (1998) 8 Tas R 152.
533. GE Dal Pont, ‘Reading outside the lines’ (2012) 50(1) Law Society Journal 40.
534. Queensland Law Society, Inadvertent disclosure (Guidance Statement No. 18, 20 April 2020).
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32.1 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.
Unfounded allegations
Section 487 of the Legal Profession Act applies to a person who makes a complaint about the conduct of an Australian lawyer or a law practice employee. A person who makes a complaint is protected from civil and criminal liability, whether in court or other administrative proceedings. Section 487 also provides that simply making the complaint, giving the notice, or providing information does not mean the person has violated any professional etiquette or ethical rules, or departed from accepted standards of professional conduct.
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.535 Lawyers have been disciplined for making unfounded allegations against another lawyer, generally opposing, without reasonable grounds.536
535. See above page 86 for rule 21.4 commentary about serious allegations during a court process.
536. McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45; Legal Profession Complaints Committee v in de Braekt [2011] WASAT 1.
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33.1 In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless:
33.1.1 the other practitioner has previously consented;
33.1.2 the solicitor believes on reasonable grounds that:
- the circumstances are so urgent as to require the solicitor to do so; and
- the substance of the communication would not be unfair to the opponent’s client;
33.1.3 the communication 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 the communication.
'No contact' rule
Rule 33 applies where there is:
- another party in a matter (the ‘opposing’ party or client);
- that party, or another party or witness in the matter, is represented by a solicitor in relation to the matter;
- there is the risk of a solicitor ‘dealing’ directly with the other party on behalf of the solicitor’s client in the absence, or without the permission, of the other party’s solicitor.
A solicitor may not communicate with the other party directly in these circumstances, other than where one of the exceptions in Rule 33 applies.
Rule 33 protects the opposing party, as a legal practitioner who directly contacts an opposing party might ‘secure damaging admissions, or access to privileged material, or undermine the opponent’s trust in that person’s lawyer’.537 However, adherence to this Rule may also be of benefit to the solicitor’s own client as ensuring the other party is represented can guard against future claims such as those related to undue influence or unconscionability.
In Re Margetson and Jones, the Chancery noted that it is:
also highly cognisant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing.538
The Law Institute of Victoria provides detailed practice guidance to this rule.539 It is most often invoked when the contact is initiated by the client. If a solicitor is contacted by another solicitor’s client, the solicitor must inform the client that they:
- cannot speak to them about the matter,
- cannot listen to what the client has to say,
- can only communicate through the person’s own solicitor, and
- the solicitor should immediately terminate the conversation and advise the client’s lawyer.
Rationale
The rule is to protect the opposing party. Having made contact, a lawyer could ‘secure damaging admissions, or [gain] access to privileged material, or undermine the opponent’s client’s trust in that person’s lawyer’.540
Social media
A solicitor may also breach this rule by connecting to another solicitor’s client on social media. For example, a solicitor would breach the rule by becoming a ‘friend’ of another solicitor’s client through Facebook with the aim of accessing non-public posts or photographs only available to ‘friends’. Connecting with another solicitor’s client without disclosing the true purpose of the request may also involve a breach of the duty of honesty set out in rule 4.1.2. As to whether a solicitor’s agent (such as an investigator or loss adjustor) may seek to ‘friend’ another solicitor’s client, caution should be exercised.
Dealing with financial institutions when acting for a borrower or debtor
The Law Council of Australia’s 2024 Commentary provides the following guidance:541
Situations arise where a solicitor, (usually) from a legal assistance organisation may wish to make direct contact, on behalf of a legally assisted person, with a financial institution rather than the solicitor representing the institution in a debt recovery matter. Nevertheless, the principle expressed by the rule applies in these situations.
It is noted that many businesses now subscribe to industry-specific self-regulatory codes of conduct, or are otherwise required under law, to provide internal dispute resolution processes, which can be availed of to try to settle disputes before the need arises to contact the legal practitioner representing the business. Internal dispute resolution services are not usually staffed by lawyers, and legal assistance service providers acting for a client are not precluded from contacting these internal dispute resolution services.
Given the ethical principle reflected in Rule 33, the appropriate way of resolving these debt payment matters would appear to be through either consumer legislation; through financial services ombudsman schemes; through the internal debt management and dispute resolution processes of the financial institution or in the terms of engagement between the financial institution and their solicitors.
Exceptions
The Law Council of Australia’s 2024 Commentary provides a summary of exceptions to rule 33.542
Second opinions
Rule 33 as it presently stands, although not expressly dealing with communications relating to the provision of second opinions, would not exclude a client from seeking a second opinion. However, it should be noted that the circumstances in which this occurs, for example outside formally accepting instructions to provide a second opinion on the client’s matter, could raise ethical issues.
Transfer of client files to a new solicitor
Where a client has changed solicitors, it should be noted that Rule 31 would not preclude the former solicitor from contacting the former client at the request of the new solicitor to arrange the orderly transfer of the client’s file to the new solicitor.
Serving documents on a client of another solicitor
Where a solicitor serves a document on a client of another solicitor pursuant to a law or contractual obligation, it is considered that such contact with the client of the other solicitor would not amount to a ‘dealing’ under Rule 33.
Communication between solicitors
It should be noted that, as a matter of professional courtesy, a solicitor, having communicated directly with a client of another solicitor, as permitted under the rule, would notify the other solicitor of that communication.
For Queensland practitioners, see:
- Guidance Statement No.27 Second opinions
- Guidance Statement No. 28 – Applying the ‘no contact rule’ when the other party is an individual
- Guidance Statement No. 29 – Applying the ‘no contact rule’ when the other party is an organisation.543
537. Legal Services Commissioner v Bradshaw [2008] LPT 9, [26].
538. [1897] 2 Ch 314, 318–9.
539. Law Institute of Victoria, 'Communicating with Another Solicitor’s Client Guidelines’ (Guideline, 12 October 2022). The equivalent rule here is rule 25 of the Professional Conduct and Practice Rules 2005 (Vic).
540. Legal Services Commissioner v Bradshaw [2008] LPT 9, [26] (a case on the former Legal Profession (Barristers) Rule 2004 (Qld) r 55).
541. Law Council of Australia 2024 Commentary (n 1) 118.
542. Ibid 119.
543. Queensland Law Society, Second opinions (Guidance Statement No. 27, 13 October 2021); Queensland Law Society, Applying the 'no contact rule’ when the other party is an individual (Guidance Statement No. 28, 13 October 2021); Queensland Law Society, Applying the 'no contact rule’ when the other party is an organisation (Guidance Statement No. 29, 13 October 2021).
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34.1 A solicitor must not in any action or communication associated with representing a client:
34.1.1 make any statement to another person:
- which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and
- which misleads or intimidates the other person,
34.1.2 threaten the institution of a criminal or disciplinary complaint against the other person if a civil liability to the solicitor’s client is not satisfied; or
34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.
34.2 In the conduct or promotion of a solicitor’s practice, the solicitor must not seek instructions for the provision of legal services in a manner likely to oppress or harass a person who, by reason of some recent trauma or injury, or other circumstances, is, or might reasonably be expected to be, at a significant disadvantage in dealing with the solicitor at the time when the instructions are sought.
Exceeding the legitimate assertion of rights
A solicitor should bear rule 34.1.1 in mind at the earliest stages of their involvement, such as in preparing a letter of demand. Any early advantage gained by a bold demand must be balanced to ensure the statements do not overstate the client’s rights or mislead or intimidate the recipient.
Examples of overstepping the mark may include:
- Claiming that the costs of the letter of demand will be recoverable as costs in any proceedings to recover the debt.544
- In Legal Practice Complaints Committee v Segler,545 a solicitor’s letter demanded immediate payment of a judgment debt, notwithstanding that the magistrate had allowed seven days for payment. The letter amounted to unprofessional conduct.
- In Collection House v Taylor,546 a debt collection clerk was found guilty of unconscionable conduct for misrepresenting the extent to the right to collect debts. In Queensland, collection of debts barred by the Limitation of Actions Act 1974 (Qld) must be conducted in a way which does not involve misrepresenting to the debtor the extent of the creditor’s right to collect the debt, nor in a manner which amounts to unconscionable conduct in breach of consumer protection legislation.
The rule is directed at conduct which grossly exceeds the true position. As noted by Beech-Jones J in Provident Capital Ltd v Anderson (No 3):
A legal practitioner does not have to have a subjective belief in the complete accuracy of every assertion they make on a matter of law either in submissions or in correspondence engaged in on behalf of their client. In the ordinary course, it may suffice if the practitioner considers that a relevant assertion on a matter of law is something which is reasonably open on the current state of the law. Of course whether that is so will always depend upon the context.547
The question of whether communication is intimidating or threatening is assessed on the face of the communication. It is not necessary to show that the solicitor intended it to be intimidating or threatening, and it is not necessary to adduce evidence that the person receiving the communication was in fact intimidated or threatened.548
Threatening criminal proceedings
Rule 34.1.2 has received judicial consideration in both civil and disciplinary cases. In Legal Services Commissioner v Sing,549 the issue related to the extent to which ‘a solicitor may ethically go in raising the prospect of recourse to criminal process with a view to encouraging the discharge of civil liability.’ At the time of the disciplinary complaint, this question had not arisen in Queensland ‘for more than a century’.550 It was observed that:
The threat by the letter of 4 April 2006 should be carefully defined. It was to ask the police to investigate the dishonouring of the cheques, an investigation which, if followed through, may or may not have led to a prosecution. It was not actually a threat to launch criminal proceedings were civil satisfaction not made (cf. Coogan [1914] St R Qd 197), or to institute a prosecution (Swanwick [1883] 1 QLJ 117, Chubb [887] 3 QLJ 35). In those cases (as referred to in G N Williams: Harrison’s Law and Conduct of the Legal Profession in Queensland, 2nd ed, Lawyers’ Bookshop Press, 1984, p 40) there were direct threats to institute criminal proceedings absent satisfaction of a civil claim.551
In Legal Services Commissioner v Sing,552 the respondent solicitor and his wife rented out commercial premises to the complainant’s company. Cheques in payment of the bond and first month’s rent were dishonoured, but those amounts were later paid. The respondent then wrote to the complainant ‘driven by frustration’, threatening that if future payments of rent were not made, he would write to the police requesting investigation of the circumstances in which the dishonoured cheques had been issued.553
De Jersey CJ held that in the circumstances there had been no breach of the Queensland Criminal Code554 to the extent that it prohibits soliciting a benefit in return for stifling a prosecution. The letter would therefore have been unobjectionable if written by a non-lawyer.
The solicitor had not made any improper use of his position as a solicitor and the application was dismissed.
The dividing line between legitimate pressure and improper intimidation is difficult to draw, but the following examples may cross this line:
- A threat to institute criminal proceedings if a civil claim is not met.
- Characterisation of a person’s conduct as criminal without a proper basis.
- The use of the solicitor’s professional position to intimidate the addressee. Pressure is not impermissible by itself provided it is carried out with reasonable restraint and in a measured way.
- Threats to make a report to the police or professional body if a person does not discharge their civil legal obligations. It is suggested that a solicitor should err on the side of caution by avoiding any threat of a report to the police or professional body if a person does not discharge their legal obligations.
Tactics to embarrass or frustrate
See above for discussion under rule 28 for conduct that may be of the kind addressed by rule 34.1.3.
The same communication may be found to offend against more than one limb of rule 34.1.555
Claim farming
In addition to rule 34.2, solicitors should bear in mind the prohibition against claim farming. Claim farming involves approaching people and pressuring them into making a claim for compensation. It is an offence for legal practitioners to engage in claim farming in Queensland.556
544. ACCC v Sampson [2011] FCA 1165.
545. [2009] WASAT 91.
546. [2004] VSC 49.
547. Provident Capital Ltd v Anderson (No 3) [2013] NSWSC 705, [36].
548. Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166, [47].
549. [2007] LPT 5, [2].
550. Ibid.
551. Ibid [8].
552. [2007] LPT 4, [2].
553. Ibid [4].
554. Section 130.
555. Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166, 64.
556. Personal Injuries Proceedings Act 2002 (Qld); Legal Services Commission, ‘Claim farming’, Personal Injury and Proceedings Act 2002 (PIPA) (Web Page) <https://www.lsc.qld.gov.au/for-the-profession/personal-injury-and-proceedings-act-2002-2/claim-farming>.
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35.1 If a solicitor instructs a third party on behalf of the client, and the solicitor is not intending to accept personal liability for payment of the third party’s fees, the solicitor must advise the third party in advance.
Contracting with third parties
When a solicitor engages a third party (such as a search agent, doctor, valuer, engineer, or another solicitor) to assist with a client’s matter, the solicitor is responsible for paying the third party’s fees unless they have informed the third party in advance that they will not accept personal liability.
A solicitor who has referred a client to another solicitor should not be considered responsible for the payment of that other solicitor’s fees except where otherwise agreed.