Australian Solicitors’ Conduct Rules – Law Council of Australia

The Australian Solicitors Conduct Rules (ASCR) were collaboratively developed by all of the state and territory law societies and other constituent professional bodies of the Law Council, as the agreed set of professional conduct rules for all solicitors in Australia.

The ASCR are a statement of solicitors’ professional and ethical obligations as derived from legislation, common law and equity. However, they also express the collective view of the profession about the standards of conduct that members of the profession are expected to maintain.

The ASCR were endorsed by Law Council Directors in June 2011 and have been adopted as the professional conduct rules for solicitors in South Australia, Queensland, New South Wales and Victoria (and shortly Western Australia), Tasmania, and the Australian Capital Territory. The ASCR were adopted in accordance with the processes of each jurisdiction, which vary considerably. The Northern Territory presently maintains its own professional conduct rules.

RULES

Current Rules
The Australian Solicitors Conduct Rules 2011 were updated in March and April 2015. Except for the omission of former Rule 29.12.5, the minor changes did not alter the substance on any of the Rules.

The ASCR were made as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law (Uniform Law) which commenced in Victoria and New South Wales on 1 July 2015.

In the Uniform Law jurisdictions, section 427(2) of the Uniform Law empowers the Law Council to develop proposed Uniform Rules for Legal Practice, Continuing Professional Development and Legal Profession Conduct so far as they apply or relate to solicitors.

2018-2020 Review
The Law Council periodically reviews the ASCR in consultation with its constituent bodies, regulators and other relevant stakeholders. The Law Council’s Professional Ethics Committee oversees these Reviews with the support of the Law Council’s Secretariat.

In 2018, the Law Council began the first comprehensive review of the ASCR since they were first promulgated in June 2011.

A copy of the Law Council’s Consultation Discussion Paper on the Review, dated 1 February 2018, is available here.

In March 2020, Law Council Directors endorsed the recommendations of its Professional Ethics Committee in respect of the Review. The Law Council is now working with the Uniform Law, and other state and territory jurisdictions to implement the revised ASCR in accordance with the processes of those jurisdictions.

One of the issues arising out of the comprehensive 2018-2020 ASCR review was the need to clarify how existing ethical principles relating to avoiding conflicts of interest between current clients, or current and former clients, of a solicitor or law practice may be applied when providing short-term legal assistance services. The Law Council has accordingly proposed a new ethical conduct rule: Rule 11A.

Subsequent to the ASCR Review, further amendments were proposed in respect of Rule 42 (Anti- Discrimination and Harassment). This further review of Rule 42 was a result of the Law Council’s July 2020 National Roundtable Addressing Sexual Harassment and the subsequent consultations informing the Law Council’s National Action Plan to Reduce Sexual Harassment in the Australian legal profession (NAP).

The Law Council is now working with the Uniform Law, state and territory jurisdictions to implement the revised Rule 42 in accordance with the processes of those jurisdictions.

To this end, on 6 April 2021, the Law Council released a Public Consultation Paper on the proposed revisions, and invites comments and submissions by 7 May 2021.

The Australian Solicitors’ Conduct Rules were adopted by the Council of the Law Society of South Australia on 25 July 2011 and were the culmination of work undertaken over a period of two years by the Law Council of Australia and its constituent bodies to develop a single, uniform set of Australian Solicitors’ Conduct Rules. See below for a detailed chronology of the development and implementation process.

Nationally uniform professional conduct rules are an important step towards creating a national legal profession in Australia. Their adoption will ensure that all Australian solicitors are bound by a common set of professional obligations and ethical principles when dealing with their clients, the courts, their fellow legal practitioners and other persons.

It is important to understand the function and purpose of the Australian Solicitors’ Conduct Rules. Firstly, they are not a complete and comprehensive statement of all of the ethical obligations that must be observed by legal practitioners. There are many common law and statutory ethical duties and obligations that legal practitioners must comply with that are not covered by the Rules.

Secondly, the Rules are not laws. That is, a breach of the Rules alone does not result in any penalty or disciplinary action. It is only when a breach of the Rules forms the basis for a finding by the relevant body that the practitioner concerned has committed an act of unsatisfactory or unprofessional conduct that disciplinary action will result.

The Rules simply set a standard of behaviour or conduct that should be observed by practitioners in certain circumstances. They are an accepted measure for the use of practitioners so they can ensure that they act appropriately in the circumstances demonstrated in the Rules, and disciplinary bodies so they can have a baseline against which to compare conduct by a practitioner that fits within the circumstances provided for in the Rules.

From 1 October 2020, the rules governing legal practitioner conduct and certain operations of legal practice in Tasmania are changing. The adoption of the Legal Profession (Solicitors’ Conduct) Rules 2020, provides a national framework for the profession regarding ethical and professional conduct in dealing with clients, the Courts, fellow legal practitioners, regulators and other persons. The Tasmanian profession will now be subject to the same rules of conduct as NSW, Victoria, South Australia, Queensland and the ACT.

The Legal Profession (Solicitors’ Conduct) Rules 2020 will come into effect in Tasmania on 1 October 2020.

The Rules of Practice 1994 have also undergone substantial amendment, with the Rules of Practice Amendment Rules 2020 commencing on 1 October 2020.

https://www.justice.vic.gov.au/justice-system/laws-and-regulation/criminal-law

You must comply with these rules if you are a legal practitioner practising as a solicitor. The purpose of the rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these rules.

The rules set out conditions on:

relations with clients
your duties as a practitioner to the court
advocacy
relations with other practitioners
relations with third parties
legal practice.

Defence Lawyers Melbourne

Source: https://www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-and-ethics/australian-solicitors-conduct-rules

Source 2: https://www.lawsocietysa.asn.au/Public/Publications/Resources/Solicitor_Conduct_Rules.aspx

Source 3: https://www.lpbt.com.au/news_item/legal-profession-solicitors-conduct-rules-2020/