Compliance with Solicitors’ Conduct Rules and Paramount to the Court - Guidelines

This policy sets out guidelines for lawyers to comply with their paramount duty to the Court contained in the Australian Solicitors’ Conduct Rules (ASCR).

A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty, including duties to a client.

Solicitors have an overriding duty to the Court, over and above their duty to their clients. Sometimes, acting in deference to the paramount duty to the court may require a solicitor to act in a variety of ways which could disadvantage the client, or go against the client’s instructions.

This guideline is intended to assist our solicitors to understand and comply with their duty.

All solicitors employed by Lawpoint must comply with the ASCR and with these guidelines at all times during their employment.

1. Content of the Duties

1.1

Solicitors have a number of duties under their duty to the court:

a duty not to act as the mere mouthpiece for a client;
a duty of candour – of disclosure to the court;
a duty not to corrupt the administration of justice – lawyers cannot assist clients in their wrongdoing;
a duty not to abuse court process – lawyers cannot use the court as a tool for an ulterior motive or improper purpose, such as deliberately delaying proceedings, making baseless allegations, issuing vexatious proceedings, deliberately running a hopeless case etc.
a duty to conduct cases efficiently and expeditiously – lawyers must exercise care, skill and independent judgment in conducting cases, and attempt to resolve cases in a timely manner.

1.2

Solicitors have a personal responsibility to be familiar with and comply with the ASCR at all times.

2. Duty of independence

2.1

A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable (ASCR 19.1).

2.2

A solicitor must not act on instructions from a client which the solicitor knows to be in breach of their other duties (for example instructions that the solicitor knows to be false).

2.3

The duty to the court extends to both acts and omissions. A failure to act may breach the duty, just as much as a positive act.

2.4

It is strongly recommended that solicitors consider whether it is appropriate for them to act for family or friends. In addition to issues of conflict which may arise from personal relationships and familial connections, professional independence can easily be compromised when emotional ties come into play.

2.5

Solicitors are required to disclose to the Principal or Practice Manager all client referrals involving family or friends of the referring solicitor.

2.6

A solicitor must not allow his or her independence to be compromised by personal feelings. Issues of conflict can also arise by virtue of the fact that a practitioner may have a personal interest in the outcome of matters involving family or friends. Both of these factors are red flags and should warn solicitors to refrain from acting for family or friends, as failing in these duties can result in disciplinary action and personal costs orders against the solicitor.

2.7

Solicitors should:

avoid allowing personal loyalties to a client to interfere with a solicitor’s independence. Do not blindly accept instructions without question. Ensure that all instructions are forensically examined;
not allow a client to impede your ability to provide frank and fearless advice. Do not allow a client to pressure you into actioning instructions that are in breach of your professional obligations;
not advocate for the client, as opposed to the legal position. Maintain objectivity to ensure your own effectiveness as an advocate;
not make submissions or express views to a court on any material evidence or issue in the case in terms which convey or appear to convey your personal opinion on the merits of that evidence or issue.

3. Candour

3.1

A solicitor must not deceive or knowingly or recklessly mislead the court (ASCR 19.1).

3.2

If you make a misleading statement to the court (e.g. misquoting a case), you must take all reasonable steps to correct it as soon as you can after becoming aware the statement was misleading.

3.3

Under no circumstances are you to knowingly present false or misleading evidence, conceal material facts, or knowingly submit a false document.

3.4

A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person (ASCR 19.3).

3.5

However, you must not take advantage of the mistake if to do so would obtain for a client a benefit which has no supportable foundation in law or fact (ASCR 30).

3.6

There are also other duties which need to be considered in this scenario, including:

a duty to correct false evidence provided by a client or witness (ASCR 20); and
a positive duty to alert an opponent and inform of an express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation which is to the knowledge of the solicitor contrary to the true position and is believed by the solicitor to have been made by mistake (ASCR 19.12).

4. Duty to assist the court

4.1

Solicitors must research and prepare their cases properly, know the relevant law and cases and keep their sources and knowledge up to date.

4.2

Do not rely on Artificial Intelligence (AI) generated summaries of the law or relevant cases, which are likely to contain errors which could mislead the court and embarrass you and Lawpoint. Take the time to read and familiarise yourself with relevant material so that you are in a position to strongly and competently advocate for your client and assist the court.

4.3

Solicitors also have a duty to clarify any misapprehensions made by the court as to an order that the court is making soon as they become aware of the misapprehension (ASCR 19.11).

4.4

Do not take advantage of an error being made by the court. Bring the error to the court’s attention as soon as you become aware of that error.

5. Duty to disclose the relevant law

5.1

Solicitors must inform the court of any authorities which go against their client’s case, and which the solicitor reasonably believes are on point. This includes any binding authority, any authority decided by an Australian appellate court, and if there is no binding authority, any applicable legislation (ASCR 19.6).

5.2

This obligation persists until final judgment is given (ASCR 19.8).

5.3

Rather than misleading the court or failing to disclose the authority or applicable legislation, critically assess it and determine how, for example, an authority may be distinguished from the present circumstances in a manner which favours the client.

5.4

In some cases, solicitors need to make appropriate concessions in respect of authorities that do not support their client’s position. Do not attempt to mislead the court by doggedly adopting a position which misrepresents any relevant authority.

6. Contrary facts in ex parte applications

6.1

Solicitors have a positive duty to disclose contrary facts in an ex-parte application. This includes matters which:

are within the solicitor’s knowledge;
are not protected by legal professional privilege; and
the solicitor has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client (ASCR 19.4).

7. Duty not to corrupt the administration of justice

Client wrong doing

7.1

If a client or a witness called by the client tells you before judgment that they have lied in court, falsified a document or suppressed material evidence, you must refuse to take any further part in the case unless the client authorises you to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the you to do so, but otherwise you may not inform the court of the lie, falsification or suppression (ASCR 20.1.5).

7.2

If you become aware that of any such matter, you must immediately report that matter to the Principal and seek guidance on the next steps to be taken.

7.3

If a client does not authorise disclosure of the lie, falsity or suppression, you must not inform the court as doing so would be a breach of the ASCR.

Confession of guilt in criminal proceedings

7.4

A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty may continue to act for that client, but only if the client agrees to the following constraints (and not otherwise):

the solicitor must not falsely suggest that some other person committed the offence charged;
the solicitor must not set up an affirmative case inconsistent with the confession;
the solicitor must ensure that the prosecution is put to proof on its case;
the solicitor may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
the solicitor may argue that for some reason of law the client is not guilty of the offence charged;
the solicitor may may argue that for another reason not prohibited by ASCR 20.2.2 or 20.2.3 (falsely suggest some other person committed the offence or set up an affirmative case inconsistent with the confession) the client should not be convicted of the offence charged; and
the solicitor must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

7.5

If a client confesses his or her guilt to you but maintains a plea of not guilty, you must immediately report this to and seek guidance from the Principal.

Intention to disobey a court order

7.6

If a client informs a solicitor that they intend to breach a court order, the solicitor must strongly advise against it, warning of the dangers of disobedience, and must refuse to advise on how to breach the relevant orders.

7.7

A solicitor must not inform the court or another party of the intended breach unless the client has authorised them to do so, or you believe on reasonable grounds that the client’s conduct is a threat to somebody else’s safety (ASCR 20.3).

7.8

If a client informs you of an intention to breach a court order, immediately report this to the Principal before taking any action to report the intended breach, even if the client has authorised you to make disclosure.

Integrity of evidence

7.9

Solicitors must protect the integrity of evidence. This means that they must not influence the evidence of a witness – a solicitor cannot suggest a client gives false evidence, or coach them as to what they should or should not say.

7.10

However, a solicitor can advise a witness tell the truth, or can question the evidence the witness intends to give, including drawing the witness’s attention to any inconsistencies or difficulties in their evidence (ASCR 24).

7.11

It is in fact recommended that all evidence be critically examined and that you test the witnesses version of events, including by drawing the witness’s attention to any inconsistencies or difficulties in their evidence which are likely to be raised in cross examination.

Consulting more than one witness at a time

7.12

Solicitors cannot consult more than one witness at a time, unless the solicitor believes on reasonable grounds that special circumstances justify such a conference, or the conference is as to an undertaking to the court, admissions or concessions of fact, amendments of pleadings, or compromise (ASCR 25).

7.13

Care should be taken not to contaminate one witness’ evidence or recollection of events with another’s.

Communication with witnesses under cross examination

7.14

Solicitors must not confer with any witness during cross examination unless the cross-examiner has consented to same (ASCR 26).

Witnesses generally

7.15

There is no property in a witness. Therefore, a solicitor cannot take any active steps to discourage a witness from speaking with an opposing lawyer but can advise the witness that they do not have to speak to the opponent (ASCR 23).

7.16

Similarly, just because a person may be a potential witness for the opposing side, does not mean that a solicitor should avoid making contact with that witness if the solicitor believes the witness may be of value in their client’s own case.

8. Communications with Judges, Registrars and Associates

8.1

A solicitor must not, outside of an ex parte hearing, communicate with judicial officers or their Associates in the opponent’s absence concerning matters in connection with the proceedings, unless the court has first communicated with the lawyer in such a way as to require their response, and the opponent has consented to the communication (ASCR 22.5).

8.2

The opposing party should always be copied into correspondence. Where possible, communication with a judicial officer should be done with the consent of the other party.

8.3

All communication written to a judge or registrar must occur through their chambers staff (i.e. Associate or Case Manager).

8.4

Before corresponding with the judicial officer, remember:

any necessary communication with the court should be done with the consent of all the parties, in writing (preferably email) and with all parties copied into the communication.
before contacting chambers, you and the other parties (or their legal representative, if they are legally represented) should agree that it is appropriate to contact chambers because the issue cannot be resolved without the judge or registrar. For this purpose, you should always contact the other parties in your case, and any legal representative/s (if represented), before contacting the court, explaining the reasons for the communication.
even if the other party’s consent to the communication has not been received, any email to chambers should include all other parties, or their legal representative/s (if represented). Chambers staff may not respond to your email unless all parties are copied into the correspondence. You should also be aware that a copy of your correspondence could be provided to the other legal representative/s and parties.
unless exceptional circumstances exist, parties and legal representatives should only communicate with chambers staff by email.
all communication with chambers should be courteous and respectful. The Court will not respond to correspondence containing abusive or offensive language.
consider whether any particular Practice Notes apply to corresponding with the court in the particular jurisdiction in which you are acting and comply with the relevant Practice Notes.

9. Public disclosures to the media

9.1

A solicitor must not make public statements, including to the media, that may prejudice a current proceeding or bring the administration of justice into disrepute.

9.2

Statements must not misrepresent the facts or the legal position, nor should they improperly influence the court of public opinion in a way that may impact judicial decision-making.

9.3

Statements must not misrepresent the facts or the legal position, nor should they improperly influence the court of public opinion in a way that may impact judicial decision-making.

10. Discovery duties

10.1

A solicitor must discover all relevant discovery documents which are available.

10.2

Under no circumstances is a solicitor to knowingly fail to discover documents or assist a client to breach discovery obligations or obligations to produce documents under subpoena. In addition to constituting a breach of the ASCR, this may constitute a criminal offence.

10.3

If a person knows a document/thing is likely to be required in evidence in a legal proceeding, and that person destroys, conceals, renders it illegible, undecipherable etc, or expressly or impliedly authorises another person to do so, with the intention of preventing its use as evidence at trial, the person is guilty of an offence (Crimes Act, s. 254).

11. Solicitor’s undertakings

11.1

The honouring of undertakings is a necessary incident of the solicitor’s paramount duty to the court and the administration of justice under the ASCR (Rule 3) and other fundamental duties of honesty and integrity (Rule 4).

11.2

Rule 6 of the ASCR provides: 6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction. 6.2 A solicitor must not seek from another solicitor, or that solicitor’s employee, associate, or agent, undertakings in respect of a matter, that would require the co-operation of a third party who is not party to the undertaking.

11.3

A solicitor is never obliged to give nor to accept an undertaking and careful consideration should be given by the practitioner to the need for an undertaking to be given in the circumstances.

11.4

Where an undertaking is requested of you personally, you should not give that undertaking unless you first consult with the Principal.

11.5

Under no circumstances is a solicitor authorised to offer an undertaking on behalf of the firm. The only person with the authority to provide or authorise an undertaking on behalf of the firm is the Principal.

11.6

The reason for this is that breaches of undertakings have potentially serious disciplinary consequences. Breaches have been characterised as unsatisfactory professional conduct or the more serious professional misconduct, depending on whether the breach is deliberate, reckless or unintentional and whether the breach has been mitigated by appropriate remedial action. Although compliance with all undertakings is crucial, failure to comply with an undertaking to the court, to the Legal Services Commission or the Law Society is especially serious. The breach of an undertaking to the court is contempt, whilst a breach of an undertaking to the Legal Services Commission or the Law Society is not of the same character.

11.7

It is important to consider whether the same objective be accomplished by other means? For example, should the relevant responsibility be assumed instead by the client contractually?

11.8

Undertakings should be reserved for situations where the other party (or their solicitor) properly requires an enforceable assurance that the solicitor or firm will act or refrain from acting, in an important matter, in the way that they have (or their agent has) solemnly undertaken. The other party is relying on the honour of the solicitor.

11.9

An undertaking should never be given where the solicitor is unable to ensure fulfilment and have control in relation to the subject matter.

11.10

For example, consider a request by a solicitor that you give an undertaking to make payment of settlement monies to the other party by 5.00pm the next day.

A solicitor should not give such an undertaking where the settlement funds are not already held in trust and the solicitor is authorised to make payment because fulfilment of the undertaking depends on whether the client pays the funds to the firm and authorises their payment by the deadline;
A solicitor may agree to give the undertaking where the funds are already held in trust and the client has provided an irrevocable authority to pay those funds, such that the solicitor can ensure fulfilment of the undertaking once it is given.

11.11

The fact that performing the undertaking requires the client’s instructions or that the solicitor’s original instructions permitting performance have been withdrawn does not absolve a solicitor of their responsibility, nor does a significant change in circumstances.

11.12

Once given, an undertaking must be observed scrupulously – “regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner”.

11.13

The vital factor is not the use of the word ‘undertaking’ itself. A promise made without use of the word ‘undertaking’ can be construed as such.

11.14

Take care to ensure that an undertaking given by a client is worded to make clear that the promise is intended to bind the client only and is not instead personal to the solicitor and/or the firm.

11.15

When offering an undertaking on behalf of a client, solicitors must use the clear phrase “ “My client [client name] undertakes that they will…”

11.16

If a personal undertaking is provided (with the authorisation of the Principal):

the Principal must approve the precise wording of the undertaking before it is given;
the undertaking may only be given in the form approved by the Principal;
the solicitor must ensure he or she complies strictly with the terms of the undertaking; and
the precise terms of the undertaking must be entered into the individual client file and a copy provided to the Practice Manager for recording purposes.

11.17

Once an undertaking is given, only the recipient or a court of competent jurisdiction can relieve the solicitor of its performance.