The Australian Solicitors Conduct Rules

Question: Describe about the Australian Solicitors Conduct Rules ? Answer: The Australian Solicitors Conduct Rules are applicable in case of all the solicitor's operating in Australia. The purpose behind the introduction of these rules is to help the solicitor's in acting ethically and also according to the principles of professional conduct that have been provided by the common law as well as these rules. The law provides in this regard that while deciding if a solicitor has been engaged in professional misconduct or unsatisfactory conduct, apart from the common law, these rules also apply (Australian Solicitors Conduct Rule 2012). Any breach of these rules amounts to the professional misconduct for unsatisfactory conduct and as a result, the relevant regulatory authority may take disciplinary action however a third party cannot enforce them (Doulman v ACT Electronic Solutions Pty Limited Anor, 2011). Among the fundamental duties of solicitors, Rule 3 provides that the paramount duty of the solicitors is towards the court and also the administration of justice. This Rule also provides that in case of any inconsistency, such a duty prevails to the extent of such inconsistency. At the same time, Rule 4 provides the other fundamental ethical duties of the solicitors. For example in this regard Rule 4.1 provides that a solicitor is required to act in the best interests of his or her client in any matter in which the client is being represented by the solicitor. It is also required that the solicitor should be courteous and honest while dealing with the matters related with legal practice. Similarly, these roles also provide that legal services should be provided by the solicitor competently and diligently and at the same time, these services should be provided by the solicitor as promptly as may be possible reasonably under the circumstances. In this regard Rule 4.1.4 provides that th e solicitors should not compromise with their integrity and also that there professional independence. Therefore, Rule 4.1.5 provides that the solicitor's should comply with these rules and also the other laws that may be applicable in this regard (Bufalo Corporation Pty Ltd v Lend Lease Primelife Ltd, 2010). The relations of solicitors with their clients have been discussed in Rules 7 to 16. This includes the obligation provided by Rule 8 according to which a solicitor has to follow the proper, lawful and competent instructions of the client. In this regard, the common law presumes that every adult person has the capacity to make its own decisions. However the presumption may be displaced by certain characteristics like old age, mental infirmity, suspicion regarding fraud or undue influence, incapacity or the situation where the client cannot communicate. In this way, while the presumption related with legal capacity is present in the relationship between solicitors and their clients, at the same time it is also necessary that the solicitors should be reasonably satisfied that the client has the mental capacity for giving the instructions. In case the solicitor is not satisfied regarding such mental capacity of the client, the solicitor should not represent or act for such a client. Any failure on the part of the solicitor to be alert regarding the issue of incapacity can result in the liability of the solicitor under negligence (Walker v DAlessandro, 2010). If reasons are present for a solicitor to doubt the capacity of applied to give competent instructions, it may result in complex issues. Where a solicitor is not sure regarding the appropriate response in a particular situation where the capacity of the client to give instructions is in doubt, according to Rule 9.2.3 the solicitor can also seek confidential advice related with the ethical or legal obligations of the solicitor in such a case. At the same time, it is also the duty of the solicitors to use the court process and privileges responsibility. In this regard, Rule 21.2 provides that a solicitor should take care in order to make sure that the decisions made by the solicitor for making allegations or suggestions against any person under privilege can be justified reasonably by the material that is at present available with the solicitor. It is also required that it should be appropriate for the robust advancement of the case of the client on the merits of the case and at the same time, these allegations or suggestions should not be made only with a view to embarrass or harass a person (Pont, 2013). While the Barrister's Rules, 2011 does not introduce any fundamental departure from the ethical rules that were in force earlier but it has introduced certain changes. For example, some entirely new rules have also been introduced by them. An example in this regard can be given of Rule 12 which focuses on the role played by the barristers in administration of justice. The Advocacy Rules have been introduced with a view to maintain equivalent standard in this regard between the bar and the solicitor advocates. In this regard, Rule 27.1 provides that when it is known of it becomes clear that a solicitor may have to give evidence that his material for the determination of the issue in contest, in such a case, the solicitor should not appear as the advocate for that particular client. On the other hand, Rule 27.2 allows the solicitors to continue to act for a client under the circumstances that have been mentioned in Rule 27.1 but not as the advocate of such client unless doing so may re sult in a prejudice for the administration of justice. The paramount duty of the solicitors needs to be kept in mind in this regard. At the same time, a barrister owes certain duties towards the court. For example it is the overriding duty of a barrister towards the court according to which the barrister should act independently and in the interest of administration of justice. It is also the duty of the barrister to not receive or mislead the court knowingly or recklessly (Pont, 2013). At the same time, the best is also required to take all necessary steps to correct themselves if any misleading statement has been made by them. Such steps should be taken as soon as possible after the barrister comes to know regarding the fact that the statement was misleading. These rules also provide that the opponents should be alerted by the barrister and in case it appears to be necessary, the code should be informed if any excess concession made by the opponent during the trial in civil proceedings is against the true position, to the knowledge of the barrister and the barrister believes that a mistake has been made. In the same way, while seeking and interlocutory relief in case of an ex parte application, the barrister is required to disclose all the fat and legal matters to the courts which are within the knowledge of the barrister and are not protected by the privilege of legal profession and reasonable grounds are present for the barrister to believe that it would be in favor of an argument against the grant of such a relief or limiting the terms of such relief. At the same time, barrister also owes certain duties towards the clients. These duties have been mentioned in Rules 37 - 40. Rule 37 provides that the best interests of the client should be protected and promoted by the barrister fearlessly and with best skill and diligence. It is also required that the barrister should inform the clients regarding the alternative is available to fully contested adjudication (Rule 38). The barrister should try to help the client in understanding the issues present in the case and also the possible rights and obligations of the client in a particular case (Rule 39). Rule 40 provides that in case of a client charged with a criminal offense, the barrister should advise the client regarding the benefit that may be provided by any law, procedure or practice in case the client pleads guilty. At the same time, it is also the duty of the barrister to use the court process and privilege responsibly. These duties have been mentioned in rules 59-67. References Australian Solicitors Conduct Rules, 2012 G E Dal Pont, 2013, Lawyers Professional Responsibility, 5th ed. Case Law Doulman v ACT Electronic Solutions Pty Limited Anor [2011] FMCA 232 Bufalo Corporation Pty Ltd v Lend Lease Primelife Ltd [2010] VSC 672 Walker v DAlessandro [2010] VSC 15