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The Australian Solicitors Conduct Rules

An Introduction

Reid Mortensen

School of Law and Justice


The Australian Solicitors Conduct Rules – An Introduction

The development of lawyers’ conduct codes

The status of the ASCR

The ASCR’s relationship with the common law

The role of the ASCR in professional discipline

Fragmentation and disagreement


The Australian Solicitors Conduct Rules – An Introduction

The development of lawyers’ conduct codes

The status of the ASCR




All views expressed are Reid Mortensen’s own, and cannot necessarily be taken to represent the views of the Queensland

Law Society or its Ethics Committee


The development of lawyers’ conduct codes Three periods

2003-2013 Model Laws project (Law Council of Australia)

• Legislation: Model Laws (1st ed, 2004; 2nd ed, 2006) • Conduct rules: Model Rules



2003-2013 Model Laws project

2009-2012 National Law project

• Legislation: Legal Profession National Law (Federal Government Taskforce)

• Conduct rules:

• Australian Solicitors Conduct Rules 2011 (Law Council) • Australian Barristers Conduct Rules 2011 (Australian Bar Association)



2003-2013 Model Laws project

2009-2012 National Law project

2013-2012 Uniform Law project

• Legislation: Legal Profession Uniform Law (NSW and Victorian Governments)

• Conduct rules:

• Uniform Australian Solicitors Conduct Rules 2015 (Law Council) • Uniform Australian Barristers Conduct Rules 2015 (Australian Bar Association)


The development of lawyers’ conduct codes Queensland

2003 Legal Profession Act (Model Laws project)

2004 Legal Profession Act (Model Laws project) Legal Profession (Barristers) Rule (Model Laws project)

2007 Legal Profession Act (Model Laws project) Legal Profession (Solicitors) Rule (Model Rules project)

2012 Australian Solicitors Conduct Rules (National Law project)


The status of the ASCR Cf the Legal Profession (Solicitors) Rule 2007 (Qld),

made by Governor-in-Council under s 215 Legal Profession Act 2004 (Qld)

The ASCR became professional conduct rules in 2012 by

notification under s 225 Legal Profession Act 2007 (Qld).

Uncertain status of conduct rules under the 2007 Act – the notice is ‘subordinate legislation’: s 225(2), but the ASCR themselves may not be.


The status of the ASCR The ASCR ‘are binding on Australian legal practitioners

… and government legal officers to whom they apply’: s 227(1)

The ASCR apply to solicitors: ASCR, r 1.1 The ASCR only apply to government legal officers who

hold a solicitor’s practising certificate: s 229 Legal Profession Act 2007 (Qld); s 23 Legal Profession Regulation 2007 (Qld)

This does not include Legal Aid Queensland lawyers: s 5 Legal Profession Regulation 2007 (Qld)


The status of the ASCR If the ASCR are not subordinate legislation (although

binding) – they cannot change the law



ASCR, r 2.2: In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the Rules apply in addition to the common law.


The ASCR’s relationship with the common law The ASCR often deal with regulatory issues that

are not addressed by the common law Eg, ASCR, rr 36-43 (law practice

management)

Areas of incompatibility –

ASCR, rule 11.4 (concurrent conflicts) ASCR, rule 12.4 (drawing wills) ASCR, rule 14.2 (destruction of documents)

What happens if a solicitor has met the standard of the ASCR, but not the common law?



Legal Profession Act 2007 (Qld), s 227(2): Failure to comply with legal profession rules is capable of constituting unsatisfactory professional conduct or professional misconduct. ASCR, r 2.3: A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct, and may give rise to disciplinary action by the relevant regulatory authority, but cannot be enforced by a third party.


The role of the ASCR in professional discipline Legal Profession Act 2007 (Qld), s 418: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Legal Profession Act 2007 (Qld), s 419(1): Professional misconduct includes: (a) unsatisfactory professional conduct … if the conduct involves a substantial or consistent failure to reach or keep a standard of competence or diligence; and (b) conduct .. that would … justify a finding that the practitioner is not a fit and proper person to engage in legal practice.



Presume that the ASCR set a professional ethical standard, and presume that failure to comply is – at the least – unsatisfactory professional conduct

Rare cases where breach can be regarded as satisfactory

conduct – or even laudable

Bar Association of Queensland, Report to the Legal Services Commissioner - Biddle and Keelty v Keim, 17 December 2007 But don’t count on it!



A recent example –

Rosen v Legal Services Commissioner [2016] QCA 190

Discipline application for breach of Legal Profession (Solicitors) Rule 2007 (Qld), r 4 (see now ASCR, r 10) Also understood the law by reference to Fordham v Legal

Practitioners’ Complaints Committee (1997) 18 WAR 467 and civil liability cases of –

• Clark Boyce v Mouat [1994] 1 AC 428 • Farrington v Rowe McBride and Partners [1985] 1 NZLR

83 • Mallesons Stephen Jaques v KPMG Peat Marwick (1990)

4 WAR 357.



Three versions of the ASCR

2011: The standard/Law Council approved ASCR




2011: The standard/Law Council approved ASCR

2011: South Australian version of ASCR adopted – added local rules 2.2, 2.3, 16A, 16B and 16C. Rules 2.2, 2.3, 16A (legal assistance) still applicable




2011: The standard/Law Council approved ASCR • 2012 Queensland adopts • 2014 New South Wales adopts

2011: South Australian version of ASCR adopted – added local rules 2.2, 2.3, 16A, 16B and 16C. Rules 2.2, 2.3, 16A (legal assistance) still applicable




2011: The standard/Law Council approved ASCR • 2012 Queensland adopts • 2014 New South Wales adopts

2011: South Australian version of ASCR adopted – added local rules 2.2, 2.3, 16A, 16B and 16C. Rules 2.2, 2.3, 16A (legal assistance) still applicable In 2014 Law Council begins consultation on revision of ASCR, and NSW and Victoria make proposals. Before the Law Council finishes its consultation …




2011: The standard/Law Council approved ASCR • 2012 Queensland adopts

2011: South Australian version of ASCR adopted – added local rules 2.2, 2.3, 16A, 16B and 16C. Rules 2.2, 2.3, 16A (legal assistance) still applicable 2015: Uniform ASCR introduced in New South Wales and Victoria.

• Proposals regarded as ‘cosmetic’




2011: The standard ASCR • 2012 Queensland adopts


• Proposals regarded as ‘cosmetic’ • Law Council approves the Uniform ASCR as its standard




2011: The standard ASCR • 2012 Queensland adopts • 2015 Australian Capital Territory adopts


• Proposals regarded as ‘cosmetic’ • Law Council approves the Uniform ASCR as its standard



Three versions of the ASCR – How cosmetic were the changes incorporated in the Uniform ASCR?

ASCR (Qld), r 40.1: A solicitor must not … share … receipts … with … any person convicted of an indictable offence that involved dishonest conduct ..

Legal Profession Act 2007 (Qld), s 11(1): A conviction … includes … (a) a finding of guilt; (b) the acceptable of a guilty plea.

Uniform ASCR, r 40.1: A solicitor must not … share … receipts … with … any person found guilty of an indictable offence that involved dishonest conduct ..

Legal Profession Uniform Law 2014, s 6(1): conviction includes a finding of guilt, or the acceptance of a guilty plea by the court …



Three versions of the ASCR, and two commentaries

Law Council commentary, August 2013

www.lawcouncil.asn.au/lawcouncil/divisions/legal-practice-division/australian-solicitors-conduct-rules

Queensland Law Society commentary, June 2014

www.qls.com.au/About_QLS/Queensland_Law_Society/Resources_publications/The_Australian_Solicitors_Conduct_Rules_2012

http://www.lawcouncil.asn.au/lawcouncil/divisions/legal-practice-division/australian-solicitors-conduct-rules











http://www.qls.com.au/About_QLS/Queensland_Law_Society/Resources_publications/The_Australian_Solicitors_Conduct_Rules_2012

http://www.qls.com.au/About_QLS/Queensland_Law_Society/Resources_publications/The_Australian_Solicitors_Conduct_Rules_2012


The Australian Solicitors Conduct Rules

An Introduction

Reid Mortensen

School of Law and Justice

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