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THE NEW PROFESSIONAL CONDUCT RULES

Haydn Rigby

In the daily swirl of legal practice, it is easy to become overly task-oriented

(especially with the filling out of daily time sheets) rather than keeping an eye on the

bigger picture. In an environment which is obsessively task-oriented, outcomes are

often measured (to the extent that they are measured) in purely statistical and

economic terms. This mentality is ubiquitous in the legal profession in WA and does

much to shape the private legal practice landscape.

However, it also needs to be remembered that this legal landscape operates in a

regulatory environment which sometimes has very different goals to legal

practitioners obsessed with economic goals. This environment can be very harsh on

those who fail (or perhaps refuse) to properly understand it. Legal ethics is about

successfully navigating WA’s legal environment, an environment which has no truck

with those who don’t bring a compass!

The legal practice landscape changed significantly in WA with the introduction of the

Legal Profession Conduct Rules 2010 (new PCRs) on 1 January 2011. The new

PCRs represent a significant departure from the previous system governing lawyers’

professional conduct in Western Australia because the new rules have the status of

subsidiary legislation, rather than simply being guidelines for ethical conduct. This

paper deals with the impact of the new PCRs on practitioners' duties in three main

areas:

1. Fundamental duties;

2. Duties owed to the client; and

3. Duties owed to other stakeholders.

Where relevant, this paper also examines the key differences between the new PCRs

and the Law Society of Western Australia Profession Conduct Rules - July 2008

Revision (Old Rules).

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1. FUNDAMENTAL DUTIES OF PRACTITIONERS

The fundamental duties of the practitioner are set out in Part 2 of the new PCRs,

described as the Paramount duty to the court and the administration of justice (PCR

5) and the practitioner's Other fundamental ethical obligations (PCR 6).

PCR 5 states that the practitioner's paramount duty to the Court and the administration

of justice prevails to the extent of inconsistency with any other duty - specifically

referring to its precedence over the duty owed to the client. There is no explicit

statement of this duty in the Old Rules.

PCR 6 has two sub-rules, one declarative the other prohibitive:

Sub-rule (1) states that apart from complying with the new PCRs and the law, a

practitioner must:

act in the best interests of the client in any matter where the practitioner acts

for the client;

be honest and courteous in all dealings with clients, other practitioners, and

other persons involved in a matter where the practitioner acts for a client (e.g.

witnesses);

deliver legal services competently and diligently; and

avoid any compromise to the practitioner's integrity and professional

independence.

The requirement in PCR 6(1)(a) to act in the client’s best interests reflects the special

nature of the lawyer-client relationship, that is, a fiduciary relationship.1 The essence

of a fiduciary relationship is that one party exercises power on behalf of another and

pledges himself or herself to act in the best interests of the other.2 The Old Rules did

not state this duty as explicitly, however, it has always formed part of a lawyer’s

equitable duties to a client.

The Old Rules (at 20.1) required practitioners to treat professional colleagues with the

“utmost courtesy and fairness”. The new PCR is broader as it also requires

1 Hospital Products Limited v United States Surgical Corp (1984) 156 CLR 41 at 96-7 per Mason J

2 Norberg v Wynrib [1992] 2 SCR 226 at 272 McLachlin J as cited by McHugh, Gummow, Hayne and Callinan JJ in

Pilmer v Duke Group Ltd (In liq) (2001) 207 CLR 165 at 196-197 [71] (see: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2001/31.html)

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practitioners to behave courteously towards clients and other persons involved in a

matter. The express statement of this requirement in the new PCRs may have been

influenced by the Law Council of Australia’s Model Rules of Professional Conduct

and Practice (LCA Model Rules) (at 21.1) which require a practitioner to

communicate in a courteous manner with other practitioners.

The Old Rules (at 2.1) also included the general requirement to act honestly and

ethically and with competence and diligence, similar to the new PCR 6(1).

The Old Rules (at 10.1) also dealt with the issues of maintaining independence by

requiring a practitioner not to act for a client if it would be difficult for the practitioner

to maintain professional independence due to the practitioner’s connection with the

client or with the court. However, the new PCR 6(1) is broader than this specific rule,

requiring the practitioner to avoid any compromise to their integrity and professional

independence.

PCR 6(2) states a practitioner must not engage in conduct which:

demonstrates that the practitioner is not a fit and proper person to practice law; or

may be prejudicial to, or diminish confidence in, the administration of justice; or

may bring the profession into disrepute.

These prohibitions broadly mirror the prohibitions in the Old Rules (at 2.2).

The key change to this provision is the inclusion of a reference to being a “fit and

proper person to practice law” which echoes the requirement for admission (and to

hold a practicing certificate) under the Legal Profession Act 2008 (WA).

2. DUTIES OWED TO THE CLIENT

The duties owed to the client as described in the new PCRs are dealt with in the

following order:

Duty to act /continue to act

Duty of competence

Duty to obey

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Duty of candour /to be honest

Duty to inform

Duty of confidence

Duty to be loyal (ie avoid conflicts of interest)

DUTY TO ACT

In general, solicitors are not obliged to accept instructions from any client and may

decline instructions without having to give a reason, although there are exceptions to

this rule (e.g. where a lawyer has nominated for pro-bono work and is appointed to do

such work). The rule for barristers is different. Due to their much lower number and

narrower range of specialties, barristers generally have to accept a brief given to them.

Again, there are discretionary exceptions to this such as clashing commitments or if

the work is of a nature requiring alternative counsel specialising in a particular area of

law.

Where there is such an obligation to act, the only way to turn down a repugnant client

is if there is a real risk of a practitioner not being able to put their feelings aside and

discharge their duty to act in the client’s best interests.

However, in terms of competency and ability to complete an engagement, there are

certain threshold issues that a practitioner needs to consider. A practitioner must not

accept an engagement which is beyond the practitioner's competence (PCR 7(f)). Nor

must a practitioner accept an engagement unless the practitioner is in a position to

carry out and complete the engagement diligently (PCR 7(g)).

Care in deciding whether to accept an engagement is important because, once the

engagement has been accepted, the practitioner must: follow the client's lawful,

proper and competent instructions (PCR 7(a)); act in the best interests of the client

(PCR 7(d)); and perform the work diligently (PCR 7(e)).

As well as identifying for whom the practitioner is acting, a duty to act also relates to

what the practitioner has agreed to do on behalf of the client. It is important to define

the scope of the engagement with the client and ensure that this agreement is reduced

to writing. On the other hand, it is also prudent to flag important issues arising

outside the terms of engagement. The practitioner does not have a duty to act on

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these matters but may have a duty to inform the client about them. The practitioner

should seek the client’s instructions to give advice on issues arising outside the terms

of engagement, or alternatively, to strongly recommend to the client that they seek

advice from someone with expertise in the relevant field.

DUTY TO CONTINUE TO ACT

Once a practitioner has taken on a matter, there is a duty to continue to act unless

there is good reason to terminate the retainer (PCR 27(1)) including:

the client committing a material breach (or breach of an express provision) of

a costs agreement – 27(1)(a) and (b);

termination is required to prevent a breach of the new PCRs – 27(1)(c);

the client materially misrepresents material facts of their matter – 27(1)(d);

the practitioner reasonably believes continuing to act will have a serious

adverse effect on his/her health – 27(1)(e);

mutual trust or confidence between the practitioner and the client has

irretrievably broken down - 27(1)(f);

termination is for any other reason permitted by law - 27(1)(g).

When acting for a client in respect of serious criminal matters there must be

exceptional circumstances besides these to warrant termination by the practitioner.

The Old Rules also had a provision for termination by consent and the catch all

ground was for any other good reason rather than any other reason permitted by law.

Clients can always “walk” without giving a reason – there are no express provisions

in the new PCRs dealing with this as there was in the Old Rules (19.1).

As in the Old Rules, practitioners have a lien in client documents if a client has

terminated but not paid for their services. This is set out in PCR 29. While it has

always been the case at law that the operation of such a lien is limited where the

documents are essential for the client’s defence or prosecution of conduct of

proceedings, this is made explicit in PCR 29. This provision states that the incoming

practitioner must undertake to hold the documents subject to the lien and obtain

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reasonable security for unpaid costs or the incoming practitioner enters into an

agreement with outgoing practitioner to pay the latter’s cost on the completion of the

proceedings.

Clients have the right to choose counsel (a solicitor cannot impose counsel on his or

her client) and clients have the right to present their own case if they choose. In other

words, clients have the final say on representation.

This point is illustrated in the case of Gary Gilmore. Gilmore was the first person to

be executed in the US in nearly 20 years. Although he had chosen to die and ordered

his lawyers not to file an appeal, American Civil Liberties Union (ACLU) lawyers

tried to stop the appeal on the grounds of public interest as an amicus curiae but this

was denied. Although the Supreme Court had initially granted an amicus curiae

petition for a stay by Gilmore’s mother, it lifted this order and eventually affirmed

Gilmore’s right as a competent person who knowingly and intelligently refused to

appeal his death sentence.

DUTY OF COMPETENCE

The duty of competence overarches all the various duties and almost always entails a

legal duty (actionable in court in contract, tort, etc) as well as an ethical duty (liable to

disciplinary sanction).

The standard of “reasonable competence” has long been the standard for the legal

duty but is also the standard for the ethical duty under the Legal Profession Act 2008.

It remains to be seen how disciplinary bodies will apply the civil standard.

The relevant PCRs are 6(1)(c) and 7(c)-(h), replacing Old Rules 2.1 and 5, dealing

with competence and diligence.

PCR 6(1)(c) to some extent echoes Old Rule 2.1 in requiring practitioners to deliver

legal services competently and diligently and PCR 7(d)-(h) partially echoes the

provisions of Old Rule 5 in that the practitioner must:

act in the best interests of the client in any matter where the practitioner acts

for the client (PCR 7(d)). Previously, the obligation in Old Rule 5.6 was to

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give full benefit of practitioner’s knowledge and experience to advance and

protect client’s interests;

perform the work required on behalf of the client diligently (PCR 7(e)). This

reflects the requirement in Old Rule 2.1;

not accept instructions beyond the practitioner’s competence (PCR 7(f)),

which is the same as the requirement in the Old Rules at 5.7;

not accept an engagement unless the practitioner is in a position to carry out

the work competently or diligently (PCR 7(g)), which in Old Rule 5.5 used to

be do the work as soon as is reasonably possible, or inform client if unable to

do so;

not perform work in a manner that will increase client’s proper costs (PCR

7(h), which is the same as the requirement in the Old Rules at 5.8.

It should be noted that the following provisions which appeared in the Old Rules have

no corresponding counterpart in the new PCRs in that a practitioner must:

take such legal action as is reasonably necessary to protect the client’s

interests unless this is inconsistent with the engagement (Old Rule 5.3);

attempt to settle rather than litigate, if this is in the client’s interest (Old Rule

5.4).

Although these obligations could probably be implied by the rest of the new PCRs

(for example, acting in the client’s best interest: PCR 7(d)), it is unusual that they do

not appear in the new PCRs, given the added emphasis on the practitioner's duty to

the court.

DUTY TO OBEY

PCR 7(a) is the only new rule which addresses the duty to obey – a practitioner must

follow a client’s lawful, proper and competent instructions. The Old Rules did not

expressly refer to a duty to obey the client but as can be seen the duty as articulated in

the new PCRs is expressly limited to what is not only lawful, but also proper and

competent.

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It is submitted that this duty is really subject to the solicitor discharging all the other

duties, such as the duty of candour and the duty to uphold the integrity of the

profession. For example, practitioners must first properly discharge their duty to

inform their clients (of their legal position and options) before they can properly obey

the client. That is, a practitioner cannot accept clients' instructions if they have not

made a properly informed decision.

DUTY OF CANDOUR /TO BE HONEST

PCR 7(b) and (c) uses the same wording as the Old Rules: the practitioner must treat

the client fairly and in good faith giving due regard to the position of dependence, the

practitioner’s special training and experience and high degree of trust the client is

entitled to place in the practitioner; and the practitioner must be completely frank and

open with the client.

It is submitted that the practitioner-client relationship should be co-operative and,

where possible, aimed at seeking a consensus of views, rather than an attempt at

control by either the practitioner or the client.

This duty is reinforced in PCR 8, which provides that a practitioner must

communicate candidly and in a timely manner with a client in relation to any matter

in which the practitioner represents the client. The requirement in the Old Rules (at

5.2) was slightly different, providing that a practitioner must give the client a candid

opinion on any professional matter concerning the client. The new PCRs arguably

impose a broader requirement relating to all communications. In this context,

candour means being persuasive and proactive in obtaining instructions, rather than

adopting a passive attitude.

There is an opportunity to establish firm foundations for such a relationship in the

drafting of the engagement agreement which should set out the mutual expectations of

the parties as to the conduct of the matter.

DUTY TO INFORM

This duty is related to the duty of candour, particularly in PCR 8 referred to earlier,

but goes beyond the situation of just being candid.

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Under PCR 10, the practitioner has a duty to inform clients of:

their rights and possible courses of conduct in relation to any matter in which

the practitioner represents the client;

all significant developments in the matter in which the practitioner represents

the client;

general progress on any matter unless instructed not to do so; and

(promptly) the receipt of any monies or securities received on their behalf.

These provisions are virtually the same as under the Old Rules 5.2 and 11, except that

the new PCRs introduce the notion of the practitioner being required to take “all

reasonable and practicable” steps to do the above. However, this does not apply in

the case of the notification of the receipt of monies or securities which is absolute, and

must be done promptly.

There are no longer any costs disclosure provisions in the new PCRs unlike the Old

Rules 11.3 and 18. This is not surprising given there are cost disclosure provisions in

the Legal Profession Act 2008, particularly in Division 3, Part 10.

More generally, failure to keep a client properly informed can also be considered

negligent and/or a breach of contract and can lead to civil action if not barred by the

doctrine of advocate’s immunity (ie not being liable for conduct intimately connected

with the litigation). Particularly serious is a practitioner’s failure to inform their client

of a settlement offer, and there have been instances where practitioners have been

struck off the roll for failing to communicate an offer.

DUTY OF CONFIDENCE

PCR 9(2) provides that a practitioner must not disclose client information to a person

other than the client unless the person is an associate of the practice, a person engaged

to provide legal services to the client or a person employed or otherwise engaged by

an associated entity for the purpose of providing administrative services.

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PCR 9(2) poses an entirely negative test, in contrast to Old Rule 6 which also had a

positive test to the effect that practitioners had to strive to maintain a relationship of

trust and confidentiality.

The exceptions to the duty of confidence are set out in PCR 9(3):

an express or implied client authorisation to disclose;

the practitioner is permitted or compelled by law to disclose;

the practitioner is seeking advice from a person regarding the practitioner’s

legal or ethical obligations (this is a new rule);

to avoid the probable commission of a serious offence;

to prevent imminent serious physical harm to the client or another person;

disclosure to the practitioner’s professional indemnity insurer for obtaining or

claiming insurance or notifying of potential claims (this is a new rule);

to respond to a complaint or proceedings brought against the practitioner,

his/her practice, an associated entity, or employee (“proceedings” is not

limited to “criminal proceedings” as was the case in the Old rules).

The following provisions from the Old Rules do not appear in the new PCRs, but are

arguably preserved either by the operation of the common law or of the PCRs as a

whole:

the practitioner must strive to maintain a relationship of trust and confidence

(i.e. a positive obligation of confidentiality);

the practitioner must impress on the client that he/she cannot adequately serve

the client’s interests without knowing everything that is relevant, including

anything embarrassing or harmful to the client;

the practitioner must not without client’s consent disclose confidential

information or use it in any way detrimental to client’s interests (there is no

express preclusion of unauthorised use of confidential information in the new

PCRs, only unauthorised disclosure, however, unauthorised use would be a

breach of the fiduciary relationship);

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the practitioner must take reasonable steps to test the validity of the law, rule

or court order requiring disclosure where there are reasonable grounds to do

so;

the duty of confidentiality continues after the relationship has ceased

(however, this duty still exists at common law, see Newman v. Phillips Fox

(1999) 21 WAR 309 at 315 per Steytler J where he stated that the duty to

preserve the confidentiality of information imparted during the retainer

between a lawyer and client continues notwithstanding termination of the

retainer).

The duty of confidence applies to any oral or written communications between the

practitioner and the client in situations where: a communication is conveyed in

confidence to the practitioner; and the practitioner is acting in a professional

capacity.3

Further, the duty also applies to any oral or written communication, whether or not

between the practitioner and the client, where it comes into existence for the dominant

purpose of obtaining legal advice on existing or anticipated litigation.4

At the heart of the duty of confidence is the fiduciary relationship between the

practitioner and the client. The raison d'être for this duty is the proper administration

of justice based on eliminating any hesitation on the client's part to be frank and open

with their practitioners; thus allowing the practitioner to present a “reliable” version

of events to the Court.

DUTY TO AVOID CONFLICT OF INTEREST

Conflict of interest generally

Like the duty of confidence, the duty to avoid conflict of interest arises out of the

fiduciary relationship between the practitioner and the client, and these duties often

overlap in the sense that many conflicts can lead to the disclosure or misuse of a

client's confidential information. Expressed in a positive way, it means the duty to be

loyal or faithful and it can arise in respect of concurrent or successive representation.

3 Waterford v Cwlth of Australia (1987)163 CLR 54 at 95 (Dawson J).

4 Esso Resources Ltd v FCT (1999) 201 CLR 49; Daniels v Corp International Pty Ltd v ACCC (2002) 77 ALJR 40 at

42-43

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Conflict of interest is dealt with in PCRs 12 to 15.

PCR 12 states that a practitioner must protect and preserve the interests of a client

whereas the Old Rule 7 attempted to express the duty in fiduciary terms, namely to

give undivided faithfulness to the client's interest.

For some matters, the risk can be managed; with others, the practitioner is barred from

acting. When considering the potential for conflicts of interest, the practitioner must

be aware that conflicts can be actual or perceived (from the public’s viewpoint).

The ambit of the rules relating to potential conflicts is broadly similar to the Old

Rules except for the specific mention of affiliates of the practitioner (PCR 12(d)), and

the omission from PCR 12 of the Old Rule 7 reference to the practitioner's perception

of the public interest. However, the issue of perceived conflicts is now covered in

PCR 33 in the requirement for the practitioner to maintain professional independence

in the court and avoid holding the offices set out in Schedule 1 (PCR 33(4)).

Furthermore, as will be noted later, informed consent and information barriers appear

to be a requirement in relation to every conflict of interest problem, although it is

uncertain whether this was intended.

Following on from the general provisions as to conflicts of interest the new PCRs then

set out the different categories of conflict in discrete categories rather than conflating

them into one rule (as with Old Rule 7).

Former clients

The test is substantially the same under PCR 13 as in Old Rule 7.6 for determining

when a conflict is deemed to have arisen, namely: that there is a real possibility that

information will be used or disclosed to the detriment of the former client (derived

from Ipp’s test in Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR

357).

However, PCR 13 provides that, not only is informed written consent of the former

client an exception to the rule, but also, alternatively the establishing of an effective

information barrier to protect the former client’s confidential information (whether or

not, it would appear, the former client consents or not).

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Acting for current clients

The test in PCR 14 for a deemed conflict of interest appears to be substantially the

same as before (Old Rules 7.3, 7.5 and 7.8) namely:

where the clients are engaged in the same or a related matter;

their interests are adverse to each others’; and

there is an actual or potential conflict of duty to act in the best interests of both

clients at the same time.

However, as with PCR 13, the prescription for how one should deal with the conflict

is different. The Old Rule 7 was more explicit in these situations when there was an

actual concurrent conflict of interest, namely practitioners could not:

give advice to a person knowing that person’s interests conflict with an

existing client’s except for referral advice to another practitioner (at 7.3);

represent or continue to represent two or more clients with conflicting interests

in litigation (at 7.4).

The new PCR does not appear to draw any lines between litigious and non litigious

matters. As with non-litigious matters under the Old Rules, as long as each client has

provided informed consent, it is acceptable to act, but the new PCRs also require an

effective information barrier for all conflict of interest matters (this is an additional

requirement for current clients not an either/or, as in the case of former clients).

Practitioner’s own interests conflicting with clients

The obligation to avoid conflicts between the practitioner’s own interests and the

client’s interests is set out in PCR 15. Under this rule, the practitioner must also avoid

conflicts of interest between the client’s interests and the interests of the practitioner’s

law practice and affiliates. A practitioner may only provide legal services to a client

where a conflict of this type exists if the client is fully informed of the conflict,

receives independent written legal advice regarding the effect of the conflict and

agrees to the practitioner providing the legal services. The requirement to obtain

independent legal active did not appear in the Old Rules.

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Borrowing money from a client is also included in this PCR (which was a separate

Rule 8 in the Old Rules) and there appear to be no circumstances (informed consent

or otherwise) when this is permissible. It is a similar situation in circumstances where

the practitioner goes surety or guarantor for a client.

It is interesting to note that there is no equivalent of Old Rule 28 in the new PCRs.

The Old Rule dealt with conflicts of interest and other issues when acting for a lender

and a borrower, a lender and a guarantor, a borrower and a guarantor, or co-

guarantors, in the same transaction and matters to address and procedures to follow

when advising borrowers or guarantors generally. An absolute prohibition was placed

by the Old Rule on acting for a lender and a guarantor at the same time and various

prescriptions and procedures recommended for the other various conflict scenarios.

Therefore, there seems to be no absolute prohibition under the new PCRs against

acting for a lender and a guarantor at the same time as long as the practitioner obtains

informed consent and establishes effective information barriers. However, rules

notwithstanding, it is highly inadvisable to act for a lender and a guarantor at the same

time in any circumstances.

3. DUTY TO OTHER STAKEHOLDERS

The duties owed to other stakeholders as described in the new PCRs are dealt with in

the following order:

Duty to the Court

Duty to other interested parties /other solicitors

Duty to employers / the profession / the community

Duty to yourself / friends / family

DUTY TO THE COURT

Apart from the practitioner's paramount duty to the Court (Refer Section 1), PCR 32

grants practitioners the power or rather independence in how they handle proceedings

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in court to ensure they discharge this duty properly (clients do not have to be obeyed,

but their wishes need to be taken into consideration).

This principle is most likely in recognition of the fact that many of the duties to the

client are actually linked to the practitioner’s duty to the proper administration of

justice, particularly the duty of confidence and the duty to avoid conflicts of interest,

which are not so much to protect the client but the integrity of the legal system.

There are also significantly more rules now dealing with duties to the court than

previously (principally Old Rules 14 and 15). There is a whole Part 6 (SCRs 32-44)

devoted to these duties which are based on the LCA Model Rules.

The legal and ethical duties of a practitioner to the court can be breached by abuse of

process or by misleading the Court.

Breach by Abuse of Process

Some examples of abuse of process include:

unreasonable delays;

unreasonably incurring expense;

using the court process for ulterior motives;

trying to defame - misuse of privilege of immunity in defamation suits;

trying to bias or unfairly influence the decision maker;

trying to open a “can of worms” rather than stick to issues.

The Old Rules were quite general in their injunctions not to waste the court’s time,

put it to unnecessary expense, or abuse court process (eg Old Rule 14.4(2)). The new

PCRs are more specific, the most relevant being PCR 36 – Responsible use of court

process and privilege, which covers:

confining the case to issues genuinely in dispute;

having the case ready to be heard as soon as practicable;

presenting identified issues clearly and succinctly;

limiting evidence and cross-examination to what is reasonably necessary;

occupying as short an amount of court time as is reasonably necessary;

PCR 36 also provides that allegations made under court privilege must be:

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capable of being reasonably justified by the available material,

appropriate for the advancement of the client’s case

not made principally to harass, embarrass or gain some collateral advantage

for the client, particularly in cases of fraud or criminal allegations.

Breach by misleading the court

Some examples of a misleading the court include:

failing to produce material when required to do so;

producing material that is known to be false or misleading;

playing tricks on the court.

PCR 34 - Frankness in court states (at sub-rule 1) that: A practitioner must not

knowingly or recklessly mislead the court. This new rule arguably poses a different

threshold than Old Rule 14.2 which provided a more limited form of words: Counsel

must not intentionally deceive or mislead the court. Thus it now appears to be easier

for practitioners to fall foul of this rule.

Other matters covered by PCR 34 are as follows:

practitioners must correct misleading statements as soon as possible after they

become aware that the statement was misleading;

practitioners seeking interlocutory relief must disclose all known relevant

facts;

practitioners must inform the court of all relevant cases and statutes at the

appropriate time in the hearing.

There are also provisions regarding integrity of evidence including the following

duties placed on practitioners:

not influencing witnesses to give false evidence (PCR 39);

not interviewing two or more witnesses together (PCR 40); and

not communicating with witnesses under cross examination (PCR 41).

Old Rule 15.4, the guilty client rule, or “dinner party discussion” rule, provided that if

the client clearly confesses guilt after entering a not guilty plea and the trial has

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already commenced, the practitioner must continue to act. If the client confesses their

guilt before proceedings have commenced the practitioner may choose whether to

continue to act or to terminate the retainer.

However, if the practitioner does continue to act, then they must not subsequently set

up an affirmative case inconsistent with the confession by, for example, asserting or

suggesting that some other person committed the offence, or calling evidence in

support of an alibi.

The new PCR 35(2) and (3) are very similar to the Old Rule, but more options are

articulated for a practitioner representing a client who has confessed their guilt but

wishes to maintain a plea of not guilty, including:

arguing the evidence as a whole does not prove that the client is guilty;

arguing that the client is not guilty for some reason of law;

putting forward any other reason (that does not mislead the court) as to why

the client should not be convicted.

There may be both legal and disciplinary consequences for a practitioner who

breaches their duties to the court. Legal consequences may include:

civil liability (contract, tort, consumer law/other statute);

costs order against the solicitor.5

criminal sanctions (contempt of court, fraud, perjury, etc)

The potential disciplinary consequences include a practitioner being asked to explain

their actions to the Legal Profession Complaints Committee, and possibly facing

disciplinary proceedings resulting in a reprimand, fine, suspension from practice or

even court action to have the practitioner struck off the roll.

5 Order 66 Rule 5, Rules of the Supreme Court - Liability of solicitor

(1) Where in any proceedings costs are incurred by a party (a) as a result of any improper, unreasonable, or negligent act or omission; or

(b) which, in the light of any such act/omission occurring after they were incurred, the Court whom it considers it is unreasonable to expect that party to pay the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent)

(c) to pay those costs personally or indemnify any party who has been ordered to pay those costs; (d) not to claim any relevant costs or fees; or (e) to refund any relevant costs or fees which may have been paid already.

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DUTY TO OTHER PARTIES AND OTHER PRACTITIONERS

Duty to the party on the other side. This is breached by dealing with the other

party unfairly or failing to advise them to get independent legal advice if

unrepresented;

Duty to a party other than a client who has an interest in the matter. This is

breached by failing to take the other party's interests into account (eg the

beneficiary of a client’s will);

Duty to the other party’s practitioner. This is breached by the use of “trial by

ambush” tactics, dealing directly with the other practitioner's client, and

lacking professional courtesy generally;

Duty to other practitioners generally. This is breached by the adoption of

discriminatory practices (particularly in relation to work colleagues) or lacking

professional courtesy generally.

It was Old Rule 20 that contained most of the duties to other parties: courtesy to a

colleague (20.1); not capitalising on a colleague’s mistake (20.2); not contacting the

other party directly (20.3); and the duty to notify other practitioners when matters are

taken over from them (20.4).

New PCR 6 covers similar ground to Old Rule 20.1 as it requires practitioners to be

honest and courteous in all dealings with other practitioners. Interestingly, there is no

new PCR requiring incoming practitioners to notify outgoing practitioners when

taking over a matter but this situation would be captured by the general professional

courtesy provision in the PCRs mentioned earlier.

PCR 23 is wholly devoted to not capitalising on an opponent’s error, although it is

virtually identical to Old Rule 20.2:

A practitioner who observes that another practitioner is making or is likely make a

mistake or oversight which may involve the other practitioner’s client in unnecessary

expense or delay-

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(a) must not do or say anything to induce or foster that mistake or oversight;

(b) must draw the attention of the other practitioner to that mistake or

oversight,

if:

(i) doing so is unlikely to prejudice the interests of the first-mentioned

practitioner’s client; or

(ii) the first mentioned practitioner’s client consents (this last line is

new).

PCR 24 is a new rule vis-a-vis other practitioners. It requires that, where there has

been inadvertent disclosure of privileged material by one practitioner to another, the

practitioner who received the information must notify the first practitioner and must

arrange for the material to be returned to the other practitioner, or destroyed or deleted

as appropriate. The practitioner who received the privileged material must also notify

their own client of the disclosure, but must not disclose the privileged material to their

client.

Communications with opponents

PCR 37, dealing with communications with opponents is the equivalent of Old Rule

20.3. However, PCR 37 does not only limit communication to an opponent in

exceptional circumstances. It also provides that a practitioner must not knowingly

make a false or misleading statement to an opponent in relation to a matter, and, if a

false or misleading statement has (inadvertently) been made, must correct the false or

misleading statement.

Communication with represented opponents requires their practitioner’s consent; or is

permissible in circumstances where:

direct contact is urgently required and would not be unfair to the other

practitioner’s client;

the substance of the communication is to enquire whether the person is

represented and by whom; or

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notice is given to the other practitioner, but the other practitioner fails to

respond within a reasonable time, and there is a reasonable basis for the

communication.

This PCR is more specific than the “exceptional circumstances” described in the Old

Rules. There are also provisions in PCR 37 about not communicating with a party

who the practitioner knows might be insured and the communication may harm the

party's insurance interests.

Further, there are prohibitions on contacting the court in the absence of the opponent

unless in special circumstances (e.g. ex parte or by court order) and any

communication with the court made by one party should be copied to the other party.

Prudent lawyers have always observed these sorts of practices and professional

courtesies, but their inclusion in the new PCRs only highlights the importance of their

continued observance.

Duty to prohibit discrimination, harassment and offensive behaviour

PCR 17 requires a practitioner not to engage in conduct which constitutes unlawful

discrimination, unlawful harassment, or workplace bullying. This replaces Old Rule

20, which dealt primarily with duties of practitioners to other parties; or practitioners

who were employees. The issues covered by Old Rule 20 were: unlawful

discrimination; sexual harassment; and general annoying workplace behaviour,

however, these concepts were not clearly defined.

PCR 17 links the concepts of “unlawful discrimination” and “unlawful harassment” to

defined terms in legislation. The exception is “workplace bullying” for which there is

currently no statutory definition. The phrase is defined in the new PCRs as

“behaviour that could reasonably be expected to offend, intimidate, degrade,

humiliate, isolate or alienate a person working in the workplace.”

These terms could also apply to clients (insofar as harassment and discrimination is

concerned) as well as employees, but mainly concerns the latter.

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DUTY TO EMPLOYERS, THE PROFESSION AND THE COMMUNITY

Duty to uphold standards within the workplace. Necessary to maintain the

reputation and status of the employer and promote workplace harmony;

Duty to uphold the standards within the profession Necessary for practitioners

to continue to enjoy the privileges of the legal profession (a degree of self

regulation, status, respect, and respectable remuneration);

Duty to uphold the standards within the community Necessary to continue to

enjoy professional privileges and to uphold the proper administration of law.

General duties

Most of the PCRs concerning practitioner’s general duties to employers, the

profession and the community are the same as the Old Rules.

In relation to the manner in which a practitioner conducts their practice, the duties are

largely similar. A practitioner must:

conduct their legal practice in a proper and efficient manner, ensure the

supervising practitioner is in attendance during business hours (PCR 17);

not hold themselves out as a partner, unless they are one, and must not put

their name on any sign or stationery unless the person is a partner or an

employed practitioner and their title and position is stated (PCR 19);

conduct other businesses so as not to detract from the dignity of the profession

and in a manner that keeps the other business records separate and which is

not intended to attract legal work (PCR 20);

A practitioner must observe the PCRs even if employed by a non legal practice (PCR

21). Other duties relating to professional integrity and conduct include:

maintaining professional integrity - not employ unfair and dishonest means,

not cause others to breach the rules, report breaches of the rules by others and

one’s own client, unless privilege applies (PCR 16);

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honouring personal undertakings to other practitioner’s or third persons (PCR

22);

not promoting or marketing, or have any financial interest in any business

whose predominant purpose is tax avoidance (PCR 48);

being open and candid with and promptly complying with requests from any

regulatory authority (PCR 50).

The duties outlined in relation to costs in the Old Rules are also reiterated in the new

PCRs. A practitioner must:

not make demand for costs from other side without proper basis, render

invoices to the client when requested, not overcharge, and must not charge

more than is reasonable for the practitioner’s services having regard to:

the complexity of the matter;

the time and skill involved;

any applicable scale of costs;

any costs agreement. (PCR 18)

be responsible for agents’ and counsels’ fees (PCR 26);

Old Rule 17.4 was similar to PCR 18 in that it provided that a practitioner may only

charge costs which are no more than is reasonable for the practitioner’s services,

having regard to the factors listed above.

PCR 25 also includes a new provision relating to costs which states that a practitioner

who engages another person to provide services on behalf of a client must advise the

other person, in writing and in advance, of the other person’s fee, if the practitioner

does not intend to be responsible for the fee.

There have also been some significant changes to the provisions in the PCRs relating

to advertising and publicity.

PCR 45 covers advertising and publicity, and provides that any advertising or

marketing in connection with a practitioner or a law practice is not false, misleading

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or deceptive, offensive or likely to be prejudicial to or diminish the public confidence

in the administration of justice, likely to bring the profession into disrepute, or

prohibited by law.

Old Rule 4 permitted publicity and advertising subject to Schedule 3 – which has not

been included in the new PCRS. Schedule 3 set out detailed guidelines relating to law

practices engaging in advertising and marketing, and gave numerous examples of

misleading advertising on a range of topics including: qualifications; specific

expertise; specialisation; rates of prior success; expectations of results; comparative

advertising; fee advertising (including “no win, no fee” advertising, which was

prohibited under Schedule 3); testimonials and endorsements; referral agents;

identifying advertising; and methods of publication.

The removal of Schedule 3 is a dramatic change from the previous regime, and it will

be interesting to see what impact, if any, this has to the legal profession.

DUTY TO YOURSELF YOUR FRIENDS AND YOUR FAMILY

Neither the law nor the Professional Conduct Rules refer to any duty to yourself or

your friends and family (perhaps they should). Nevertheless, a breach of any of the

duties discussed above and the ever present threat of civil, criminal or disciplinary

action (or worse, actual action) may:

limit or remove your right to practice;

damage your professional or personal reputation;

hurt you financially;

seriously affect your physical and emotional health;

damage your relationship with others;

lead to a lot of sleepless nights.

Consequently, there are both personal and career benefits to ethical conduct.

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CONCLUSION

The introduction of the Legal Profession Conduct Rules 2010 represents a significant

shift in the way practitioners’ ethical obligations are regulated in Western Australia.

This module has provided a detailed overview of some of the key aspects of the new

regime, and the similarities and differences between the new PCRs and the Old Rules.

It is essential for practitioners to familiarise themselves with the new PCRs and how

they apply to their practice on a day-to-day basis to minimise the risk of committing

any breaches of the rules, and consequently, the risk of disciplinary action or other

consequences of unethical conduct.

However, the new PCRs appear to be unintentionally overly permissive in some areas,

especially the area of conflicts of interest, and it may be that there could be some

tightening of the PCRs in the months and years to come. It is therefore perhaps

prudent to adopt the sort of attitude that was appropriate for the Old Rules, namely

that they were not exhaustive of what one could or could not do professionally and

that, if in doubt, conduct of a standard higher than that outlined in the PCRs is called

for to ensure the appropriate professional response. Thus, it is better to avoid acting in

a situation (such as a conflict of interest situation) if it does not “feel right” to do so

even if the PCRs seem to suggest it is okay to act.

It is also worth bearing in mind that senior members of the independent Bar are under

a professional obligation to be a sounding board for fellow practitioners about ethical

concerns. Ethical concerns in the legal profession do not and should not have to be

faced alone given what is at stake.