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Professional responsibility

Lawyers have a special responsibility to serve the needs of their clients. They also have responsibilities to the courts and to the legal profession. This section outlines the key responsibilities of solicitors in their relationship with clients.

The way in which lawyers should conduct themselves and their businesses in NSW is covered by the following sources:

  • Legal Profession Uniform Law (NSW) 2014 (LPUL)
  • Legal Profession Uniform Law Application Act 2014
  • Legal Profession Uniform Law Application Regulation 2015
  • Legal Profession Uniform General Rules 2015
  • Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Conduct Rules)
  • Legal Profession Uniform Legal Practice (Solicitors) Rules 2015
  • Legal Profession Uniform Conduct (Barristers) Rules 2015
  • principles established by common law through decisions made in the courts
  • determinations by the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT)
  • determinations made by the Legal Services Commissioner
  • Statement of Ethics.

The LPUL is the principal law covering solicitors and barristers in NSW. It covers a range of issues including:

  • practising certificates for solicitors and barristers
  • foreign lawyers in NSW
  • professional indemnity insurance
  • trust accounts
  • Solicitors Fidelity Fund
  • complaints and discipline
  • legal fees and costs.

The Professional Conduct and Practice Rules previously made by the Council of the Law Society of NSW under the Legal Profession Actare now contained in the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (the Conduct Rules) and the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015.

The Conduct Rules supplement the requirements of the LPUL and function as a guide to the requirements of the common law. It applies to solicitors in regard to:

  • relationships with clients
  • duties to the court
  • relationships with other lawyers
  • relationships with third parties (eg, witnesses)
  • legal practice.

Competence and promptness

As set out in section 4 of the Conduct Rules, a lawyer must:

  • act in the best interests of a client in any matter in which the solicitor represents the client
  • be honest and courteous in all dealings in the course of legal practice
  • deliver legal services competently, diligently and as promptly as reasonably possible
  • avoid any compromise to their integrity and professional independence.

Increasingly, Australian lawyers and consumers operate in more than just one state or territory. The regulation of the legal profession in Australia has been unnecessarily complex, with up to 55 different regulators across the country creating different practices and processes in different jurisdictions.

In April 2009, the Council of Australian Governments (COAG) agreed on a plan to achieve national regulation of the Australian legal profession. COAG called for the appointment of a specialist Taskforce and Consultative Group to produce draft uniform legislation.

While the various jurisdictions had been working toward consistent national regulation, substantial differences remained. Following discussions between the Attorneys-General of the Commonwealth, New South Wales, Victoria, Queensland and the Northern Territory, the Commonwealth Attorney-General released the draft Legal Profession National Legislation in September 2011. Queensland withdrew its participation in the scheme in October 2012.

Ultimately, only NSW and Victoria have proceeded with the reforms. In December 2013, the Legal Profession Uniform Law Application Bill was introduced in the Victorian parliament and was passed by both houses of parliament in March 2014. Legislation applying the Legal Profession Uniform Lawwas then introduced into the NSW Parliament on 27 March 2014 and passed both Houses in May 2014. The legislation came into force in both NSW and Victoria on 1 July 2015.

The objectives of the reforms include:

  • promoting consistency between states in the law applying to the Australian legal profession
  • ensuring lawyers are competent and maintain high ethical and professional standards in the legal services they provide
  • enhancing the protection of clients of law practices and the protection of the public generally.

The new legislation is also intended to allow clients of law practices to make informed choices about the services they access and the costs involved; promote regulation of the legal profession that is efficient, effective, targeted and proportionate; and provide a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

The legislation also establishes a Legal Services Council and Commissioner for Uniform Legal Services Regulation. The Council sets the rules and policy to underpin the Uniform Law, ensuring it is applied consistently across participating States. Existing Legal Services Commissioners and professional bodies continue to carry out complaints and investigation functions, grant practising certificates and provide professional development.

Other jurisdictions are encouraged to join the scheme and will be able to do so without the need for changes to the scheme.

More information, including the relevant legislation, is available from the Legal Services Council website.

 

Case study - poor preparation

A client was issued a Court Attendance Notice for Driving in a Manner Dangerous to the Public. The client told his solicitor that he intended to plead not guilty. At the time of engaging the solicitor, the client had a conference that only very briefly discussed the circumstances of the incident. After around eight months of adjournments, the matter was set down for hearing. From the initial meeting to the date of the hearing, the solicitor had not arranged a conference with the client. Importantly, detailed circumstances of the events were not obtained from the client and the client was not taken through the contents of the statement by the off-duty police officer who allegedly witnessed the client’s driving.

The solicitor arranged to have a conference with the client on the morning of the hearing. However, instead of conferring with the client, the solicitor attended another court to appear for a sick colleague, without informing his client. The client’s matter was called by the Court a number of times, but the solicitor was not present. The solicitor eventually arrived at the Court around midday.

In the hearing, the solicitor only asked 5-6 questions of the prosecution witnesses. After the evidence was heard, the Magistrate found the client guilty and sentenced him to six months imprisonment. The client engaged another solicitor and lodged an all grounds appeal to the District Court. The appeal was successful and the conviction was quashed.

In the judgment, the Judge made adverse comment about the solicitor’s preparation in the Local Court. The Legal Services Commissioner decided that the solicitor’s conduct in not sufficiently preparing for the client’s matter amounted to gross negligence and reprimanded the solicitor, despite the solicitor having no prior adverse disciplinary findings.

The Commissioner was concerned that, despite the evidence, the solicitor maintained throughout the investigation that he was adequately prepared. The Commissioner was also concerned that the solicitor knowingly accepted a concurrent engagement to appear for a colleague, after the solicitor made a personal assessment of the case load of the Court and decided that it would be otherwise occupied until the solicitor could attend.

The Commissioner’s view was that this practice negatively impacts on the efficient administration of justice as it is not the Court’s role to list and hear matters at the convenience of individual solicitors who choose to accept concurrent engagements. The Commissioner noted the difference if the solicitor was unintentionally delayed through misadventure or other reasonable personal circumstances.

The Office of the Legal Services Commissioner, Annual Report 2009-2010