By Paul Gregoire and Ugur Nedim
The Legal Profession Uniform Law (Uniform Law) came into effect in both NSW and Victoria on 1 July 2015. It provides the legal framework for the administration of the merged legal systems across the neighbouring states.
The market for legal services across the two states accounts for 70 percent of the nation’s legal professionals.
The Uniform Law established two bodies: the five member Legal Services Council and the Office of the Commissioner for Uniform Legal Services Regulation. The council sets out the rules and policies that underpin the Uniform Law, while the commissioner oversees dispute resolution.
Under the Uniform Law, the Legal Profession Uniform Law Application Regulation 2015 provides the practicalities of applying the legal framework, while the Legal Profession Uniform General Rules 2015 outlines the rules that govern the legal system as a whole.
And enacted on the same day as the Uniform Law, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules) outlines the responsibilities and duties of NSW solicitors, including those relating to relations with clients and other lawyers.
A solicitor’s obligations
Solicitors in Sydney, and indeed, right across the state of NSW, are bound by a set of duties once they take their oath and sign the roll of Australian lawyers. Rule 3 of the Conduct Rules states that a solicitor’s paramount duty is to the court and the administration of justice.
Rule 4 provides a list of other duties that fall upon a solicitor. These include acting in a client’s best interests, being honest and courteous during practice, delivering competent and diligent legal services, and “avoiding compromise to their integrity and professional independence.”
Solicitors are prohibited from engaging in conduct which suggests they are “not a fit and proper person to practice law” throughout all aspects of their life – not just during their working hours.
Solicitors are also required to ensure they honour all undertakings to perform legal work for clients and perform that work in a timely manner.
The client/solicitor relationship is one of the most fundamental of our legal system.
It is classified as a fiduciary duty, where clients places their “confidence, good faith, reliance and trust” in the hands of their lawyer.
Confidentiality is key to this relationship. A solicitor must ensure that any conversations, correspondences and documentation that involve a client be kept confidential between the two parties, and only revealed to others in limited situations.
Before a solicitor begins working for a client, they must disclose in writing how much they will charge, along with other expenses. Known as cost disclosure, this practice should be followed up with regular invoices that outline what services the client is being billed for, and the charge for each of those services.
A solicitor must not allow their own interests, or those of others they associate with, conflict with the interests of their client. In most circumstances, a solicitor should not represent an individual who is in a dispute with one of their current or former clients, as this could create a conflict of interest.
The specifics of the client/solicitor relationship must be transparent at all times. A client should receive regular written updates about the progress of their cases. And a solicitor must provide advice about all practical courses of action.
Lawyers must also take the time to explain the law and legal processes to their client. Solicitor must always follow their clients’ instructions, and do so in a timely manner, and in compliance with the law. This means it is improper to act upon directions from a client’s family member or friend, rather than from the client him or herself, unless certain exceptional circumstances are involved.
Duties to others
The Conduct Rules also outline the duties solicitors have to other people. These include not taking advantage of another lawyer or other person in order to benefit their client if the act has no “supportable foundation in law or fact.”
A solicitor who becomes aware that any disclosed materials are confidential, and therefore should not have been supplied to them, should notify the opposing lawyer or other person involved immediately. The materials should be returned or destroyed.
Lawyers must also refrain from making allegations of unsatisfactory professional conduct or misconduct against another Australian legal practitioner, unless they have sufficient material to establish the claim against that particular lawyer.
Fit and proper conduct
Contact with another solicitor’s client or clients is forbidden for NSW solicitors, unless a prior arrangement has been made with the other lawyer, or the solicitor reasonably believes there is a level of urgency that warrants the contact.
Whilst representing their client, a solicitor must not act or communicate to an extent that exceeds the rights of the client, or misleads or intimidates other people. Nor should they threaten criminal proceedings against another person if a civil liberty of their client’s is not satisfied.
In promoting their practice, a NSW solicitor must not seek instructions for the provision of legal services in a manner that harasses another person, who due to a recent trauma or injury might be at a disadvantage by dealing with the solicitor at the time the instructions were sought.
And if a solicitor engages with a third party on behalf of their client, but is not intending to pay them personally, the solicitor must advise that party in advance. This may apply to medical practitioners or other experts that are engaged to prepare reports and the like.
All NSW solicitors are required to hold a current practising certificate in order to practise law. The certificate acts a formal agreement to abide by the profession’s rules and codes of conduct, and must be renewed annually.
As part of the requirements for a practising certificate, a solicitor must commit to mandatory continuing professional development training, which ensures they stay abreast of developments in ethical and professional responsibilities, as well as professional skills and of course the law.
‘Accredited Specialist lawyers’ are required to undertake a greater number of hours of yearly legal training than other solicitors. These lawyers are certified by the Law Society of NSW as experts in their field of law. Areas of specialist accreditation include criminal law, family law and personal injury law.
These rules and regulations are designed to ensure that when members of the general public come to the point where they need to engage with a NSW solicitor, they can do so with trust, and without fear of having their confidentiality breached.