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Conduct clarity

News

Cite as: (2009) 83(02) LIJ, p.24


A redraft of the professional standard rules hopes to compel practitioners to walk the ethical line.

An LIV redraft of the professional conduct rules is designed to further reduce unacceptable professional behaviours and unethical practices.

Victorian practitioners are currently working under the Professional Conduct and Practice Rules 2005 but the LIV decided a redraft was in order after realising solicitors were finding ways to circumvent them.

According to LIV Professional Standards general manager James Leach, the unethical conduct was made possible as the rules were drawn as blackletter law and “practitioners have treated them as such”.

“Rather than appreciate the concepts of professional behaviour standards that lie behind the rules, they tend to look for ways around the written rule,” Mr Leach said.

The Rules were based on the Law Council of Australia (LCA) 2002 National Code of Solicitors Conduct Rules.

The LCA designed the conduct rules in the hope that each constituent body would adopt them to ensure compliance by practitioners with the principles of professional conduct, support the administration of justice and offer a legal service unaffected by personal interest.

They were adopted to differing extents in various jurisdictions.

The LIV redraft, which was completed in October last year, has sought to change the 2005 Rules by inserting commentary, including principles, explanations of potential conflicts and case studies, after each dictum.

“It is about equipping practitioners with the information to consider their actions within the spectrum of what is acceptable and what is not and to make ethical decisions,” Mr Leach said.

“The view of the LIV Ethics Department and Rules Committee is that practitioners must decide for themselves whether any particular conduct has a likelihood of breaching any particular duty and then make an informed decision as to how to conduct their own practice.”

As the redraft outlines more broadly which behaviours are unethical, any practitioner found to have breached the Rules would find it increasingly difficult to argue that they were unaware of that fact.

It would then make it easier for the Legal Services Commissioner and other disciplinary bodies to deal with rogue solicitors.

Mr Leach said the revised Rules had been distributed to other jurisdictions and initial feedback from the Western Australia Legal Practice Board and LCA Rules sub-committee had been positive. Evaluation from other jurisdictions is also expected.

He said it was hoped the LCA would ultimately adopt the redraft as its national blueprint as the profession moves towards harmonisation.

Mr Leach said examples of where rules were currently being bent included practitioners arguing that the wording of a rule barring them from acting for more than one party during the life of a matter could actually be interpreted as giving them the green light to do so.

And a conflict rule forbidding an individual or firm from using a former client’s personal information has been interpreted as allowing a employee in the firm to use the information if they did not “personally” acquire it.

The ideas for the commentary insertion were drawn from the England and Wales Rules, the Canadian Rules and some of the existing 2002 National Code Rules.

The Rules were formed by an LIV committee representing large and medium-sized firms, sole practitioners, corporate lawyers, the LIV Ethics and Professional Standards departments and representatives of the Legal Services Commissioner and Legal Services Board.

The revised Rules are available from http://www.liv.asn.au/regulation/ethics. Any breach of the Rules constitutes professional misconduct.

How the new Rules Commentary works

The following is an example of the new commentary.

The current r18 reads:

A practitioner acting for the prosecution in any matter must fairly assist the Court to arrive at the truth, must seek impartiality to have the whole of the relevant evidence placed intelligibly before the Court, and must seek to assist the Court with adequate submissions of law to enable the law properly to be applied to the facts.

Under the re-draft the commentary added includes four commentary points and several working examples, including:

Commentary to r18

1. A practitioner acting for the prosecution in any matter is subject to the same rules as apply to practitioners generally. However the role of a practitioner acting for the prosecution carries additional obligations, in recognition of the public function in ensuring a fair trial.

Examples

1. Access by the accused to legal representation and advice

1.1 A practitioner acting for the prosecution has a duty not to confer with or interview an accused person except in the presence of the accused’s practitioner or other appropriate representative.

2. Access by the accused to all relevant information

2.1 A practitioner acting for the prosecution has a duty generally to disclose to the opponent as soon as practicable all material (including the names and means by finding prospective witnesses) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused.

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