#13078 - Duty To Obey The Law - Ethics

Duty to obey the law

• Introduction:

  • Lawyers must not knowingly breach the law, or assist, induce or countenance a breach of the law by others.

  • The duty is part of the broader duty to serve the administration of justice (duty to the court) The administration of justice overlays and underlays all of the other duties.

  • This is a non-negotiable duty that is paramount and the most obvious duty owed by lawyers and informs all categories of duty

• Relevant legislation:

  • Australian Solicitors’ Conduct Rules (ASCR)

    • ASCR 3.1 Solicitors have a duty to the court and the administration of justice which is paramount and prevails to the extent of inconsistency with any other duty

    • ASCR 4.1.5 A solicitor must comply with these rules and the law

  • Proposed Legal Profession Conduct Rules for Barristers

    • LPCRB 6(a) Barristers owe their paramount duty to the administration of justice

    • LRCRB 12(b) Barristers must not engage in conduct which is prejudicial to the administration of justice

• Content of the Duty

  • The duty to obey the law requires that lawyers:

    • Act honestly, legally, professionally, so as not to bring the profession into disrepute or jeopardise the administration of justice

    • Must not knowingly assist or induce clients or others to breach the law

    • Must not place client’s interests above the law

    • Must not criticise law in a manner which undermined its authority or damages public confidence in the law

• Clients who act unlawfully

  • If a lawyer becomes aware tat a client is engaging in unlawful conduct, the appropriate response is to counsel the client against it and to eschew any involvement in that conduct, whether by assisting or being seen to be condoning that activity.

  • “It is inimical to the role and function of a legal practitioner that he or she advise or encourage a client to breach the law, regardless of whether the breach might be detected or prosecuted” LPCC v Segler; ACCC v Sampson 2011 FCA

  • If a lawyer has reason to believe that a client will disregard the lawyer’s advice, they should against counsel the client and, if they persist, terminate instructions.

  • Where a lawyer is doubtful of their client’s motives, he/she has a duty to make enquiries as to the client’s motives

  • Outside of these circumstances, no implication of involvement by a lawyer in a client’s misconduct ordinarily arise merely from an allegation that the lawyer performed legal work related to the client’s activities (Re Moage Ltd)

  • ASCR 20.1/LRCRB 78

    • 20.1 A solicitor who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or the decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

      • 20.1.1 has lied in a material particular to the court or has procured another person to lie to the court;

      • 20.1.2 has falsified or procured another person to falsify in any way a document which has been tendered; or

      • 20.1.3 has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court; must —

      • 20.1.4 advise the client that the court should be informed of the lie, falsification or suppression and request authority so to inform the court; and

      • 20.1.5 refuse to take any further part in the case unless the client authorises the solicitor to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the solicitor to do so but otherwise may not inform the court of the lie, falsification or suppression.

  • ASCR 20.2/ LRCRB 79 A solicitor whose client in criminal proceedings confesses guilt to the solicitor but maintains a plea of not guilty:

    • 20.2.1 may cease to act, if there is enough time for another solicitor to take over the case properly before the hearing, and the client does not insist on the solicitor continuing to appear for the client;

    • 20.2.2 in cases where the solicitor continues to act for the client:

      • (i) must not falsely suggest that some other person committed the offence charged;

      • (ii) must not set up an affirmative case inconsistent with the confession;

      • (iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

      • (iv) may argue that for some reason of law the client is not guilty of the offence charged; and

      • (v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged;

    • 20.2.3 must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.

  • ASCR 20.3/ LRCRB 80 A solicitor whose client informs the solicitor that the client intends to disobey a court’s order must:

    • 20.3.1 advise the client against that course and warn the client of its dangers;

    • 20.3.2 not advise the client how to carry out or conceal that course; and

    • 20.3.3 not inform the court or the opponent of the client’s intention unless: (i) the client has authorised the solicitor to do so beforehand; or (ii) the solicitor believes on reasonable grounds that the client’s conduct constitutes a threat to any person’s safety

  • Examples:

    • Clients using false names

      • Lawyers should enquire where they suspect that a client has given a false name for a trust account. Allowing a client to plead to a criminal charge in a false name may lead to the lawyer being charged with attempting to pervert the course of justice (see Hatty v Pilkinton (No 2))

    • Suspicion that client uses premises for illegal purposes

      • Lawyer may continue to act if by virtue of rumours that the premises are being used for an illegal purpose they then form a belief that the premises were being used for that purpose

      • However, if lawyer knows or receives instructions about illegality, he cannot act in any way so as to further that purpose (e.g. ought not prepare lease documents for the premises)

• The limits of lawful advice

  • A solicitor must not give advice that he/she knows or has reasonable grounds to believe is being requested to advance an illegal purpose. Never advise in a way that will do anything to encourage or underwrite the breaking of a law. There is a risk of being involved as an aider or abetter or as a principal.

  • Action plan:

    • Lawyer must cease to act if client’s instructions would lead to a breach of duty to the law

    • Lawyer must not advise clients as to the ways in which an unlawful purpose may be achieved or concealed but CAN advise on the legal aspects of questionable conduct e.g. Tax advice (See below)

• Consequences for breach of duty to obey the law

  • Civil liability

    • Lawyers who carry out client instructions that involve a fiduciary or trust breach may be found liable, if they exhibit the requisite knowledge, as recipient of trust property transferred in breach or for dishonestly assisting the breach.

    • Otherwise, liability does not accrue if following the directions of a person on whose behalf he holds money regarding its disbursement unless that lawyer was party to a conspiracy or fraud etc.

    • In giving advice, a lawyer may be liable in tort as an agent of the client for misrepresentation – or even as a principal – or under statute for misleading and deceptive conduct, where he or she passes on what the client has inaccurately disclosed an in some way adopts it as their own (but no liability if mere conduit)

  • Criminal responsibility

    • A lawyer who aids or abets a client’s criminal actions will be likewise criminally responsible for those acts as a party to the offence, though courts have noted that the mere giving of advice in the ordinary course of a retainer is usually insufficient to attract criminal sanction.

    • Most case law revolves around tax lawyers: tax lawyers who involve their clients in schemes that are found to defraud the revenue may be charged with conspiracy to defraud the revenue or as a party to tax offences (R v Pearce)

  • Disciplinary Sanction

    • Legal Practitioners Complaints Committee v Segler 2009 WASAT: Lawyer advised client he could carry out building project while unregistered. Found guilty of professional misconduct and unsatisfactory professional conduct.

    • Lawyers who become involved in their clients’ unlawful conduct or knowingly assist clients to effect an unlawful act or outcome are prime candidates for professional sanction Saunders v Edwards

    • In some cases, this may be lead to striking off Law Society of NSW v Dennis

• Policy

Line between advising on legal and illegal conduct

• A lawyer must not tender advice to a client that he knows or has reasonable grounds to believe is being requested to advance an illegal purpose. A lawyer must not advise a client as to the ways in which an unlawful purpose may be achieved or concealed, propose methods of breaking the law, or advise clients to behfave contrary to an order of the court.

• However, a lawyer may advise a client to engage in conduct the...