#13082 - Duty To The Client Specific Responsibilities In Civil Matters - Ethics

Duty to the client: Specific Responsibilities in Civil Matters

• Must advise clients about ADR

  • A solicitor (barrister) must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation ASCR 7.2

• Civil Procedure Act 2010

  • s.7

    • (1): The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

    • (2) This may be achieved through (a) determination by the court; (b) agreement by the parties (c) any appropriate dispute resolution process as agreed to by the parties or ordered by the court.

  • s.8: Courts must give effect to this purpose:

    • When they exercise their powers

    • When they interpret their powers

  • One ‘paramount duty’ (s.16)

    • Each person to whom the overarching obligations apply has a paramount duty to the court to further the administration of justice in relation to any civil proceeding in which that person is involved…

    • The overarching obligations are subject to the paramount duty (s.12)

  • Ten ‘overarching obligations’ (ss.17-26)

    • Act honestly s17

    • Only make claims that have a proper basis, ie not frivolous or vexatious, as an abuse of process s18

    • Only take steps to resolve or determine the dispute s19

    • Cooperate with court and other parties in the conduct of the civil proceeding s20

    • Not engage in conduct that is, or likely to, mislead or deceive s21

    • Use reasonable endeavours to resolve the dispute by agreement unless it is not in the interests of justice OR the dispute is of such a nature that only judicial determination is appropriate s22

    • Narrow the issues in dispute unless it is not in the interests of justice OR the dispute is of such a nature that only judicial determination is appropriate s23

    • Ensure costs are reasonable and proportionate to the complexity and importance of the issues in dispute, and the amount in dispute s24

    • Minimise delay s25

    • Disclose the existence of documents critical to the dispute s26

      • Documents received under s26 are not to be used for any purpose other than the civil proceeding, breach = contempt of court s27

  • Application of the Obligations

    • The obligations apply to (s.10):

      • Parties

      • Legal practitioners, law practices and other representatives acting on behalf of a party

      • Expert witnesses

      • People providing financial or other assistance (insofar as they exercise control or influence over the conduct of the civil proceeding)

        • Includes insurers and litigation funders

    • The obligations apply to the conduct of any aspect of a civil proceeding of a court, including ADR (s.11)

  • Relationship with Other Duties

    • The overarching obligations do not override duties to the court (s.15)

    • But they do override any other inconsistent obligations (ss.12-13)

      • Includes obligation to act in accordance with client’s instructions (s.13)

  • Must not cause client to contravene

    • A lawyer or law practice must not, by their conduct, cause the client to contravene any overarching obligation (s.14)

  • If you are asked to do something that conflicts with one of the obligations, you must advise your client that:

    • The instruction conflicts with his/her own obligations under the Act

    • You are bound to ensure that s/he does not contravene those obligations

  • Remedies for Breach

    • The court may make any order it considers appropriate in the interests of justice, including orders (s.29):

      • For costs and expenses

      • That costs be payable and enforceable immediately

      • For compensation for financial loss

      • To remedy the breach

    • Lawyers may be required to personally pay any costs ordered immediately!

    • Applications for orders under s29 must be made in the court hearing the civil proceeding, in accordance with its rules, prior to the finalisation of the civil proceeding (excluding any period for appeals) s30. However can get an extension of time under if person was not aware of the contravention until after the end of the period s31(2). Extension of time can be sought by parties to proceeding or those with sufficient interest s31(3).

• Duties re communication to opponent

  • ASCR 22.1 A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise).

    • Where a document makes a number of representations that are not true Williams v CBA 1999

  • ASCR 22.2 A solicitor must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.

    • Where the other party is relying on information previously provided by your client, but is not longer accurate, leaving them to rely on the information can constitute misleading and deceptive conduct as well as professional misconduct Legal Services Commissioner v Mullins [2006]

  • ASCR 22.3 A solicitor will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.

  • ASCR 22.4 A solicitor must not confer or deal with any party represented by or to the knowledge of the solicitor indemnified by an insurer, unless the party and the insurer have signified willingness to that course.

  • ASCR 22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

    • 22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or

    • 22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

  • ASCR 22.6 A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

  • ASCR 22.7 A solicitor must not raise any matter with a court in connection with current proceedings on any occasion to which an opponent has consented under Rule 22.5.2 other than the matters specifically notified by the solicitor to the opponent when seeking the opponent’s consent.

  • ASCR 22.8 A solicitor must take steps to inform the opponent as soon as possible after the solicitor has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact and the grounds of the application and must try, with the opponent’s consent, to inform the court of that application promptly.

  • ASCR 30.1 A solicitor (barrister) must not take unfair advantage of the obvious error of another solicitor or other person, if to do so would obtain for a client a benefit which has no supportable foundation in law or fact

• Inadvertent disclosure of confidential information by opponent

  • ASCR 31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must:

    • 31.1.1 return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and

    • 31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.

  • ASCR.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must:

    • 31.2.1 notify the opposing solicitor or the other person immediately; and

    • 31.2.2 not read any more of the material.

    • 31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

• Barristers Duty to the opponent

  • LPCRB 48. A barrister must not knowingly make a false statement to an opponent in relation to the case (including its compromise)

  • LPCRB 49. A barrister must take all necessary steps to correct any false statement in relation to the case made by the barrister to an opponent as soon as possible after the barrister becomes aware that the statement was false.

  • LPCRB 50. A barrister will not have made a false statement to an opponent simply by failing to correct an error on any matter stated to the barrister by the opponent.

  • LPCRB 51. A barrister must not deal directly with a party other than his or her client who is legally represented unless:

    • (a) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom;

    • (b) the legal practitioner representing the party has previously consented; or

    • (c) the barrister believes on reasonable grounds that –

      • (i) the circumstances are so urgent as to require the barrister to do so; and

      • (ii) the dealing would not be unfair to the party.

  • LPCRB 52. A barrister must not confer with or deal directly with any party who is unrepresented unless the party has signified willingness to that course.

  • LPCRB 53. A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

    • (a) the court has first communicated with the barrister in...