Introduction
While lawyers have a responsibility to serve the needs of their clients, they also have responsibilities to the courts and to the legal profession. A breach of these responsibilities could result in serious repercussions for the lawyers involved.
Conduct Rules and Disciplinary Matters
The Australian legal profession as a whole is regulated on a state and territory basis, although most of the rules are uniform across the country. Importantly, legal profession rules are binding on Australian legal practitioners and Australian-registered foreign lawyers to whom they apply.
In NSW, the main sources governing the way solicitors should conduct themselves include the Legal Profession Uniform Law 2014 (NSW) (“LPUL”), the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Conduct Rules”), the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 and the Law Society Council’s Statement of Ethics.
The Conduct Rules set out that 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, and
- Avoid any compromise to their integrity and professional independence.
Conduct which falls short of this standard may be considered in a disciplinary matter before the Office of the Legal Services Commissioner. Such conduct could amount to unsatisfactory professional conduct or professional misconduct, depending on the gravity of the lawyer’s actions.
Unsatisfactory professional conduct is defined in Section 296 of the LPUL as:
“conduct of a lawyer [whether consisting of an act or omission]…that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”.
This could include threatening or abusive behaviour, poor advice and representation, serious delay or a minor breach of the Conduct Rules.
Professional misconduct, on the other hand, is defined in Section 297 of the LPUL as either:
“unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”,
or “conduct…whether occurring in connection with the practice of law…or occurring otherwise…that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”.
This could include gross overcharging, conflicts of interest, misleading or dishonest conduct in or outside Court, or even being convicted of a serious criminal offence or a tax offence.
Case Study in Family Law
In the case of Council of the Law Society of New South Wales v Searle [2019] NSWCATOD 70, the NSW Civil and Administrative Tribunal found a family law practitioner guilty of unsatisfactory professional conduct and professional misconduct.
In this case, the Law Society made an application to the Tribunal for Ms Searle, who was previously a councillor of the Law Society and chairman of the Family Law Committee, to be removed from the Roll of Legal Practitioners and pay a substantial fine due to her conduct in Family Court proceedings.
In the proceedings in question, Ms Searle was acting on behalf of a wife against her husband. During the course of proceedings, she attached without prejudice correspondence (both emails and letters) to an affidavit. Without prejudice correspondence is correspondence containing an offer of compromise and disclosing it to the Court in this manner is in breach of Section 117C of the Family Law Act 1975 (Cth), which states that settlement negotiations and offers are not to be disclosed to the Court except for the purposes of consideration by the court as to orders about costs. The Tribunal found that this amounted to unsatisfactory professional conduct.
Further, during settlement negotiations, Ms Searle threatened to use material that may lead to criminal proceedings against the husband – in a word, blackmail. The material referred to was photographs of the husband which were supposedly kept “in his home office, of his stepdaughter aged 11 nude from the waist up and sitting on his lap and another of her aged between 17 and 19 in sexy underwear”. It was alleged that Ms Searle threatened that including the photos in evidence should the matter continue could mean that the husband would “face criminal charges for child sexual abuse”. Ms Searle conceded and the Tribunal agreed that this amounted to professional misconduct.
Despite the seriousness of her actions, the Tribunal considered Ms Searle’s previous history and experience as a family law practitioner, and the various character references that were called upon, and found that “the solicitor is presently fit to practice, and it would not be appropriate to recommend that her name be removed from the roll”. Nonetheless, the Tribunal recognised that:
“the significance of the misconduct needs to be acknowledged, and orders made to protect the public against further misconduct by the practitioner, to protect the public from similar defaults by other practitioners, to publicly mark the seriousness of what the practitioner has done, and to ensure that the high standards demanded of the profession are maintained”.
Accordingly, Ms Searle was reprimanded for findings of unsatisfactory professional conduct and professional misconduct, fined $12,000, ordered to participate in a six-week Legal Ethics course and ordered to pay the costs for the Law Society who brought the proceedings.
Conclusion
Lawyers are held to the highest standard by both the profession and the courts. Failure to adhere to the ethical standards of the profession and the various conduct rules could result in adverse findings against a lawyer and substantial repercussion, including but not limited to removal of the lawyer’s name from the roll, a reprimand or a fine of up to $100,000. In family law matters in particular, it is important for lawyers to maintain a high standard of conduct so as to not impact their legal practice or their client’s case through their actions.
At Frank Law, one of our four pillars is Integrity. Our family lawyers appreciate the duties we have to the court, to the legal profession and to our clients, and hold to them in the course of conduct.
This is not legal advice.
Photo by Markus Spiske on Unsplash
