Conduct rules changes begin today

On 25 October 2023, the Queensland Law Society resolved, after a substantive period of consultation with the public, the profession and professional bodies, to make certain changes to the Australian Solicitor Conduct Rules 2012 (ASCR).

The majority of these changes brought the ASCR into line with the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 that were amended and came into force on 1 April 2022 in New South Wales and Victoria and in Western Australia on 1 July 2022.

These changes to the Queensland rules came into effect today by notification under s 225(1) of the Legal Profession Act 2007 and can be found here.

Queensland practitioners should note that not all of the changes were adopted primarily because such changes did not accord with specific state legislation in Queensland.

Rules 23.2, 29.7, 29.12.5 and the definitions of “Principal” and “Serious Criminal Offence” in the glossary remain the same as the original 2012 wording. The wording to the new rule 11A has been modified slightly compared to the Uniform Law Australian Solicitors’ Conduct Rules 2015.

The more substantive changes are:

• Rule 10.2 – Conflicts concerning former clients

Modification on “informed consent” by referencing the “disclosure and use of that information” of the former client rather than “acting” for the client.

• Rule 11 – Conflict of duties concerning current client

Rule 11.4 potentially now allows for solicitors to act for two or more clients in the same or related matters if they obtain informed consent that permits the disclosure and use of that confidential information for the benefit of the other client or the establishment of an effective information barrier to protect the confidential information of each client. Solicitors should also review the changes to rule 11.5.

• Rule 11A – Short-term legal assistance services (new)

This is a new rule and in particular has been introduced to assist those entities who provide specific short-term legal services such as duty lawyers or CLCs.

• Rule 12 – Conflict concerning a solicitor’s own interests

There has been a slight expansion of this rule to include a solicitor not doing anything calculated to disposing a client or third party to confer on the solicitor a benefit or reasonably anticipating that they may benefit in excess of their fair and reasonable remuneration of the legal services provided.

Rule 12.4.2 now includes not only a member of the solicitor’s immediate family but “a member of the immediate family of the solicitor’s spouse”.

• Rule 16 – Charging for document storage

The rule now specifically references electronic storage of client documents.

• Rule 20 – Delinquent or guilty clients

Rule 20.1.4 which required that the solicitor advise the client that “the court be informed of the lie, falsification or suppression and request authority to inform the court” has been removed. Please also note the change to rule 20.2.1 and the addition of:

• rule 20.2.4 which requires the “prosecution is put to proof on its case” and
• rule 20.2.8. which requires that a solicitor cannot continue to act if the client “insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence”.

• Rule 21 – responsible use of court process and privilege

This obligation has been extended to third parties and not just the client or solicitor. Rule 21.8 now specifically references “domestic or family violence” and a new rule 21.9 has been added qualifying the use of rule 21.8.

• Rule 22- communication with opponents

This rule requiring that solicitors must not knowingly make a false statement to an opponent has been expanded to “misleading” statements.

• Rule 27 – Solicitor as material witness in client’s case

The wording has changed slightly where there is now a positive emphasis that a solicitor “must not” continue to act if doing so would prejudice the administration of justice.

• Rule 31 – Inadvertent disclosure

An additional element has been added to rule 31.2 which requires that a solicitor must “not disclose or use the material, unless otherwise permitted or compelled by law”.

• Rule 39 – Legal and non-legal services

This rule was amended to extend the scope of the Rule to any entity or business that is affiliated to the business of the solicitor or law practice and not limited to just sharing a physical office.

• Rule 40 – Sharing receipts

The rule has been broadened to include any person “who has been found guilty of an indictable offence” (irrespective of whether this has involved dishonest conduct) or “who has had a guilty plea accepted in relation to an indictable offence that involved dishonest conduct, whether or not a conviction was recorded”. This reflects what is contained in s11 of the Legal Profession Act 2007 (Qld).

• Rule 41 – Mortgage Financing and Managed Investments

This rule has been removed. Practitioners are reminded that s112 of the Legal Profession Act 2007 (Qld) continues toprohibit legal practitioners from conducting a managed investment scheme in an incorporated legal practice.

• Rule 42 – Anti-discrimination and Harassment

There has been an expansion of this rule to include “any form of harassment” and conduct that has occurred in the course “of their profession”.

• Rule 43 – Dealing with the regulatory authority

A solicitor must now respond to their regulatory authority in a “timely” manner. The specific requirement that they “must respond within 14 days” has been removed.

• Glossary of Terms

The definition of “community legal service”, “document”, “office” and “sexual harassment” has been added. There have been changes to the definition of “client document”, “law practice”, “solicitor” and “workplace bullying”.

Should practitioners have any ethical queries, please call the QLS Ethics and Practice Centre on 3842 5843.