Pursuant to section 223 Legal Profession Act 2007 (LPA), the Queensland Law Society invites comments and submissions regarding the following proposed changes to the Australian Solicitors’ Conduct Rules 2023 (ASCR):
ASCR Rule 8 Client instructions
The insertion of the underlined words:
8.1 A solicitor must only accept and follow a client’s lawful, proper and competent instructions.
The intention of the amendment to Rule 8 is to make explicit what is required by the principle that underpins this rule—that a solicitor must be satisfied (including before accepting instructions from a prospective client, or new instructions from an existing client) that the client’s instructions are for a lawful and proper purpose.
The need to make Rule 8 more explicit stems from the obligation in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)(AML/CTF) that a reporting entity (i.e. a solicitor or law practice that is a provider of a designated service) must undertake customer due diligence (CDD) in specified circumstances. There is a nexus between CDD and the ethical duty in Rule 8 to give effect to client instructions that are lawful, proper and competent.
ASCR Rule 13 Completion or termination of engagement
The following definition of just cause be inserted for the purposes of Rule 13.1.3:
just cause includes:
(a) instructions that require, or any circumstance where continuation of the engagement would cause, a solicitor to breach the solicitor’s ethical duties and professional responsibilities;
(b) any circumstance where a solicitor is no longer able to act in the client’s best interests;
(c) any circumstance where a client has not provided all information requested of them that is required to fulfil a solicitor’s statutory obligations.
The introduction of this definition is to clarify the circumstances that underpin the rule where a solicitor has “just cause” to cease acting and may terminate a retainer if continuing to act would involve a breach of ethical duties or professional responsibilities; if circumstances arise where the solicitor is unable to continue to act in the client’s best interests; or if a solicitor cannot meet their statutory obligations because the client has not provided the solicitor with required information.
The AML/CTF Act imposes CDD, reporting requirements and information disclosure obligations on a solicitor together with the need to ensure that they do not commit the offence of “tipping off” which prevents a solicitor from disclosing to the client the fact that an obligation to report a suspicious matter (SMRs) has arisen or has been lodged by the solicitor.
Where a solicitor initiates termination of a retainer for “just cause” under Rule 13.1.3, the rule requires the solicitor to give “reasonable notice” of the termination. In a situation where “just cause” arises the notice to the client may need to specify that termination of the retainer is immediate. What constitutes “reasonable notice” will depend on the factual circumstances of the relevant termination, but in cases such as these where a solicitor is bound to terminate a retainer immediately because continuing to act would involve a breach of the solicitor’s ethical duties or professional responsibilities, informing the client that the solicitor is terminating the retainer immediately is not unreasonable and should not breach the requirement under Rule 13.1.3 for “reasonable notice”.
ASCR Rule 29.13 Prosecutor’s Duties
Rule 29.13 states:
A solicitor who appears as counsel assisting an inquisitorial body such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or other statutory tribunal or body having investigative powers must act in accordance with Rules 29.1, 29.3 and 29.4 as if the body is a court referred to in those Rules and any person whose conduct is in question before the body is an accused referred to in Rule 29.
The Society proposes that the reference to ‘Criminal Justice Commission’ be updated to the ‘Crime and Corruption Commission’.
ASCR Rule 41 Mortgage Financing
The former Rule 41 provided:
41.1 A solicitor must not conduct a managed investment scheme or engage in mortgage financing as part of their law practice, except under a scheme administered by the relevant professional association and where no claim may be made against a fidelity fund.
The Uniform States under s 258 of the Legal Profession Uniform Law and Division 1 of Part 4.6 of the Legal Profession Uniform General Rules 2015, prohibits a solicitor from conducting a managed investment scheme or engaging in mortgage financing as part of their law practice. As a result, Rule 41 was removed in 2022 as it was considered no longer necessary.
Queensland does not have an equivalent statutory provision but s 228 LPA does allow the Society to provide a legal professional rule which may prohibit Australian legal practitioners and Australian-registered foreign lawyers from engaging in mortgage financing and activities and practices relating to mortgage financing. As a result, the Society would like to reintroduce a modified Rule 41:
A solicitor must not engage in mortgage financing as part of their law practice.
A copy of the changes to the ASCR can be accessed here. A full copy of the existing ASCR can be found here.
Comments and submissions can be emailed to ethics@qls.com.au, delivered to the QLS Ethics and Centre, GPO Box 1785, Brisbane Q 4001 or in person to Law Society House, 179 Ann St, Brisbane.
Submissions close on COB, Monday, 1 June 2026.
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