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Task: Describe the Australian Solicitors Conduct Rules?
The Australian lawyers provide legal services to a variety of clientele in a variety of settings. The Australian Solicitor Conduct Rules are applicable to all solicitors, regardless of their involvement with community centres, legal aid groups, private practise, in-house legal counsel, government law, or volunteering. According to the Australian Solicitor Conduct Rules, a solicitor shall never work with or for the advantage of another party who is being represented by or paid by an insurer in the solicitor's knowledge, unless both the party and the insurer have indicated their willingness to do so. All Australian solicitors must abide by these regulations in order to practise their profession. All Australian states and territories have accepted the guidelines to guarantee that all Australian solicitors are committed to and bound by a common set of professional duties and ethical standards when working with clients, courts, other attorneys, regulators, and other connected parties. The goal of introducing these regulations is to help the acting solicitor perform to the best of their ability within a regulated environment. These regulations are written in a way that makes it easy to determine whether a lawyer has participated in improper behaviour or professional misconduct. The Australian Solicitors' Conduct Rules were initially resolved by the Law Council in June 2011. In March 2015 and April 2015, the Law Council of Australia accepted a number of minor modifications to the rules. Any violation of the regulations by a solicitor may be considered professional misconduct or unsatisfactory professional misconduct. However, the appropriate regulating authority may decide to discipline the solicitor in response to this; no other party may impose them (Doulman Vs ACT Electronic Solutions Pty limited & Anor, 2011). If any common law or law prescribes higher criteria than these regulations, a solicitor is required to follow them. Similar to this, if a rule has higher requirements than the common law or legislation, it needs to be compiled. The acting solicitor must be aware of these additional regulations.
A counsel has a fundamental obligation to the Court and the government, according to Rule 3. Additionally, the rule states that if there is any inconsistency, the duty extends to the extent of that inconsistency. Although Rule 4 stipulates the core ethical obligations of a solicitor. According to Rule 4.1, the lawyer must act in the client's best interests because the client is being represented by the lawyer. When responding to inquiries about the legal profession, the solicitor must maintain their integrity and politeness. The solicitor should offer knowledgeable and thorough legal services. These services should, however, be provided as quickly as is practical given the situation. While Rule 4.1.4 states that a solicitor may not participate into any agreement that jeopardises their professional independence and integrity. According to Rule 4.1.5, solicitors are required to abide by all applicable laws and regulations (Bufalo Corporation Pty Ltd Vs Lend Lease Primelife Ltd. 2010).
The relationships between a solicitor and their clients are outlined in Rules 7 to 16. Communication of advice, client instructions, confidentiality, conflicts with current clients or former clients, conflicts with a solicitor's own interests, completion or termination of the engagement, client documents, liens over crucial documents, and charging for document storage are a few examples of these. A solicitor is required by Rule 8 to abide by the client's legal, competent, and appropriate directions. According to the common law presumption, every adult has the capacity to make an independent decision, excepting cases of old age, mental disability, suspicion of fraud, having the power to exert undue influence, incapacity, or situations in which the client is unable to communicate. The presumption of legal ability must exist in the client, and the lawyers must be persuadably convinced that the client is mentally capable of giving the instructions. The lawyer shall refuse to represent a client whose mental health the lawyer finds to be unsatisfactory. The issue of incompetence and the solicitor's liability under negligence will arise in the event of any failure or carelessness on the side of the solicitor (Walker Vs. D'Alessandro, 2010). In accordance with Rule 9.2.3, a solicitor who is uncertain about a client's ability to give suitable directions or a response in a certain circumstance may seek confidential guidance on the ethical or legal duty of the solicitor.
The solicitors must exercise the utmost caution when using the court's procedures and privileges, according to Rule 21. According to Rule 21.2, the solicitor must make sure that the proofs that are already in his possession can properly support the accusations that he has made against any person. Without altering the ethical norms, the Barrister's Rule, 2011 included certain new rules, including as Rule 12. This is necessary for the case's robust progression and should also ensure that the case or claims are not being presented solely to harass or shame an individual (Pont, 2013). This rule acknowledges the importance of barristers in the administration of justice. The Advocacy Rules are introduced with the goal of maintaining communication between solicitor advocates and the bar. Rule 27.1 makes it clear that the solicitor may not represent the client at the hearing if doing so could require the solicitor to provide material for his testimony. While the same conditions as Rule 27.1 apply, Rule 27.2 allows the solicitor to present the client but not as the client's attorney as long as it doesn't interfere with the administration of justice.
A lawyer has obligations to the court, such as acting independently when it is in the best interest of the administration of justice. A barrister has a duty not to intentionally or unintentionally mislead the court (Pont, 2013). If the barrister learns that a statement of this nature has been made in error, they must immediately take all necessary action to rectify the situation. The regulation also states that the barrister must inform the adversaries. If an ex-parte application is to be granted relief, the barrister must reveal all the facts and legal issues that are in his or her knowledge. Because the underlying legal issues in such a case are not shielded by the legal profession and because there are plausible grounds for the barrister to think that granting the relief is appropriate.
A barrister is also required to fulfil obligations to clients, which are outlined in Rules 37–40. In accordance with Rule 37, a barrister must diligently and fearlessly protect the client's interests. A barrister is required by Rule 38 to tell the client of the alternatives to a fully disputed adjudication. According to Rule 39, a lawyer must try his utmost to help a client understand their rights and responsibilities in a particular case as well as the issues that are at stake. In accordance with Rule 40, the attorney must inform the client (who has been accused of a crime) of any benefit, method, or practise made possible by the applicable body of legislation. The barrister is also required to use the legal system and privileges honestly and responsibly. The Rules 59-67 define these responsibilities.
G E Dal Pont, 2013, Lawyers Professional Responsibility, 5th ed.
Doulman v ACT Electronic Solutions Pty Limited & Anor  FMCA 232
Australian Solicitors Conduct Rules, 2012
Bufalo Corporation Pty Ltd v Lend Lease Primelife Ltd  VSC 672
Walker v D’Alessandro  VSC 15