Australian Solicitors’ Conduct Rules
The Australian Solicitors Conduct Rules (ASCR) are a collaboration by the state and territory law societies and other constituent professional bodies of the Law Council on an agreed set of professional conduct rules for solicitors in Australia. This work undertaken by the Law Council’s Professional Ethics Committee, with the support of the Law Council Secretariat.
The ASCR are a statement of professional and ethical obligations derived from solicitors’ duties as an officer of the court, the common law and equity, legislation, and the collective judgment of the legal profession about standards of conduct to be “observed or approved of by members of the profession of good repute and competency”. The Rules are an exercise of self-regulation: firstly, by the profession as a whole, as statements of agreed standards of the profession; and secondly, by each member of the profession as a commitment to their peers, their clients, the courts, and to the broader public interest in the rule of law and administration of justice.
The professional commitment to abide by the conduct rules is reinforced by State and Territory legislation, which sets out the authority and processes for developing professional conduct rules, and the formal requirements for those rules to be “made” or become binding under the legal profession law of each State and Territory.
The ASCR were first endorsed by Law Council Directors in June 2011. They were adopted as the professional conduct rules for solicitors in South Australia from July 2011 as the Law Society of South Australia, Australian Solicitors’ Conduct Rules, followed by Queensland in June 2012, where they were adopted as the Australian Solicitors Conduct Rules.
The Rules were adopted in the Australian Capital Territory from 1 January 2016 as the Legal Profession (Solicitors) Conduct Rules 2015 and in Tasmania from 1 October 2020 as the Legal Profession (Solicitors’ Conduct) Rules 2020.
Legal Profession Uniform Law
Section 427(2) of the Legal Profession Uniform Law empowers the Law Council to develop proposed Uniform Rules for Legal Practice, Continuing Professional Development and Legal Profession Conduct so far as they apply or relate to solicitors. In developing these Rules the Law Council consults with the Legal Services Council and the Commissioner for Uniform Legal Services Regulation, together with Committees of the Council and designated regulatory authorities, as required, in the Uniform Law jurisdictions. In addition, the Law Council undertakes public and targeted consultations on proposed Rules.
The Legal Profession Uniform Law commenced on 1 July 2015 in New South Wales and Victoria, and on 1 July 2022 in Western Australia. The ASCR first came into effect in New South Wales and Victoria from 1 July 2015 as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, followed by Western Australia from 1 July 2022.
Reviews of the ASCR
The Law Council periodically reviews of the Australian Solicitors’ Conduct Rules to ensure that the rules remain current, appropriate and responsive to new and emerging developments and expectations in legal practice and professional obligations.
Following endorsement by the Law Council 2011, a period of time was allowed for the ASCR to be adopted and operate in practice before undertaking any substantive reviews. The ASCR were updated in March and April ASCR, ahead of them being formally made as Rules under the Uniform Law, when minor technical changes were made, apart from the omission of the former Rule 29.12.5.
On 1 February 2018, the Law Council began the first comprehensive review of the ASCR. A copy of the Law Council’s Consultation Discussion Paper on the Review is available here.
The Consultation Paper invited submissions on 111 matters, touching upon 37 of the 43 then current Rules; together with 4 of the definitions in the Glossary and 5 potential new Rules. The Law Council received 45 written submissions and responses to the Consultation Paper. In addition to the 111 matters canvassed in the Consultation Paper, an additional 35 matters were raised in submissions and during the deliberations of the Professional Ethics Committee.
In accordance with the co-regulatory objective of the Uniform Law, the Law Council undertook further consultations and discussions with the Legal Services Council on the proposed changes arising out of the Review, and in October 2020 the Law Council and Legal Services had settled on the final form of changes to the Rules.
Short-term legal assistance services
A significant issue arising in 2018-2020 review of the ASCR was the need to clarify the application of existing ethical principles relating to avoiding conflicts of interest (between current clients, or between current and former clients) when a solicitor or law practice provides short-term legal assistance services. Short-term legal assistance refers to legal services provided on a one-off basis by legal assistance services such as legal aid commissions and community legal services, or by the pro bona services of law firms.
On 6 November 2020 the Law Council released a Public consultation paper on short-term legal assistance services. A copy of the Consultation Discussion Paper is here.
Following those public consultations the Law Council adopted a new rule – Rule 11A which is incorporated in the current ASCR.
Further Review of Rule 42
Subsequent to the ASCR Review, further amendments were proposed in respect of Rule 42 (Anti- Discrimination and Harassment). This further review of Rule 42 was a result of the Law Council’s July 2020 National Roundtable Addressing Sexual Harassment and the subsequent consultations informing the Law Council’s National Action Plan to Reduce Sexual Harassment in the Australian legal profession (NAP).
A copy of the Consultation Discussion Paper is here.
Following those public consultations the Law Council adopted a revised version of Rule 42 which is incorporated in the current ASCR. The purpose of the revision is to:
- clarify that Rule 42 applies to conduct that occurs in any setting connected with legal practice or the legal profession;
- ensure that professional disciplinary bodies can appropriately respond to matters concerning sexual harassment as either unsatisfactory professional conduct or professional misconduct; and
- express the profession’s collective view that discrimination and harassment (and, in particular, sexual harassment) are unacceptable conduct when occurring in any situation connected to legal practice or the legal profession.
Further Review of Rule 38
The Law Council has initiated a review of ASCR Rule 38 – Returning Judicial Officers following concerns raised after the Rule was revised during the 2018-2020 Review about its application to former court officers such as registrars, and former members of tribunals, particular where service as a court officer or tribunal member was undertaken under a fixed, short-term, part-time or sessional basis.
The Law Council anticipates releasing a Consultation Discussion Paper in early 2024.
The current version of the Australian Solicitors Conduct Rules developed by the Law Council is here.
The version applicable in Uniform Law jurisdictions (New South Wales, Victoria and Western Australia) is here.
For versions in force in other jurisdictions it will be necessary to contact the local law society.
Commentary to the Australian Solicitors' Conduct Rules
Following the introduction of the ASCR in 2011 the Law Council prepared and published a Commentary for the legal practitioners intended to provide additional information and guidance in understanding how particular Rules might apply in some situations. A copy of the current Commentary is available here.
Consultations during the 2018-2020 Review called for an expanded Commentary, with more detailed explanations of the principles underpinning the rules, and how particular Rules might apply in a variety of situations encountered in legal practice. The Law Council has also been mindful that the Commentary is of interest and usefulness to a broader range of people and organisations than only members of the legal profession. Work on the revised Commentary is nearing completion.
It should be noted that the Commentary does not constitute part of, or in any way constitute additional codification of, the Rules, nor is the Commentary intended to be the definitive or sole source of information about the Rules and their application. Practitioners are especially reminded that extensive information and guidance on ethical issues encountered in legal practice is available from their local Law Society.