As lawyers, we have duty to the court above and beyond the duties we have to act in the best interests of our clients. As an extension of that duty, when acting for our clients, we must not act as a mere mouthpiece for our clients and we must exercise forensic judgement which is consistent with our paramount duty to the Court.
This means, for example:
- Giving advice to clients on the prospects of their case having regard to the evidence;
- Putting questions to the client to forensically analyse an allegation and the evidence supporting it, before filing;
- Not repeating every allegation of a client in a case without exercising forensic judgment as to the truth of it;
- Not filing a case which is baseless and has no prospects of success;
- Not giving clients false hope about their prospects;
- Not making wild allegations without evidence;
- Not filing a case which is misleading as to the facts which the lawyer knows to be true.
Acts by a solicitor which fall short of the above may amount to unsatisfactory professional conduct or professional misconduct with regard to the filing of a case which appears to fall short of the standard of competence and diligence that members of the public, including the litigants being represented, are entitled to reasonably expect, by a reasonably competent solicitor: s418 and s419 Legal Profession Act 2007.
What are the fundamental duties of solicitors when acting for a client
The fundamental duties of a solicitor when acting for a client are set out in the Australian Solicitor Conduct Rules (ASCR).
Rule 3 of those rules make clear that one of the primary duties of a solicitor, who is an officer of the court, is a duty to the court and the administration of justice. That duty is paramount and prevails to the extent of any inconsistency over other duties.
In other words, that fundamental duty subsumes all other ethical duties, such as the duty of the solicitor to act in the best interests of the client and to deliver legal services competently and diligently: rule 4 ASCR.
Rule 17 provides that a solicitor representing a client must not act as a mere mouthpiece for a client and must exercise forensic judgement called for during the case independently, after appropriate consideration of the client’s instructions. A solicitor does not breach their duty to the client nor will they have failed to give appropriate consideration to a client’s instructions by choosing to exercise forensic judgement, contrary to the client’s instructions so as to:
- confine any hearing to those issues which the solicitor believes to be the real issues;
- present the client’s case as quickly and simply as may be consistent with its robust advancement; or
- inform the court of any persuasive authority against the client’s case.
Rule 18 provides that a solicitor must not mislead the court and must correct any misleading statement as soon as possible after the solicitor becomes aware the statement is misleading.
Rule 21 provides that decisions of the solicitor should be justified on the material available. A solicitor should not allege any fact, and particular emphasis is given in relation to allegations of fraud or serious misconduct against any person, unless the solicitor believes on reasonable grounds that the factual material available provides a proper basis to do so.
Rule 32 provides that a solicitor must not make an allegation against another legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is genuine and the solicitor believes on reasonable grounds that the factual material available provides a proper basis to do so.
Legal Services Commission & Cooper – acting as a mere mouthpiece
In LSC & Cooper, the Legal Services Commission charged the Respondent for filing a baseless notice of child abuse & family violence.
The allegation in question by the Father, was the Mother’s failure to maintain breaks in the car in which they transported their child.
The LSC brought proceedings against the Respondent for failing to exercise forensic judgement independently, by causing notice of abuse to be filed on behalf of his client, the Father, in circumstances where he advised his client that he did not think the allegation amounted to child abuse, but nonetheless brought proceedings, filed a notice of abuse, and later withdrew those proceedings
The evidence during the proceedings was that the Respondent advised his client that not fixing the breaks did not in his view amount to abuse but nonetheless prepared a notice of abuse & family violence on behalf of his client saying that the mother’s failure to repair breaks in which she transported the child after request of the father not to transport the child in that car until the breaks fixed, was abuse.
Upon application by the Mother, an order made by the Court that the Notice of Abuse be withdrawn by agreement with the Father’s solicitor. A costs order was made in favour of the mother.
The conduct in the case was unprecedented as there was no allegation that the Respondent didn’t attend properly to his client’s case, rather that he was overtly attentive to his client to the detriment of his duty to the court.
The Court noted that the primary duty of a practitioner is always to the court and to the administration of justice and as required by the Australian Solicitor Conduct Rules 2012 (Qld), a solicitor must not act as a mere mouthpiece for a client & must exercise forensic judgement called for during a case independently.
The Respondent failed to exercise his forensic judgement by filing a baseless notice of child abuse, putting the Mother to the expense of defending it and the court to the trouble and expense of dealing with it.
The LSC’s submission was that the Respondent’s conduct breached the respondent’s duty to the court as well as his duty to exercise his forensic judgement and to act independently of his client pursuant to rule 3 and rule 18 of the ASCR. The LSC alleged that the Respondent’s conduct fell into the more serious category of professional misconduct.
The Respondent conceded that his conduct met the standard under s418 of LPA of unsatisfactory professional conduct (conduct that falls short of the standard of competence & diligence that a member of the public is entitled to expect of a reasonably competent aus legal practitioner) but not professional misconduct under s419 (unsatisfactory professional conduct which involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence).
The Court considered the following in making its decision:
- ‘failure to maintain reasonable standards of competence or diligence’ is language used in the charges is common to both unsatisfactory professional conduct and professional misconduct
- The test for professional misconduct is whether the conduct violates to a substantial degree the standard of professional conduct observed or approved by members of the profession of good repute & competency: Adamson & QLS
- As no evidence was filed, there was no factual basis upon which the application to be determined was limited to what is admitted in the discipline application
- The practitioner breached his duty to the court and the administration of justice and failed to exercise forensic judgement consistent with his paramount duty to the court and he was a mouthpiece for his client by advancing a case which he knew was hopeless/unarguable.
- The respondent admitted to advising his client that not fixing breaks did not in his view amount to child abuse, and set out the definition of child abuse which does not include fixing breaks, admitted that within a few weeks and then withdrew his client’s notice and the case was dismissed with costs. Held conduct is UPC.
- Whether the conduct is unsatisfactory professional conduct or professional misconduct turns to facts of the case and the difference between the two is a matter of degree.
- The question is whether the conduct was sufficiently substantial or consistent so as to be professional misconduct.
- Held: the respondent’s conduct was not consistent or repeated. It related to conduct on 1 occasion, for 1 client, for a short duration. He made an error, realised the error and corrected it within a few weeks, therefore it was not a consistent failure or sufficiently substantial failure so as to constitute professional misconduct.
- The penalty was a public reprimand, $2,500 fine and a costs order.
Case Study: Percival & Percival (No 3)  – filing of a case without evidence, no prospects and with scandilous allegations
The original judgement of this matter was Percival & Percival (No 2) , involved an order dismissing an application in the Federal Circuit & Family Court of Australia, to appoint a substitute party for the deceased applicant, as well as dismissing the substantive proceeding. The ground for dismissal was that there were no reasonable prospects of success.
The original judgement addressed a possible failure by the solicitor for the applicant to uphold his duties under the Legal Profession Act 2007 such that, as stated by the Court, “the acts here may amount to unsatisfactory professional conduct with regard to the filing of a case which appears to fall short of the standard of competence and diligence that members of the public, including the litigants being represented, are entitled to reasonably expect, by a reasonably competent solicitor.”
This judgement, being Percival & Percival (No 3), was for the purpose of hearing submissions and determining whether the solicitor should be referred to the Legal Services Commission.
The relevant conduct of the Solicitor which caused the Court concern involved the swearing of affidavits involving wild, scandalous and fanciful allegations which impugned the reputations of various people, without evidence supporting such claims.
Judge Coates ultimately referred the solicitor to the Legal Services Commission stating as follows:
“Unfortunately it seems necessary to state that if there is no evidence, then there is no evidence.
Allowing a potential litigant to make any and every wild statement that comes to mind is not the role of the practitioner and is in reality anathema to the role of the legal practitioner, who carries a very heavy responsibility to ensure that far reaching legal powers are not exercised needlessly or on an uninformed basis.
Even when supplied with documents secured by the husband in his response documents, as stated in the judgment, documents not helping her case, it appears that no consideration was given to withdrawing the wife’s case.
Instead her case continued to make serious allegations of people including a real estate agent, a women not named but identified as the husband’s girlfriend, a woman by the name of Ms L and solicitors previously involved in mediation proceedings, such allegations claiming illegal acts such as fraud, break and enter, stealing and possibly acts amounting to the perversion of justice when touching on the mediation proceedings.
The claims cannot be accepted as merely the context or narrative of the dispute.
At all times since the judgment was delivered, the solicitor has been on notice that the court had grave concerns about his acts and omissions with regard to representing both the applicant and the applicant for substitution.
Knowledge of the Australian Solicitors Conduct Rules 2012 would have suggested to the solicitor that the shortcomings pointed out as to conduct were issues about which the court sought submissions and explanation.
Rule 3 and 4 of those rules make clear that the fundamental duties of the solicitor – the officer of the court – encompass the duty to the court and the administration of justice and that such duty is paramount and prevails to the extent of any inconsistency over other duties.
In other words, that fundamental duty subsumes other ethical duties, such as serving the best interests of the client and to deliver legal services competently and with diligence.
Even a glance at those rules by way of refresher, particularly Rule 21 and 32, remind practitioners that allegations are not to be made suggesting fraud or serious misconduct or similar against another practitioner, without reasonable grounds to support a proper basis for making such allegations. Mere allegations are not a reasonable ground. Having some evidence may be a reasonable ground.
The materials referred to by the solicitor and the case put forward by counsel did not address the possibility that the conduct referred to in the judgment was that which may fall short of the standard of competence and diligence that members of the public are entitled to expect of a reasonably competent practitioner, both under the rules and as developed over a long period of time by the courts and the professional societies for solicitors.
If it did, then I would have expected to see evidence of remedial actions taken by the solicitor, in whatever form that may occur, to give the public confidence that the court will ensure all rights and privileges encompassed by the legal system are upheld.
In the absence of any useful submissions explaining what appears to be conduct within the meaning of ss.418 or 419 of the Legal Profession Act, conduct which affects unknowing, unprepared and very possibly naive litigants, as well as diverting valuable court time in dealing with such conduct, I will refer the relevant material to the Legal Services Commission of Queensland, such to include the judgments and all filed documents and transcripts.”
What have we learnt about the duty to exercise forensic judgement?
Solicitors must take care not to put every allegation their client makes in a letter or court document. Rather, it is incumbant on each solicitor to exercise forensic judgement, after appropriate consideration of the client’s instructions. This may at times mean advising a client that an allegation should not be made where there is a lack of evidence to support it or where, even if the allegation is found to be true, the case has no prospects of success.