Advocacy and litigation
17Independence—avoidance of personal
bias
17.1
A solicitor representing a client in a matter
that is before the court must not act as the mere mouthpiece of the client or
of the instructing solicitor (if any) and must exercise the forensic judgments
called for during the case independently, after the appropriate consideration
of the client’s and the instructing solicitor’s instructions where
applicable.
17.2
A solicitor does not breach the solicitor’s
duty to the client, and will not have failed to give appropriate consideration
to the client’s or the instructing solicitor’s instructions,
simply by choosing, contrary to those instructions, to exercise the forensic
judgments called for during the case so as to—
17.2.1
confine any hearing to those issues which the
solicitor believes to be the real issues,
17.2.2
present the client’s case as quickly and
simply as may be consistent with its robust advancement,
or
17.2.3
inform the court of any persuasive authority
against the client’s case.
17.3
A solicitor must not make submissions or express
views to a court on any material evidence or issue in the case in terms which
convey or appear to convey the solicitor’s personal opinion on the
merits of that evidence or issue.
17.4
A solicitor must not become the surety for the
client’s bail.
rule 17: Am 2022
(34), Sch 1[21].
18Formality before the court
18.1
A solicitor must not, in the presence of any of
the parties or solicitors, deal with a court on terms of informal personal
familiarity which may reasonably give the appearance that the solicitor has
special favour with the court.
19Duty to the court
19.1
A solicitor must not deceive or knowingly or
recklessly mislead the court.
19.2
A solicitor must take all necessary steps to
correct any misleading statement made by the solicitor to a court as soon as
possible after the solicitor becomes aware that the statement was
misleading.
19.3
A solicitor will not have made a misleading
statement to a court simply by failing to correct an error in a statement made
to the court by the opponent or any other person.
19.4
A solicitor seeking any interlocutory relief in
an ex parte application must disclose to the court all factual or legal
matters which—
19.4.1
are within the solicitor’s
knowledge,
19.4.2
are not protected by legal professional
privilege, and
19.4.3
the solicitor has reasonable grounds to believe
would support an argument against granting the relief or limiting its terms
adversely to the client.
19.5
A solicitor who has knowledge of matters which
are within Rule 19.4—
19.5.1
must seek instructions for the waiver of legal
professional privilege, if the matters are protected by that privilege, so as
to permit the solicitor to disclose those matters under Rule 19.4,
and
19.5.2
if the client does not waive the privilege as
sought by the solicitor—
(i)
must inform the client of the client’s
responsibility to authorise such disclosure and the possible consequences of
not doing so, and
(ii)
must inform the court that the solicitor cannot
assure the court that all matters which should be disclosed have been
disclosed to the court.
19.6
A solicitor must, at the appropriate time in the
hearing of the case if the court has not yet been informed of that matter,
inform the court of—
19.6.1
any binding authority,
19.6.2
where there is no binding authority, any
authority decided by an Australian appellate court, and
19.6.3
any applicable
legislation,
known to the solicitor and which the solicitor has
reasonable grounds to believe to be directly in point, against the
client’s case.
19.7
A solicitor need not inform the court of matters
within Rule 19.6 at a time when the opponent tells the court that the
opponent’s whole case will be withdrawn or the opponent will consent to
final judgment in favour of the client, unless the appropriate time for the
solicitor to have informed the court of such matters in the ordinary course
has already arrived or passed.
19.8
A solicitor who becomes aware of matters within
Rule 19.6 after judgment or decision has been reserved and while it remains
pending, whether the authority or legislation came into existence before or
after argument, must inform the court of that matter by—
19.8.1
a letter to the court, copied to the opponent,
and limited to the relevant reference unless the opponent has consented
beforehand to further material in the letter, or
19.8.2
requesting the court to relist the case for
further argument on a convenient date, after first notifying the opponent of
the intended request and consulting the opponent as to the convenient date for
further argument.
19.9
A solicitor need not inform the court of any
matter otherwise within Rule 19.8 which would have rendered admissible any
evidence tendered by the prosecution which the court has ruled inadmissible
without calling on the defence.
19.10
A solicitor who knows or suspects that the
prosecution is unaware of the client’s previous conviction must not ask
a prosecution witness whether there are previous convictions, in the hope of a
negative answer.
19.11
A solicitor must inform the court of any
misapprehension by the court as to the effect of an order which the court is
making, as soon as the solicitor becomes aware of the
misapprehension.
19.12
A solicitor must alert the opponent and if
necessary inform the court if any express concession made in the course of a
trial in civil proceedings by the opponent about evidence, case-law or
legislation is to the knowledge of the solicitor contrary to the true position
and is believed by the solicitor to have been made by
mistake.
rule 19: Am 2022
(34), Sch 1[22].
20Delinquent or guilty clients
20.1
A solicitor who, as a result of information
provided by the client or a witness called on behalf of the client, learns
during a hearing or after judgment or the decision is reserved and while it
remains pending, that the client or a witness called on behalf of the
client—
20.1.1
has lied in a material particular to the court or
has procured another person to lie to the court,
20.1.2
has falsified or procured another person to
falsify in any way a document which has been tendered, or
20.1.3
has suppressed or procured another person to
suppress material evidence upon a topic where there was a positive duty to
make disclosure to the court,
must—
20.1.4
20.1.5
refuse to take any further part in the case
unless the client authorises the solicitor to inform the court of the lie,
falsification or suppression and must promptly inform the court of the lie,
falsification or suppression upon the client authorising the solicitor to do
so but otherwise may not inform the court of the lie, falsification or
suppression.
20.2
A solicitor whose client in criminal proceedings
confesses guilt to the solicitor but maintains a plea of not
guilty—
20.2.1
may, subject to the client accepting the
constraints set out in Rules 20.2.2–20.2.8, but not otherwise, continue
to act in the client’s defence,
20.2.2
must not falsely suggest that some other person
committed the offence charged,
20.2.3
must not set up an affirmative case inconsistent
with the confession,
20.2.4
must ensure that the prosecution is put to proof
on its case,
20.2.5
may argue that the evidence as a whole does not
prove that the client is guilty of the offence charged,
20.2.6
may argue that for some reason of law the client
is not guilty of the offence charged,
20.2.7
may argue that for another reason not prohibited
by Rule 20.2.2 or 20.2.3 the client should not be convicted of the offence
charged, and
20.2.8
must not continue to act if the client insists on
giving evidence denying guilt or requires the making of a statement asserting
the client’s innocence.
20.3
A solicitor whose client informs the solicitor
that the client intends to disobey a court’s order must—
20.3.1
advise the client against that course and warn
the client of its dangers,
20.3.2
not advise the client how to carry out or conceal
that course, and
20.3.3
not inform the court or the opponent of the
client’s intention unless—
(i)
the client has authorised the solicitor to do so
beforehand, or
(ii)
the solicitor believes on reasonable grounds that
the client’s conduct constitutes a threat to any person’s
safety.
rule 20: Am 2022
(34), Sch 1[23] [24].
21Responsible use of court process and
privilege
21.1
A solicitor must take care to ensure that the
solicitor’s advice to invoke the coercive powers of a
court—
21.1.1
is reasonably justified by the material then
available to the solicitor,
21.1.2
is appropriate for the robust advancement of the
client’s case on its merits,
21.1.3
is not given principally in order to harass or
embarrass a person, and
21.1.4
is not given principally in order to gain some
collateral advantage for the client or the solicitor or a third party out of
court.
21.2
A solicitor must take care to ensure that
decisions by the solicitor to make allegations or suggestions under privilege
against any person—
21.2.1
are reasonably justified by the material then
available to the solicitor,
21.2.2
are appropriate for the robust advancement of the
client’s case on its merits, and
21.2.3
are not made principally in order to harass or
embarrass a person.
21.3
A solicitor must not allege any matter of fact
in—
21.3.1
any court document settled by the
solicitor,
21.3.2
any submission during any
hearing,
21.3.3
the course of an opening address,
or
21.3.4
the course of a closing address or submission on
the evidence,
unless the solicitor believes on reasonable grounds that
the factual material already available provides a proper basis to do
so.
21.4
A solicitor must not allege any matter of fact
amounting to criminality, fraud or other serious misconduct against any person
unless the solicitor believes on reasonable grounds that—
21.4.1
available material by which the allegation could
be supported provides a proper basis for it, and
21.4.2
the client wishes the allegation to be made,
after having been advised of the seriousness of the allegation and of the
possible consequences for the client and the case if it is not made
out.
21.5
A solicitor must not make a suggestion in
cross-examination on credit unless the solicitor believes on reasonable
grounds that acceptance of the suggestion would diminish the credibility of
the evidence of the witness.
21.6
A solicitor may regard the opinion of an
instructing solicitor that material which is available to the instructing
solicitor is credible, being material which appears to the solicitor from its
nature to support an allegation to which Rules 21.3 and 21.4 apply, as a
reasonable ground for holding the belief required by those Rules (except in
the case of a closing address or submission on the
evidence).
21.7
A solicitor who has instructions which justify
submissions for the client in mitigation of the client’s criminality
which involve allegations of serious misconduct against any other person not
able to answer the allegations in the case must seek to avoid disclosing the
other person’s identity directly or indirectly unless the solicitor
believes on reasonable grounds that such disclosure is necessary for the
proper conduct of the client’s case.
21.8
Without limiting the generality of Rule 21.2, in
proceedings in which an allegation of domestic or family violence, sexual
assault, indecent assault or the commission of an act of indecency is made and
in which the alleged victim gives evidence—
21.8.1
a solicitor must not ask that witness a question
or pursue a line of questioning of that witness which is
intended—
(i)
to mislead or confuse the witness,
or
(ii)
to be unduly annoying, harassing, intimidating,
offensive, oppressive, humiliating or repetitive,
and
21.8.2
a solicitor must take into account any particular
vulnerability of the witness in the manner and tone of the questions that the
solicitor asks.
21.9
A solicitor does not infringe Rule 21.8 merely
because—
21.9.1
the question or questioning challenges the
truthfulness of the witness or the consistency or accuracy of a statement made
by the witness, or
21.9.2
the question or questioning requires the witness
to give evidence that the witness could consider to be offensive, distasteful
or private.
rule 21: Am 2022
(34), Sch 1[25]–[29].
22Communication with opponents
22.1
A solicitor must not knowingly make a false or
misleading statement to an opponent in relation to the case (including its
compromise).
22.2
A solicitor must take all necessary steps to
correct any false or misleading statement made by the solicitor to an opponent
as soon as possible after the solicitor becomes aware that the statement was
false or misleading.
22.3
A solicitor will not have made a false or
misleading statement to the opponent simply by failing to correct an error on
any matter stated to the solicitor by the opponent.
22.4
A solicitor must not confer or deal with any
party represented by or to the knowledge of the solicitor indemnified by an
insurer, unless the party and the insurer have signified willingness to that
course.
22.5
A solicitor must not, outside an ex parte
application or a hearing of which an opponent has had proper notice,
communicate in the opponent’s absence with the court concerning any
matter of substance in connection with current proceedings
unless—
22.5.1
the court has first communicated with the
solicitor in such a way as to require the solicitor to respond to the court,
or
22.5.2
the opponent has consented beforehand to the
solicitor communicating with the court in a specific manner notified to the
opponent by the solicitor.
22.6
A solicitor must promptly tell the opponent what
passes between the solicitor and a court in a communication referred to in
Rule 22.5.
22.7
A solicitor must not raise any matter with a
court in connection with current proceedings on any occasion to which an
opponent has consented under Rule 22.5.2 other than the matters specifically
notified by the solicitor to the opponent when seeking the opponent’s
consent.
22.8
A solicitor must take steps to inform the
opponent as soon as possible after the solicitor has reasonable grounds to
believe that there will be an application on behalf of the client to adjourn
any hearing, of that fact and the grounds of the application, and must try,
with the opponent’s consent, to inform the court of that application
promptly.
rule 22: Am 2022
(34), Sch 1[30].
23Opposition access to witnesses
23.1
A solicitor must not take any step to prevent or
discourage a prospective witness or a witness from conferring with an opponent
or being interviewed by or on behalf of any other person involved in the
proceedings.
23.2
A solicitor does not breach Rule 23.1 simply
by—
23.2.1
telling a prospective witness or a witness that
he or she need not agree to confer or to be interviewed,
or
23.2.2
advising the prospective witness or the witness
about relevant obligations of confidentiality.
rule 23: Am 2022
(34), Sch 1[31].
24Integrity of evidence—influencing
evidence
24.1
A solicitor must not—
24.1.1
advise or suggest to a witness that false or
misleading evidence should be given nor condone another person doing so,
or
24.1.2
coach a witness by advising what answers the
witness should give to questions which might be
asked.
24.2
A solicitor will not have breached Rules 24.1
by—
24.2.1
expressing a general admonition to tell the
truth,
24.2.2
questioning and testing in conference the version
of evidence to be given by a prospective witness, or
24.2.3
drawing the witness’s attention to
inconsistencies or other difficulties with the evidence, but the solicitor
must not encourage the witness to give evidence different from the evidence
which the witness believes to be true.
25Integrity of evidence—two witnesses
together
25.1
A solicitor must not confer with, or condone
another solicitor conferring with, more than one lay witness (including a
party or client) at the same time—
25.1.1
about any issue which there are reasonable
grounds for the solicitor to believe may be contentious at a hearing,
and
25.1.2
where such conferral could affect evidence to be
given by any of those witnesses,
unless the solicitor believes on reasonable grounds that
special circumstances require such a conference.
25.2
A solicitor will not have breached Rule 25.1 by
conferring with, or condoning another solicitor conferring with, more than one
client about undertakings to a court, admissions or concessions of fact,
amendments of pleadings or compromise.
26Communication with witnesses under
cross-examination
26.1
A solicitor must not confer with any witness
(including a party or client) called by the solicitor on any matter related to
the proceedings while that witness remains under cross-examination,
unless—
26.1.1
the cross-examiner has consented beforehand to
the solicitor doing so, or
26.1.2
the solicitor—
(i)
believes on reasonable grounds that special
circumstances (including the need for instructions on a proposed compromise)
require such a conference,
(ii)
has, if possible, informed the cross-examiner
beforehand of the solicitor’s intention to do so,
and
(iii)
otherwise does inform the cross-examiner as soon
as possible of the solicitor having done so.
27Solicitor as material witness in client’s
case
27.1
In a case in which it is known, or becomes
apparent, that a solicitor will be required to give evidence material to the
determination of contested issues before the court, the solicitor may not
appear as advocate for the client in the hearing.
27.2
In a case in which it is known, or becomes
apparent, that a solicitor will be required to give evidence material to the
determination of contested issues before the court the solicitor, an associate
of the solicitor or a law practice of which the solicitor is a member must not
continue to act for the client if doing so would prejudice the administration
of justice.
rule 27: Am 2022
(34), Sch 1[32].
28Public comment during current
proceedings
28.1
A solicitor must not publish or take steps
towards the publication of any material concerning current proceedings which
may prejudice a fair trial or the administration of
justice.
29Prosecutor’s duties
29.1
A prosecutor must fairly assist the court to
arrive at the truth, must seek impartially to have the whole of the relevant
evidence placed intelligibly before the court, and must seek to assist the
court with adequate submissions of law to enable the law properly to be
applied to the facts.
29.2
A prosecutor must not press the
prosecution’s case for a conviction beyond a full and firm presentation
of that case.
29.3
A prosecutor must not, by language or other
conduct, seek to inflame or bias the court against the
accused.
29.4
A prosecutor must not argue any proposition of
fact or law which the prosecutor does not believe on reasonable grounds to be
capable of contributing to a finding of guilt and also to carry
weight.
29.5
A prosecutor must disclose to the opponent as
soon as practicable all material (including the names of and means of finding
prospective witnesses in connection with such material) available to the
prosecutor or of which the prosecutor becomes aware which could constitute
evidence relevant to the guilt or innocence of the accused other than material
subject to statutory immunity, unless the prosecutor believes on reasonable
grounds that such disclosure, or full disclosure, would seriously threaten the
integrity of the administration of justice in those proceedings or the safety
of any person.
29.6
A prosecutor who has decided not to disclose
material to the opponent under Rule 29.5 must consider whether—
29.6.1
the charge against the accused to which such
material is relevant should be withdrawn, or
29.6.2
the accused should be faced only with a lesser
charge to which such material would not be so
relevant.
29.7
A prosecutor must call as part of the
prosecution’s case all witnesses—
29.7.1
whose testimony is admissible and necessary for
the presentation of all of the relevant circumstances,
29.7.2
whose testimony provides reasonable grounds for
the prosecutor to believe that it could provide admissible evidence relevant
to any matter in issue,
UNLESS
(i)
the opponent consents to the prosecutor not
calling a particular witness,
(ii)
the only matter with respect to which the
particular witness can give admissible evidence has been dealt with by an
admission on behalf of the accused,
(iii)
the only matter with respect to which the
particular witness can give admissible evidence goes to establishing a
particular point already adequately established by another witness or other
witnesses,
(iv)
the prosecutor believes on reasonable grounds
that the testimony of a particular witness is plainly untruthful or is plainly
unreliable, or
(v)
the prosecutor, having the responsibility of
ensuring that the prosecution case is presented properly and presented with
fairness to the accused, believes on reasonable grounds that the interests of
justice would be harmed if the witness was called as part of the prosecution
case,
provided that the prosecutor must inform the
opponent as soon as practicable of the identity of any witness whom the
prosecutor intends not to call on any ground within (ii), (iii), (iv) or (v)
together with the grounds on which the prosecutor has reached that decision,
unless the interests of justice would be harmed if those grounds were revealed
to the opponent.
29.8
A prosecutor who has reasonable grounds to
believe that certain material available to the prosecution may have been
unlawfully obtained must promptly—
29.8.1
inform the opponent if the prosecutor intends to
use the material, and
29.8.2
make available to the opponent a copy of the
material if it is in documentary form.
29.9
A prosecutor must not confer with or interview
any accused except in the presence of the accused’s legal
representative.
29.10
A prosecutor must not inform the court or an
opponent that the prosecution has evidence supporting an aspect of its case
unless the prosecutor believes on reasonable grounds that such evidence will
be available from material already available to the
prosecutor.
29.11
A prosecutor who has informed the court of
matters within Rule 29.10, and who has later learnt that such evidence will
not be available, must immediately inform the opponent of that fact and must
inform the court of it when next the case is before the
court.
29.12
A prosecutor—
29.12.1
must correct any error made by the opponent in
address on sentence,
29.12.2
must inform the court of any relevant authority
or legislation bearing on the appropriate sentence,
29.12.3
must assist the court to avoid appealable error
on the issue of sentence, and
29.12.4
may submit that a custodial or non-custodial
sentence is appropriate.
29.13
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.
rule 29: Am 2022
(34), Sch 1[33] [34].