WA Professional Conduct Rules for Lawyers?

[James McGeough]

I have read the professional conduct rules (2010) for lawyers in Western Australia and I am familiar with the requirements for honesty and candor, but I am not sure as to whether this rule applies to everything stated or written by a lawyer to the other party or if such rule only applies in the court room or at all times during litigation?

I have seen letters from lawyers which are misleading and cast aspersions on the other party which are untrue and where there is no evidence to support such aspersions... It seems that such writings are intended to weaken the other party emotionally but are untruthful and misleading... but are such tactics allowed in the context of the professional rules?

I did read earlier that professional conduct rules do apply to mediation whereby lawyers must abide by the rules of honesty and candor and must not mislead as I note above... but I am interested in the lawyer’s letter writing because most lawyers add a footnote to their letters that they will rely on their letters in court if necessary etc.

 

[Rob Legat - SBPL]

Yes, there's:

6(1)(b) - A practitioner must be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client.

6(2) - A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which (a) demonstrates that the practitioner is not a fit and proper person to practice law; or (b) may be prejudicial to, or diminish public confidence in, the administration of justice; or (c) may bring the profession into disrepute.

16(1) - A practitioner must not attempt to further a client's matter by unfair or dishonest means.

However, just because you think something is dishonest or unsupported does not make it so. Remember, lawyers spend their professional lives dealing in this environment. While there are ones who engage in dishonest communications - they don't tend to last very long. There is however a fine line between right and wrong, and it's one that lawyers often have to walk as they balance their ethical obligations and client expectations (which they are duty bound to represent, so long as they don't cross the line).

 

[Rod]

seen letters from lawyers which are misleading and cast aspersions on the other party which are untrue

Lawyers sometimes have to take the word of their client as there is often no evidence, especially in family law matters dealing with events that happen behind closed doors.

 

[Rob Legat - SBPL]

Lawyers sometimes have to take the word of their client as there is often no evidence, especially in family law matters dealing with events that happen behind closed doors.

In which case, the lawyer should be attributing such a claim to their client in the manner of, "We are instructed that....". Lawyers must be careful not to asset something which isn't true, but stating that their client claims it (when they do) is truthful.

 

[James McGeough]

Yes, there's:

6(1)(b) - A practitioner must be honest and courteous in all dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client.

6(2) - A practitioner must not engage in conduct, in the course of providing legal services or otherwise, which (a) demonstrates that the practitioner is not a fit and proper person to practice law; or (b) may be prejudicial to, or diminish public confidence in, the administration of justice; or (c) may bring the profession into disrepute.

16(1) - A practitioner must not attempt to further a client's matter by unfair or dishonest means.

However, just because you think something is dishonest or unsupported does not make it so. Remember, lawyers spend their professional lives dealing in this environment. While there are ones who engage in dishonest communications - they don't tend to last very long. There is however a fine line between right and wrong, and it's one that lawyers often have to walk as they balance their ethical obligations and client expectations (which they are duty bound to represent, so long as they don't cross the line).

Thank you Rob; I have read these professional conduct rules before but I wasn't sure whether the rules apply to all conduct or limited to conduct in court proceedings and it would now seem that the conduct rules apply to all actions. I also understand your reference to the ‘line’ and crossing that ‘line’ and I have seen how an experienced lawyer can come up to the line (intentionally) with vague innuendo but I’ve also read case law Rondel v Worsley [1969] 1 AC 191 at 227; [1967] All ER 993 at 998; “Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party... “ and again, thank you.

 

[James McGeough]

Another one Rob;

I am a defendant in a civil claim where the plaintiff’s solicitor is misleading the court with materially false claims (made 12 months ago but only discovered to be false now); I am self represented and am wanting to know when and where and how to raise this? to the court or to the plaintiff’s solicitor? in writing or? I now believe that their case has no actual merit and that their tactic is to force a settlement. I welcome all suggestions or input...

 

[Rob Legat - SBPL]

That depends on the circumstances and what the solicitor's conduct is. Solicitors' first duties are to the court and the administration of justice. They cannot lie to or mislead the court, and if they have inadvertently made a misleading statement they must take all necessary steps to correct it as soon as possible after becoming aware it is misleading.

I'd suggest writing to the solicitor, drawing their attention to the situation and inviting them to confirm that they will be bringing the circumstances to the attention of the court immediately. Add that should they fail to do so (and confirm with you that they have), then you intend to bring the information to the court's attention at your next available opportunity.