‘Serious Flaws’ in Rule used to Discipline Solicitors

Article recently published in Lawyers Weekly on 7 November 2023, by Naomi Neilson.

A rule preventing solicitors from contacting the opposing party’s client has “serious flaws” and should be reformed, an expert argued.

Despite the “no contact” rule in the Australian Solicitors Conduct Rules being used to impose “potentially very serious consequences” on those that breach it, the current formation of the rule remains unclear, Thomas More Law School lecturer Dr Bill Swannie submitted in a piece published in the Adelaide Law Review.

Dr Swannie reviewed punitive action taken against solicitors and analysed the way the rule has been defined in different jurisdictions to conclude there are some “serious flaws” in the way the rule is understood and imposed in disciplinary proceedings.

“Whilst it is accepted that disciplinary sanctions can and should depend on the surrounding circumstances, the potentially very serious consequences for a solicitor who breaches the rule reinforces the need for clarity regarding the scope of the rule,” Dr Swannie said.

Although some have described a breach of the rule as “merely technical” and impose minimal sanctions, judges, such as retired County Court of Victoria’s Judge Paul Lacava, described it to be “fundamental to practice as a legal practitioner in this state”.

“There appear to be differing views as to the importance of the rule, which is reflected in the varying and sometimes minimal sanctions applied by disciplinary tribunals,” Dr Swannie said.

Dr Swannie identified five “significant ambiguities” surrounding the rule, with all coming back to the unclear scope.

First, Dr Swannie said that while most disciplinary proceedings involve litigious matters, the ambiguity of the language creates “potential for confusion”, as the rule could apply to both litigious and non-litigious matters or could only apply in a litigious context.

Next, solicitors could remain unclear about the rule due to its exceptions, including contacting an opposing client in a social setting or in matters unrelated to the legal representation.

Dr Swannie said upon reviewing the no-contact rule in this instance, a breach seemed to only apply “when there is a potential conflict of interest between the solicitor and the contacted client”.

When the client is an organisation or a company, Dr Swannie said there can be some confusion about whether it applies to “any employee … or merely directors and senior executives”.

Additionally, a breach being recognised when the contact is made through an intermediary also remains unclear, as does whether a breach of the rule depends on whether the solicitor is aware that the client is unrepresented in their proceedings.

In summary, Dr Swannie said there are “significant uncertainties surrounding the scope of the no-contact rule”.

“There are serious flaws, considering the potentially very serious consequences for a solicitor who breaches the rule.

“Further, the rationale for the rule is unclear. Commonly, it is argued that the rule protects clients from opposing solicitors. However, the rule also operates to protect the interests of solicitors,” he added.

The link to the full LawyersWeekly article can be found here.