All members of the legal profession have a paramount duty to the Court and to the administration of justice, This duty prevails over all other duties, especially in circumstances where there may be a conflict of duties, for example, following a client's instructions if those instructions are inconsistent with the practitioners duties to the Court.
Whilst this duty affects professional conduct within the solicitor client relationship, it is a broad duty, and each member of the legal profession is entrusted to maintain the independent and impartial administration of justice. It is important that legal practitioners conduct themselves with integrity, provide competent assistance to the courts, and promote public confidence in the court system. In carrying out their duties, legal practitioners are required and expected to deal with other members of the legal profession with courtesy and integrity.
It is important that all legal practitioners are well versed in the South Australian Legal Practitioners Conduct Rules, a copy of which is available from The Law Society of South Australia. The Law Council of Australia has also produced a Commentary to the Rules which provides additional information and guidance in understanding how particular Rules might apply in some situations.
The following paragraphs serve to highlight only some of the rules of professional conduct, making it important for the duty solicitor to become acquainted with the other rules. It is important to remember that a breach of the Legal Practitioners Conduct Rules can amount to professional misconduct or unsatisfactory professional misconduct.
The standard of conduct for legal practitioners is set out in the South Australian Legal Practitioners Conduct Rules. A practitioner must not engage in conduct which is dishonest or disreputable or which would demonstrate that they are not a fit and proper person to practise law, diminish the public confidence in the administration of justice or bring the profession into disrepute [see South Australian Legal Practitioners Conduct Rules Rule 5]. A practitioner must also avoid any compromise of their integrity and professional independence [Rule 4].
It is recognised that duty solicitor work is often performed under pressure. That pressure can come from time constraints, the need for multiple court appearances and the task of dealing with anxious or distressed defendants. Nevertheless, the duty solicitor is held accountable to the same standard of professional conduct as all other legal practitioners [see Halliwell v Kraft [1990] SASC 2634; Milera v Korber [1986] SASC 9474on judicial comment on duty solicitor work].
Maintaining an appropriate standard of professional conduct is particularly important when considering the advice to be given to a defendant, or whether or not to act for a defendant [see Role of Duty Solicitor and Guilty Pleas chapters]. It is also important for the duty solicitor to keep comprehensive and accurate notes of all dealings with defendants throughout each day. This includes situations where the duty solicitor has decided they cannot advise or represent a particular defendant [see Collie v Police [2002] SASC 109; Hatcher v Police [2006] SASC 332 for judicial comment on duty solicitor work].
Defendants have successfully appealed convictions and penalties due to a miscarriage of justice arising from duty solicitor assistance [see Guilty Pleas chapter]. Unsatisfactory conduct or professional misconduct can result in adverse judicial comment in subsequent appeals and the duty solicitor may become subject to disciplinary proceedings. A reputation for professional integrity and being consistently reliable with the courts is fundamental to the duty solicitor’s ability to perform as an effective advocate.
The role of the legal practitioner when representing a defendant is to look after the defendant's interests by assisting them to understand the case against them, their legal rights and obligations, and the consequences of the decisions they may make in relation to the conduct of their matter.
In representing a client, a legal practitioner must follow their client’s lawful, proper and competent instructions [see Legal Practitioners Conduct Rules Rule 8]. In addition, a legal practitioner must advance their client’s interest in accordance with the law, without conveying or appearing to convey the practitioner’s personal opinion on the merits of the case [see Rule 17 for specific obligations].
A legal practitioner has a duty to provide clear and timely advice to enable their client to understand relevant legal issues and to make informed choices about actions to be taken during the course of a matter. This involves informing the client about the alternatives to a fully contested adjudication which may be reasonably available to the client [see Legal Practitioners Conduct Rules Rule 7]. Examples include advising a defendant on the merits of their case, particularly where there are no prospects of success, and advice about a penalty discount on an early plea of guilty [see Guilty Pleas and Sentencing chapters].
Where a practitioner receives instructions to mitigate their client’s criminality, and those instructions involve allegations of serious misconduct against another person (who is unable to answer the questions directly in the case), then the practitioner must not disclose the identity of the other person. The exception is where the practitioner believes, on reasonable grounds, that the disclosure is necessary for the proper conduct of the client’s case [Legal Practitioners Conduct Rules Rule 21.7].
The following paragraphs outline situations where a duty solicitor may be faced with a conflict of duties.
Where a legal practitioner in the course of acting for a defendant (who is now a former client) has acquired confidential information which is material to a matter involving a new defendant, and it might be reasonably concluded that such information, if disclosed, would be detrimental to the interests of the former client, then there is a conflict of duties as the legal practitioner has duty to both their current and former client. The legal practitioner cannot act for the new defendant unless the former client has given informed written consent, or an effective information barrier has been established [see Legal Practitioners Conduct Rules Rule 10].
Conflicts may also arise where a legal practitioner is asked to represent more than one party involved in a particular matter, for example, co-accused defendants [see Legal Practitioners Conduct Rules Rule 11.5].
A practitioner must not act for a defendant where the practitioner is aware that the defendant's interest in the matter is, or would be, in conflict with the practitioner’s own interest or the interest of an associate [see Legal Practitioners Conduct Rules Rule 12.1]. For example, a conflict would arise where the victim of an offence is a relative, a friend or an acquaintance of the legal practitioner.
A conflict of duty can arise in the course of duty solicitor work by virtue of instructions of the defendant. Where a defendant informs a legal practitioner that they have:
the practitioner must refuse to take any further part in the case unless authorised by the client to inform the court of the lie or falsification [see Legal Practitioners Conduct Rules Rule 20.1.5].
Where the defendant instructs the practitioner to disclose the information to the court, the practitioner must promptly inform the court of the lie or falsification. Where the defendant refuses to provide such instructions, the legal practitioner must refuse to take any further part in the case, but cannot inform the Court of the lie or falsification [Rule 20.1.5]..
| WITHDRAW FROM THE FILE |
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Where a defendant refuses to provide instructions to have the information about a lie or a falsification disclosed to the Court, it is a duty solicitor's responsibility to then appear before the Court and seek leave to withdraw from the file.
When doing so, the duty solicitor must be careful not to disclose to the Court the reason for withdrawing from the file. It is safest for them to keep their submissions to a minimum; for example: ‘I seek leave to withdraw from this matter due to a conflict’. This complies with the Joint Criminal Rules 2022 (SA) which provide that a legal representative of a party must notify the court of that status and any changes to that status as soon as practicable [r 24.2 Law firm acting for party, 24.3 Responsible solicitor acting for party].
WRITTEN AND SIGNED INSTRUCTIONS
Where the defendant agrees to the disclosure of the information, those instructions must be in writing and signed by the defendant. |
On occasions, the duty solicitor will encounter a defendant who instructs that they will disobey a particular court order. In this situation, the duty of a legal practitioner is to advise the client against such action and warn of the consequences. A legal practitioner must not provide advice as to how such a breach should be carried out or concealed, nor should a legal practitioner inform the court or prosecution of the client’s intentions without authorisation from the client [see Legal Practitioners Conduct Rules Rule 20.3 for exceptions].
As officers of the court, all legal practitioners must act competently, diligently and with complete candour when dealing with the court. Conduct towards the court must be exemplary. There is an expectation of honesty and frankness in all court proceedings.
A legal practitioner must not knowingly, or recklessly, mislead the Court [see Legal Practitioners Conduct Rules Rule 19.1]. Whilst defence counsel is not required to disclose information, they must not mislead the Court by providing false or inaccurate information, nor fail to disclose material information [see R v Stamos [2004] SASC 132 and Role of the Duty Solicitor chapter].
A legal practitioner must correct any misleading statement made by the practitioner to a court as soon as possible after they become aware that the statement was misleading [see Legal Practitioners Conduct Rules Rule 19.2]. However, a practitioner is not taken to have made a misleading statement to a court simply by not correcting an error in a statement made to the Court by an opponent or any other person [see Legal Practitioners Conduct Rules Rule 19.3].
Whilst, as a general rule, legal practitioners act in accordance with the defendant’s instructions, there must remain a degree of forensic judgement in following those instructions in order to prevent submissions to the Court which the duty solicitor knows will deceive the Court and which would accordingly breach the legal practitioner's duty to the Court and to the administration of justice.
| ROBUST REPRESENTATION |
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Despite a duty solicitor's advice to the contrary, a defendant may instruct them to proceed with a bail application or sentencing submissions. It is important that the duty solicitor's manner does not suggest to the Court or the prosecutor their personal view that the application is hopeless. |
The solicitor-client relationship is founded on confidentiality and legal professional privilege.
A legal practitioner must not disclose to any person any information which is confidential to a client and acquired by the practitioner during the client’s engagement of the legal practitioner without the client’s authorisation [see Legal Practitioners Conduct Rules Rules 9.1; and 9.2 for exceptions].
Legal professional privilege protects written material or documents (such as those in a client’s file, or the pink duty solicitor forms) from disclosure to any other person without the defendant’s consent. This also protects such information from being subpoenaed or consequently used as evidence.
In the courts of summary jurisdiction, for summary and minor indictable offences, the prosecutor is a police officer, and not usually a lawyer. The Director of Public Prosecutions (‘DPP’) prosecutes all major indictable matters in the superior courts, and is represented by qualified lawyers. As legal practitioners, prosecutors from the DPP are subject to the Legal Practitioners Conduct Rules. In addition, they are guided in their conduct of criminal matters by Prosecution Policy and Guidelines which hold all prosecutors to ‘the highest ethical and professional standards and strives to achieve the most effective and appropriate criminal prosecutions ’ [see Prosecution Policy and Guidelines p 1].
The guidelines set out the role and obligations of the prosecutor. The prosecutor holds a duty of fairness to the court, the community, the accused, victims, witnesses and defence counsel [see Prosecution Policy and Guidelines p 2]. The prosecutor has a discretion whether or not to proceed with a prosecution. There must be a reasonable prospect of a conviction and ‘admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused’ [see Prosecution Policy and Guidelines p 5 for more detailed information].
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