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 lawyer's duties to the court.

While this duty affects professional conduct within the lawyer-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 lawyers conduct themselves with integrity, provide competent assistance to the courts, and promote public confidence in the court system. In carrying out their duties, lawyers are required and expected to deal with other lawyers with courtesy and integrity.

It is important that all lawyers 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 highlight only some of the rules of professional conduct. It is important to remember that a breach of the Legal Practitioners Conduct Rules can amount to unsatisfactory professional conduct or professional misconduct.

Standard of conduct

The standard of conduct for lawyers is set out in the South Australian Legal Practitioners Conduct Rules. A lawyer must not engage in conduct that is dishonest or disreputable or that 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 [Rule 5]. A lawyer must also avoid any compromise of their integrity and professional independence [Rule 4].

Duty to the court

As officers of the court, all lawyers 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 lawyer must not knowingly or recklessly mislead the court [Rule 19.1]. While criminal defence lawyers may not always be required to disclose information, they must not mislead the court by providing false or inaccurate information, nor fail to disclose material information when required [see, for example, the discussion in R v Stamos [2004] SASC 132].

A lawyer must correct any misleading statement they have made to a court as soon as possible after they become aware that the statement was misleading [Rule 19.2]. However, a lawyer 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 [Rule 19.3].

While, as a general rule, lawyers act in accordance with their client's instructions, there must remain a degree of forensic judgement in following those instructions to prevent submissions that might deceive the court or breach their duty to the court and to the administration of justice.

Duty to the client

In representing a client, a lawyer must follow their client’s lawful, proper and competent instructions [Rule 8]. A lawyer must advance their client’s interest in accordance with the law, without conveying or appearing to convey the lawyer's personal opinion on the merits of the case [see Rule 17 for specific obligations].

A lawyer 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 [Rule 7]. Examples include advising a defendant facing criminal charges on the merits of their case, particularly where there are limited prospects of success, and providing information about penalty discounts that may be available on an early plea of guilty.

A lawyer has an obligation to inform clients as to their eligibility for legal aid through the Legal Services Commission, the Litigation Assistance Fund or another legal assistance scheme in the community [Rule 16A.1].

Confidentiality and legal professional privilege

The lawyer-client relationship is founded on confidentiality and legal professional privilege.

A lawyer must not disclose to any person any information that is confidential to a client and acquired by the lawyer during the client’s engagement of the lawyer unless the client consents [see Rule 9.1]. Some exceptions exist, such as where a lawyer discloses confidential information to prevent imminent serious physical harm to their client or another person [see Rule 9.2 for this and other exceptions].

Legal professional privilege protects documents and materials from disclosure to any other person without the client's consent. It also protects such information from being subpoenaed or used as evidence.

A lawyer must not disclose to the court or anyone else that a client has applied for (or will apply for) or has received a grant of legal aid unless the client consents or the lawyer is legally obliged to disclose it [Rule 16A.4].

Conflict of duties

A lawyer may face a conflict of duties or interests if:

A lawyer has a duty to avoid and manage conflicts. This may mean they need to refuse to act for a particular client to avoid a situation of conflict or perceived conflict. The South Australian Legal Practitioners Conduct Rules provide further details to help lawyers manage particular conflicts that may arise.

Prosecution Policy Guidelines

In the courts of summary jurisdiction, for summary and minor indictable offences, the prosecutor is usually a police officer, and not usually a lawyer. The Director of Public Prosecutions 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 South Australian Legal Practitioners Conduct Rules. They are also guided in their conduct of criminal matters by Prosecution Policy and Guidelines that 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].