We accept as a given that the practice of law is a profession.
This chapter outlines principles in relation to professional ethics and court etiquette relevant to duty solicitor work. 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.
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. 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 are all legal practitioners [see Halliwell v Kraft  SASC ; Milera v Korber  SASC on 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 Chapter 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.
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.
Duty to the client The role of the legal practitioner when representing a defendant is to look after his or her 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.
Advancing the case A legal practitioner has a duty to provide clear and timely advice to enable a client to understand relevant legal issues and to make informed choices about actions to be taken during the course of a matter.
Examples are, advising a defendant on the merits of his or her 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].
Conflict of Duties The following paragraphs outline situations where a duty solicitor may be faced with a conflict of duties. Former clients Where a legal practitioner in the course of acting for a defendant 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.
For example, a conflict would arise where the victim of an offence is a relative, a friend or an acquaintance of the legal practitioner. When clients lie to the court or falsify documents 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: 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. 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: This complies with the Magistrates Court Rules 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 [see Magistrates Court Rules Rule When clients disclose they will breach a court order 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. Officer of the court 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. Confidentiality and Legal Professional Privilege The solicitor-client relationship is founded on confidentiality and legal professional privilege.
This also protects such information from being subpoenaed or consequently used as evidence. Prosecution Policy Guidelines In the courts of summary jurisdiction, for summary and minor indictable offencesthe prosecutor is a police officer, and not usually a lawyer.
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. Court Etiquette There is much literature available on court etiquette and a variety of meanings given to the expression. Appropriate attire There is an expectation for men to always wear a jacket and a tie when they appear in court.
On occasion, when the weather is hot, a Magistrate may give leave for jackets to be removed. Women are expected to attend court wearing the equivalent of office attire, with a degree of modesty.
Before court Preparedness for the court appearance is of upmost importance. In addition to the particulars of the matter for which the legal practitioner is appearing, knowledge of court procedure is also required.There are four core principles regarding integrity that guide legal practice: independence, confidentiality, avoiding conflicts of interest and maintaining professional integrity.
A variety of issues have emerged that risk undermining the integrity of the legal profession. These ethical challenges. 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 Code of Professional Responsibility consists of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules.
The Code is designed to be both an inspirational guide to the.
The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist the public in recognizing legal problems. This appearance of influence reflects poorly on the integrity of the legal profession and government as a whole.
Objectives. By the end of this chapter, you will know the answers to these questions: What Does the Duty of Integrity Look Like? Is There a Duty to Report the Misconduct of Others? The fiduciary concept in the practice of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics called the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules