LLB197 Lecture Notes - Lecture 10: All England Law Reports, Well-Founded Relation, Comity
TOPIC 9: Duties Continued
Duty to the profession (topic one)
Duties to third parties (topic two)
Duty to other lawyers
General duty to communicate with other lawyers in an honest and courteous manner – r4.1.2
R22 - Not knowingly make a false statement to the opponent in relation to the case – INCLUDING
compromise (r22.1)
- see, eg, Legal Services Commissioner v Mullins [2006] LPT 012 (WA case); LPCC v Fleming [2006] (QLD
case see text p. 358 and also n 36 in Ch 11).
- take all necessary steps to correct false statement unknowingly made as soon as possible after becoming
aware that it was false (r22.2)
- Not ‘false statement’ to NOT correct an opponent’s error (r22.3)
Duty not to take unfair advantage of the obvious error of another solicitor to obtain for client a
benefit which has no supportable foundation in law or fact – r30
Specifically for inadvertent disclosure – r31
- Remember: even if ‘instructed by a client to read confidential material received in error, the solicitor must
refuse to do so’ - r31.3
Actively taking advantage of mistakes – can amount to misconduct à discipline:
Chamberlain v Law Society of ACT (1993) 43 FCR 148
n Can be removed from case – not in client’s best interest
n Officer of the court – waste court’s time, etc
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
‘Those members of the legal profession who seek to win a momentary advantage for their clients without
observing the proper courtesies invite correction by the court and disapproval of their colleagues … To the
extent that solicitors act in this way, they run the risk of destroying the confidence and mutual respect which
generally distinguishes dealings between members of the legal profession from other dealings in the
community.’ : at 667 per Kirby ACJ
Not allege unreasonable misconduct allegations – r32
Breach of duties to other lawyers…
- Professional misconduct
- Personal costs orders
‘No contact’ rule – r 33
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Document Summary
General duty to communicate with other lawyers in an honest and courteous manner r4. 1. 2. R22 - not knowingly make a false statement to the opponent in relation to the case including compromise (r22. 1) See, eg, legal services commissioner v mullins [2006] lpt 012 (wa case); lpcc v fleming [2006] (qld case see text p. 358 and also n 36 in ch 11). Take all necessary steps to correct false statement unknowingly made as soon as possible after becoming aware that it was false (r22. 2) Not false statement" to not correct an opponent"s error (r22. 3) Duty not to take unfair advantage of the obvious error of another solicitor to obtain for client a benefit which has no supportable foundation in law or fact r30. Remember: even if instructed by a client to read confidential material received in error, the solicitor must refuse to do so" - r31. 3. Actively taking advantage of mistakes can amount to misconduct discipline:
