Decisions by the Professional Conduct Committee

Introduction

The Professional Conduct Committee (PCC) of the Council of the Law Society of NSW (Council), under delegation from the NSW Legal Services Commissioner and the Council, deals with complaints referred to the Council by the NSW Legal Services Commissioner.  A total of 166 matters were finalised during the October – December 2025 Quarter (December Quarter).

There were 2 disciplinary matters determined in the December Quarter, which concerned:

• conflicts of interest; and
• tactics that went beyond legitimate advocacy and were designed to embarrass or frustrate.

Conflicts of Interest

Conflicts of interest are frequently considered by the PCC; as they are by their very nature, often complicated.

The matter which involved conflicts of interest concerned a solicitor who acted for the parties on opposing sides of several transactions and in subsequent debt recovery proceedings. One party was the lender in relation to a property development, and the other party was the borrower. The solicitor had, amongst other things, previously provided advice to the borrower regarding refinance of a property, that was security for one of the loans.

In addition, the solicitor acted for both parties in debt recovery proceedings commenced by the borrower against the lender for non-payment of the loans. Not only did the solicitor fail to withdraw from acting in the proceedings, but instead continued to engage in negotiations on behalf of both parties. The solicitor finally withdrew from the proceedings after a Notice of Motion was filed seeking the solicitor’s removal.

The crux of the issue was whether the lender had provided informed consent to the solicitor, for the solicitor to act for both the lender and the borrower.

Rules 10, 11 and 12 of the Legal Profession Uniform Australian Solicitors’ Conduct Rules 2015 (Conduct Rules) establish guidelines for avoiding conflicts between current and former clients, between current clients and between the solicitor’s own interests and their clients.

As noted by Millett LJ in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222:

“a fiduciary cannot act at the same time both for and against the same client, and his firm is in no better position. A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest.”

Further at [7030] of the NSW Solicitor’s Manual (Lexis Nexis Online edition as at 10 June 2025), G E Dal Pont observes that because fiduciary law (and r 11 of the Conduct Rules) proscribes a lawyer from representing multiple clients whose interest may or do conflict, and ordinarily dictates that the lawyer must withdraw from representing each client once the conflict arises, the lawyer must be alert to the possibility of the conflict arising. See for example Council of the Law Institute of Victoria v A Solicitor [1993] 1 VR 361 at 367 per Tadgell J.

At [7035] Dal Pont also refers to the warning of Burchett J in Wan v McDonald (1992) 105 ALR 473 at 496, that where a “solicitor has acted for both parties [and continues] to act for one of them after a conflict has arisen, the issues of loyalty and propriety…loom more largely.” Dal Pont also notes that once it is shown that a conflict has arisen, it is the lawyer who “must accept the burden of establishing that he has, notwithstanding such conflict, fulfilled obligations to both clients.”

The Conduct Rules provide a mechanism for solicitors to potentially act for different parties, in circumstances that may otherwise amount to a conflict, being informed consent. The High Court in Maguire v Makaronis (1997) 188 CLR 449 considered the content of informed consent as follows:

“What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.”

There is no precise formula for determining whether informed consent has been given to a solicitor and the sophistication of the client involved will impact on the level of disclosure that is required to be given. However, at [7040.10] Dal Point also observes that:

“… The key to effective consent …is that the client be fully informed and understand the consequences of consenting to the (continuing) representation.

As the lawyer is better positioned to discern the presence of conflict, the client relies heavily upon disclosure by the lawyer as to the existence, nature and consequences of any such conflict. Nothing short of full disclosure, supported by a strong recommendation that the clients seek independent legal advice on the matter, ordinarily suffices. The mere fact that one or more of the clients are experienced businesspersons is no substitute for full disclosure, and certainly does not amount to an implied consent for this purpose…”.

On the question of how informed consent should be evidenced, the New South Wales Civil and Administrative Tribunal in Di Giovanni v Council of the Law Society of New South Wales [2024] NSWCATOD 66 quoted, with approval, remarks made by Barlow QC DCJ in Metro Waterloo Pty Ltd v HWL Ebsworth Lawyers [2021] QDC 295 at [71], regarding the importance of keeping a written record, such as a file note.

The PCC considered that the solicitor engaged in conduct giving rise to a conflict of interest and did not obtain informed consent from the lenders to the requisite standard required.  The PCC made a finding of unsatisfactory professional conduct, the solicitor was reprimanded and was ordered to undertake ethics training with a focus on managing conflicts of interest.

Tactics that go beyond legitimate advocacy

One of the matters considered by PCC in the December Quarter involved determining whether correspondence sent in a family law matter breached r 34.1.3 of the Conduct Rules.

Rule 34.1.3 of the Conduct Rules provides that a solicitor must not in any action or communication associated with representing a client use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.

The PCC considered that the solicitor had breached r 34.1.3 by sending correspondence to the employer of their client’s ex-wife. The correspondence concerned the ex-wife sending emails from her work account. It is noted that this occurred in the context of a broader contentious family law matter.

This rule has been considered by both the Victorian and the New South judiciary in the last couple of years.

In Victorian Legal Services Commissioner v Raniga (Corrected) (Legal Practice) [2024] VCAT 1195, the Tribunal found that the solicitor had contravened rr 5.1.2 and 34.1.3 of the Conduct Rules by making an offer on behalf of his client to settle matrimonial property matters contingent on:

1. the client’s ex-wife not making a statement to the police in respect of a historical rape allegation, and
2. assurance from the ex-wife that she would make no further complaint to police in respect of matters prior to separation.

The parties to the proceedings agreed that the trading of a property settlement for the withdrawal of a rape allegation goes beyond legitimate advocacy and is primarily designed to embarrass or frustrate another person. The Tribunal found that the solicitor engaged in professional misconduct and the solicitor was reprimanded and required to undertake three continuing professional development units in the area of ethics and professional responsibility.

In the NSW matter of Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166, the solicitor appealed the finding of the PCC that they had engaged in unsatisfactory professional conduct. In this case, the solicitor, when acting for the wife in the context of a family law matter, sent a Facebook message to the sister of the husband’s girlfriend that:

1. stated the husband and the girlfriend were currently committing the crime of bigamy, despite having no evidence that they were married,
2. intimidated or misled the sister by informing her that the husband and the girlfriend had already broken the law, and
3. threatened imminent legal action for the criminal behaviour in Australia and the Philippines.

In this matter the Tribunal was satisfied that the messages went beyond legitimate advocacy and were primarily designed to embarrass or frustrate the recipient and through them the husband. The Tribunal found that the solicitor breached rr 34.1.1 and 34.1.3 of the Conduct Rules and therefore engaged in unsatisfactory professional conduct. The solicitor was reprimanded and fined $2,500.

Based on the above cases and the facts of the complaint before them, the PCC determined that the solicitor had engaged in unsatisfactory professional conduct and that they be reprimanded, pay a fine of $2,000, undertake and complete legal ethics training with the Professional Support Unit of the Law Society of NSW and provide an apology.