‘No contact rule’ for solicitors: a regulatory perspective

In the Council of the Law Society of New South Wales v Sideris (2024) NSWCATOD 3 (Sideris), the Tribunal examined the conduct of Mr Sideris, who had been involved in negotiating with The Salvation Army (TSA) a refundable accommodation deposit for his former mother-in-law. Mr Geary, a partner of Mills Oakley was subsequently retained by TSA in the negotiations. On 18 May 2021 Mr Geary informed Mr Sideris that any further correspondence was to be directed to himself. Mr Geary then repeated this request to Mr Sideris on six further occasions. Despite this, between 1 July 2021 and 13 February 2022, Mr Sideris sent 46 email communications directly to staff and senior managers of TSA.

The Law Society alleged two grounds of conduct against Mr Sideris, first, that he had breached the “no contact” rule and secondly, that he had been discourteous in his correspondence with the TSA. Only the first ground is considered in this article.

Mr Sideris wrote to Mr Geary and TSA on a letterhead titled “George Sideris & Associates” and signed correspondence as “Principal Solicitor Georgis Sideris and Associates Technical, Business and Commercial Lawyers”. No such law firm had been registered by Mr Sideris. Furthermore, Mr Sideris was a corporate solicitor and not a principal of any law practice. Mr Sideris accepted in the Tribunal proceeding that he had sent the correspondence directly to TSA knowing Mr Geary represented the TSA. However, Mr Sideris denied that he acted as a solicitor or in the course of legal practice. He contended that he acted for his mother-in-law as a relative or under a power of attorney for his mother-in-law. The Tribunal did not accept Mr Sideris’s submissions and found that Mr Sideris did work of a kind that is usually done by legal practitioners and he did it in such a way as to lead to the reasonable inference that he was acting as a legal practitioner. Threats by Mr Sideris of commencing legal action was accepted by the Tribunal as being exclusively the domain of legal practitioners.

Codification of the “No contact” rule

The Australian Solicitors’ Conduct Rules (ASCR) were adopted in South Australia (2011), Queensland (2012), Australian Capital Territory (2016) and Tasmania (2020). In NSW and Victoria, the ASCR came into effect as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, followed by Western Australia in 2022.[1] Across all jurisdictions, the ‘no contact rule’ for solicitors seeks to remedy the mischief identified in Jones v Jones (1847) 5 Notes of Cases in the Ecclesiastical and Maritime Courts 134 at 140 that “[a]ny communications which the solicitor of one party has with a party opposed to him in the cause is extremely unprofessional”.[2]

The Chancery Division in Re Margetson and Jones [1897] 2 Ch 314 at 318–19 explained the rationale for the rule as, ‘It is a professional rule that where parties to a dispute are represented by solicitors neither of those solicitors should communicate with the principal of the other touching the matters in question. That is a rule binding the profession as gentlemen, but it is also highly cognisant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing.’

Rule 33 of the ASCR is headed “Communication with another solicitor’s client” and reads:

33.1  In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless—

33.1.1  the other practitioner has previously consented,

33.1.2  the solicitor believes on reasonable grounds that—

(i)  the circumstances are so urgent as to require the solicitor to do so, and

(ii)  the communication would not be unfair to the opponent’s client,

33.1.3  the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, or

33.1.4  there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with the communication.

As expressed by rule 33, there are important exceptions to “no contact” rule, which are:

1. Merely enquiring of the opposing party if they are represented and by whom.
2. The opposing party’s solicitor has previously consented.

• The opposing party’s solicitor has not consented but firstly, reasonable efforts have been made to give the other solicitor notice of the intention to communicate with the opposing party. Secondly, the other solicitor has failed after a reasonable time to reply. Thirdly, there is a reasonable basis for proceeding with the communication.

1. In rare instances where the circumstances are so urgent as to require the solicitor to do so and the communication would not be unfair to the other solicitor’s client.

Client is an organisation or company

One of the issues the Tribunal considered is the application of rule 33 to large organisations such as TSA and where there may be legitimate reasons for Mr Sideris to interact with the organisation or its personnel. The guidelines issued by the Law Institute Victoria stipulate that it is not appropriate for a solicitor ‘to speak directly to company personnel who would normally have authority to make admission on the company’s behalf, or authority to instruct in the conduct of proceedings’, this would ordinarily include the Chief Executive Officer, Chief Financial Officer, Company Secretary, Directors, General Managers and Heads of Business Units. Similarly, Queensland Law Society, Guidance Statement No 29 state that ‘it is the authorised representative or decision-makers with respect to a given matter, as well as its directors or senior executives’ who are regarded as the client for the purposes of rule 33.

Mr Sideris contacted within the TSA: the Chair, the Chief Secretary, senior leadership members, senior executive personnel and staff members. The Tribunal was satisfied that Mr Sideris had directly contacted the personnel who had the relevant decision-making authority to represent TSA in relation to the dispute between Mr Sideris’ mother-in-law and TSA. Mr Sideris sought to communicate directly with TSA representatives who may have authority to influence TSA’s position concerning his mother-in-law’s liability to pay the refundable accommodation deposit on an objective reading of his correspondence. Mr Sideris’s purpose in sending the emails heightened the seriousness of the conduct, as it equated with the very rationale of rule 33 – attempting to secure an advantage or influence a decision maker in a dispute by directly communicating with another solicitor’s client.

Consequences of breaching rule 33

Rule 2.3 of the ASCR states that a breach of the ASCR is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action by the regulator.

Where breach of rule 33 has been a “one-off”, or only occurred on very few occasions, that conduct is ordinarily characterised as unsatisfactory professional conduct.[3] However, a solicitor approaching the client of another solicitor to attempt to have the matter settled favourable to their own client[4] or a solicitor who persistently contacts the client of another solicitor over a period of time may be characterised as professional misconduct.[5]

The Tribunal found each of the 46 emails Mr Sideris sent to TSA amounted to a breach of rule 33 and was unsatisfactory professional conduct as it fell short of the standard of competence a member of the public is entitled to expect of a reasonably competent lawyer. Each email correspondence was also sent after a request from Mr Geary that Mr Sideris contact his office and not TSA. The Tribunal accepted the Law Society’s submissions that the conduct was deliberate and wilful in nature. Considered cumulatively, the Tribunal found Mr Sideris’s conduct to amount to professional misconduct, the higher threshold of serious misconduct as it was both a consistent failure and a substantial failure to reach or maintain the standard of competence. The Tribunal reserved its decision as to protective orders pending further submissions from the parties as to orders and costs.

From a regulatory perspective, disciplinary action for alleged breaches of rule 33 may not be warranted where:

1. A solicitor corresponds for the purposes of serving a statement of claim on the opposing party. The service of a statement of claim on a solicitor can only occur if that solicitor holds instructions to accept service on behalf of the named defendant. There is no obligation requiring a plaintiff’s solicitor to ask a defendant solicitor if they hold such instructions or to ask the defendant solicitor to seek such instructions to accept service on behalf of the defendant.[6]
2. A solicitor is informed that their client has chosen to retain another solicitor and writes to the client directly for the purposes of arranging for the orderly transfer of the client’s file to the new solicitor.

• A solicitor is engaged to provide a second opinion by the client of another solicitor. This would not be caught by rule 33 in any event as it is not an opposing client. However, the Law Council commentary notes ‘that the circumstances in which this occurs, for example outside formally accepting instructions to provide a second opinion on the client’s matter, could raise ethical issues.’[7]

From the practitioner’s perspective, it is important to be mindful that:

1. One solicitor’s opinion that the opposing solicitor is not conducting the case to their client’s advantage or failing to assist in settling a matter is no excuse for breaching the “no contact” rule.[8]
2. Engaging with another solicitor’s client in the heat of the moment will not satisfy the exception for ‘urgent’ circumstances, no matter how urgent it may seem at the time. Circumstances are considered to be ‘urgent’ only where there are immediate risks or consequences for the solicitor’s client.

• Besides professional disciplinary orders, there may also be legal consequences to solicitors breaching the “no contact” rule. The court may rule inadmissible any evidence gathered as a result of the breach, the court may order documents and notes to be returned and the court may disqualify a solicitor from the legal proceeding.[9]

[1] https://lawcouncil.au/policy-agenda/regulation-of-the-profession-and-ethics/australian-solicitors-conduct-rules

[2] Solicitors Manual, G E Dal Pont (updated September 2022) at [27,0555.5] retrieved from http://www,lexismexis.com

[3] Council of the Law Society of NSW v Byrnes (2016) NSWCATOD 64; Legal Services Commissioner v Mercader (Legal Practice) (2011) VCAT 2062 and other cases cited in Sideris at [74]

[4] Re Orlov and Pursley [1995] 4 LPDR 5 and Legal Services Commissioner v Tuferu (Legal Practie) (2013) VCAT 1438 and Legal Services Commissioner v Poole (2019) QCAT 381 are cited in Sideris at [74]

[5] Legal Practitioners Conduct Board v Daryl Wharff (2012) SASCFC 116 cited in Sideris at [75]

[6] Also see ASCR Commentary p119 retrieved from https://lawcouncil.au/files/pdf/policy-guideline/ASCR%20Commentary.pdf

[7] Ibid

[8] Re Orlov and Pursley [1995] 4 LPDR 5 at 24 and Sideris at [150]

[9] G E Dal Pont, Lawyers’ Professional Responsibility, (Lawbook Co., 7^th Edition, 2021) at [21.275]