- Following the Law Council of Australia’s recent review, the Australian Solicitors’ Conduct Rules have been amended. The changes came into effect on 1 April 2022 and will apply in the Uniform Law jurisdictions.
- Many Rule changes have been made for clarification, updating terminology or harmonisation with the equivalent Barristers’ rules. The Law Council will also be updating the Commentary.
- The changes to Rule 42 are a timely response to ‘the profession’s view that discrimination and harassment (particularly sexual harassment) are unacceptable conduct for members of the profession’. A solicitor is expected to conduct himself/herself to a higher standard of conduct than prescribed in any legislation or under the common law, whether this be in the office, at after works drinks or networking functions connected with legal practice.
- Practitioners will note these changes in the context of the new ‘affirmative consent’ under the (Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 which comes into effect in New South Wales in May 2022.
Rule 42 previously prohibited discrimination, sexual harassment and workplace bullying by a solicitor ‘in the course of practice.’ The Law Council of Australia (‘LCA’) stated that the Australian Solicitors’ Conduct Rules (‘ASCR’) are much more than legislative rules, and are ‘a statement by the profession of the ethical standards expected of legal practitioners in their professional conduct’.
The Rule has been extended and now covers a solicitor’s conduct, ‘in the course of, or in connection with, legal practice or their profession.’ (Emphasis added in italics to highlight the changes to the rules.) Whilst ‘legal practice’ is not defined in the ASCR, ‘law practice’ means a sole practitioner, partnership, multi-disciplinary partnership, community legal service, ULP or an ILP. Interestingly, Rule 5 (Standard of Conduct – Dishonest or Disreputable Conduct) contains a similar concept of situational conduct, namely that a solicitor must not engage in dishonest and disreputable conduct ‘in the course of a legal practice or otherwise.’ The type of conduct has been extended to include ‘any other form of harassment’.
42. ANTI-DISCRIMINATION AND HARASSMENT
42.1 A solicitor must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes: