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Snapshot

  • 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:
42.1.1 discrimination,
42.1.2 sexual harassment, or
42.1.3 any other form of harassment, or
42.1.4 workplace bullying.

The purpose of these amendments is to:

  • clarify that Rule 42 applies to conduct that occurs in any setting connected to the practice of law;
  • ensure that professional disciplinary bodies can appropriately respond to matters concerning sexual harassment as either unsatisfactory professional conduct (‘UPC’) or professional misconduct (’PM’); and
  • express the profession’s collective view that discrimination and harassment (and, in particular, sexual harassment) are unacceptable conduct in any situation connected to the practice of law.

Fit and proper person

The LCA’s intention is to make it clear that discrimination, sexual harassment, workplace bullying and any other forms of harassment, can result in a finding of professional misconduct or unsatisfactory professional conduct and can lead to possible disciplinary action under Rule 2.3. Such conduct is central to whether a person is a fit and proper person to be a solicitor.

Rule 32: Unfounded allegations

The LCA intends to review the Commentary to Rule 32, where sexual and other unlawful harassment allegations are made against another Australian legal practitioner in the context of UPC or PM. Any allegation must be bona fide and in the belief ‘on reasonable grounds’ that there is available material in support of the allegations.

Conduct definitions

In the Glossary to the ASCR, the definition of ‘workplace bullying’ is similar to the definition in s 789FD of the Fair Work Act 2009 (Cth). There is a broader and more generic definition of unlawful ‘harassment’ and a specific definition of ‘sexual harassment’ is retained.

‘discrimination’ means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
‘sexual harassment’ means an unwelcome sexual advance, request for sexual favours, or otherwise engaging in other unwelcome conduct of a sexual nature to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
‘sexual harassment’ means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
‘workplace bullying’ means bullying that is unlawful under the applicable state or territory anti-discrimination or human rights legislation or constitutes bullying at work under Commonwealth legislation. If no such legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms, it includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.

Personal relationships with clients

Currently, there are no specific rules prohibiting sexual relations between a solicitor and client, however it could be seen as unethical conduct under Rule 4 (acting in a client’s best interests) and contrary to Rule 12 (Conflicts concerning a solicitor’s own interests).

Under Rule 123 of the Uniform Conduct (Barristers) Amendment Rule 2022, a barrister must not engage in conduct which constitutes discrimination, sexual harassment, or bullying (rule 123(1)). Under rule 123(2), this includes ‘interactions with a person with whom the barrister has, or has had a professional relationship’.

Barristers Rules

The Australian Bar Association clearly shares the same views and concerns. In February 2022, the Legal Services Council amended Rule 123 (Anti discrimination and harassment) and Rule 125 (definition of bullying) of the Uniform Conduct (Barrister) Rules 2015, and  adopted  similar terminology ‘… in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes discrimination, sexual harassment or bullying….’ And specifically says that this conduct is not limited to, ‘… conduct at social functions connected to the bar or the legal profession...’



Sue Cohen
is a Professional Support Solicitor at the Law Society of New South Wales.