On 1 June 2012 the Australian Solicitors Conduct Rule (ASCR) will commence. The ASCR replaces the Solicitors Rule 2007. The ASCR rules provide a guideline for lawyers when making ethical decisions. These rules apply to all lawyers (solicitors) within Australia, including Australian-registered foreign lawyers.
First of all, lawyers in Australia have paramount duty to the court and the administration of justice which prevail to the extent of inconsistency with any other duties. Lawyers must act in the best interest of a client in any matter and be honest and courteous in all dealings when performing legal duties. Lawyers however must not engage in conduct that is not fit and proper when practicing law. This is especially the case when it can be prejudicial; diminish the public confidence or the administration of justice and to bring the profession into disrepute.
It is important for lawyers to provide timely and clear advice to assist clients to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter. Lawyers however must keep its confidential duty at all times. Lawyers during the client’s engagement must not disclose anything to any other person who is not a partner, director, principal, employee or any other persons relating to the legal practice. Nevertheless, lawyers may disclose client’s confidential information only if the client expressly or impliedly authorizes to disclose, lawyers are permitted or is compelled by law to disclose; lawyers disclose the information for the purpose of avoiding commission of a serious criminal offence.
Lawyers must avoid conflicts between the duties owed to current and former clients. If lawyers need to represent two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, lawyers must not represent one of the clients.
Lawyers with designated responsibility for a client’s matter must ensure completion of the legal services for the matter unless such legal practice is discharged with client’s consent, discharged from the engagement by the client, terminates with reasonable notice, the engagement comes to an end by operation of law. Client document here means documents to which a client is entitled. Lawyers with designated responsibility for a client’s matter must ensure that upon completion or termination of the legal practice’s engagement, lawyers may destroy client documents after a period of seven (7) years has elapsed. This means that lawyers must retain, confidentially and securely for at least six (6) years.
When you represent more than one client in a matter, client documents including but not limited to briefs, instructions, drafts, copies made for the client’s benefit of letters received, file notes, memorandums would belong to all clients jointly. Such client documents can only be given to third party with consent of all clients. Each client is entitled to have a copy of the relevant jointly-owned documents at their own expense.
Most client documents however are considered as client’s property. However please note that NOT ALL DOCUMENTS handed to lawyers will be the client’s property. Some client documents would be considered as lawyer’s property. You would need to make such distinguishment. What are considered as client’s document would be documents prepared by lawyers for the client or predominately for the purposes of the client or matter. Documents that are received by lawyers from a third party in the course of retainer and that document is for the purpose of client’s matter and was intended for the use or information of that client.