It is trite to observe that a lawyer acts on the instructions of a client. Indeed, a lawyer who purports to act without instructions may face costs and disciplinary consequences.
The client’s instructions, as encapsulated in the retainer, broadly speaking set what can be described as the parameters of the lawyer’s legal obligations to the client. As is well established, though, it does not exhaust those obligations; indeed, lawyer duties arising out of a client engagement can override a one-eyed focus on the client. Lawyers owe a duty to the administration of justice, which is paramount, so that should it conflict with obligations to the client, it necessarily takes precedence.
The duty to the administration of justice has various manifestations. Perhaps the main one is that lawyers must refrain from misleading the court, even if this would be in line with client instructions or otherwise benefit the client. But in this column I will focus on two other incidents of this duty, both reflected in the relevant professional rules: the duty not to make serious allegations except with a foundation (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 21.4); and the duty to eschew communications that are intimidating or an excessive claim to rights. (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 30).
Each of these duties, if breached, involves a lawyer using his or her position for an object inconsistent with the proper administration of justice. In the case of unsupported allegations, an important concern is that allegations made in court are immune from a claim in defamation. To utilise this privilege to secure a collateral advantage lacking a present foundation in the facts therefore represents an abuse of process. Its upshot is that such an allegation can, if recounted in the community and through the media, sully the reputation of a person before any evidence has been offered and scrutinised.
In the classic Australian case, Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 193, the appellant barrister was struck off as a result of his “unrestrained and vicious public attack on [a solicitor], making allegations of the most serious and damaging nature, which, so far as any evidence which he had went, could not possibly be substantiated”. Their Honours reasoned as follows (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200):
… from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege … is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence.
That such behaviour is pursued on client instructions, or otherwise with the client’s best interests in mind, hardly palliates its wrongfulness. The same may be said vis-à-vis a lawyer who engages in communications that are intimidating or an excessive claim to rights. In this context, there is likewise a potentially fine line to tread for lawyers, as to which a tribunal has observed that (Legal Services Commissioner v Sing [2007] 2 Qd R 158 at [30] (Legal Practice Tribunal):
With the increasingly intense demands of clients, and the high level of competition which these days characterises the practice of the law, practitioners will inevitably be asked to stretch the limits of their consciences: they must be steadfast not to yield to that temptation.
The latter counsel was seemingly overlooked by a New South Wales solicitor who sent messages to a person who was harassing her client, which threatened “action” against the person’s de facto brother-in-law in circumstances where the underlying allegation was not reasonably open on the facts (Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166). The tribunal remarked that “a legal practitioner cannot hide behind the excuse that ‘my client told me to do this’”, here “correspondence to a person alleging the commission of an offence where there is no proper foundation for the allegation”. In finding that the solicitor had committed unsatisfactory professional conduct, for which she was reprimanded and fined, the tribunal wrote that “practitioners must be extremely careful before resorting to any even arguably threatening conduct and are well advised to err on the side of caution”.
One can feel a degree of sympathy for the said solicitor. She was faced with a client who was in “a state of high distress”, involving crying and refusing to leave unless the solicitor acted on her instructions. The solicitor deposed to being passionate in trying to help the client in a difficult situation, and sought to give an assurance that she was on the client’s side. But it is precisely in challenging cases where the principles of ethical conduct in this regard play their most crucial function.
