The dash to mediocrity

Law Council fails to justify ethically flawed solicitors' conduct rules ... Law Society of New South Wales covers the problem in waffle ... Theodora on the barricades about conflicts and client "consent"

The Law Council of Australia didn't try very hard to come up with an imaginative response to my editor's story about the flawed solicitors' conduct rules.

The story was here in Justinian and here in The Sydney Morning Herald. 

The two most objectionable rules singled out for criticism both relate to watering down the information to be given clients about a solicitor's potential conflicts.

See the new conduct rules HERE.

Rule 11 will allow solicitors to rely on "implied consent" when concurrently acting for two clients whose interests are "adverse".

For instance, if the information about the conflict is buried in a detailed retainer agreement that would be sufficient to establish "consent".

Rule 12 permits solicitors to accept referral fees if they have "informed consent". The problem is they don't have to inform the client how much they are trousering.

These two rules alone represent a lowering of fiduciary standards, dressed up as "consumer protection".

While the rules seek to protect solicitors from ethical complaints, it opens lawyers to civil actions for breach of duty.

The editor's outpouring included a swipe at the Chief Justices, who should have put a stop to this proposed lax regime, which we understand was supported and driven by the LCA's Large Law Firm Group.

The lame rebuttal from the new president of the LCA, Alex Ward, majestically avoided addressing the central allegations.

Instead, he fearlessly denied something than had not been asserted.

"It is incorrect to assert or imply that the Chief Justices of this country had any part to play in the creation or approval of, the Australian Solicitors' Conduct Rules.

To suggest otherwise is mischievous and unhelpful in any rational debate on the appropriateness or otherwise of the content of the rules...

The Law Council welcomes informed comment on the contents of these rules, but to imply that the Law Council process was unduly influenced by one of its constituencies, or anyone else, is wrong."

There was no attempt to justify the vice at the heart of the issue.

As they stand, these rules, with their half-baked disclosure requirements, represent a dash to mediocrity.

The Law Society of New South Wales also skirted the issue. Asked about this dilution of fiduciary responsibility back came an artfully crafted PR response:

"The Law Society of New South Wales supports uniform national conduct rules for solicitors and has been closely engaged in the development process of the Australian Solicitors Conduct Rules. This has included making suggestions about the content and drafting of a number of the proposed rules... The Law Society always welcomes submissions on proposed new rules in response to this [consultation] process. The Law Society Council will consider the Australian Solicitors Conduct Rules in their final form, and their adoption in NSW, in the coming months."

It is understood that Western Australia and South Australia are not supportive of the rules as they stand.

We may end-up with a national profession without unified rules.

Let's hope that the AGs and the CJs wise up to what's happening and do something...