Ethos Spring 2021

Page 24

ETHOS . LAW SOCIETY OF THE ACT JOURNAL

Ethics and standards in practice Communication with another solicitor’s client

A solicitor must not deal directly with the client or clients of another solicitor except in the circumstances prescribed in Rule 33 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT). This rule is known across the legal profession as the ‘no-contact’ rule. The following case studies are intended as guidance for members who might be faced with similar circumstances.

Contact by the opposing (legally represented) party A member contacted me to discuss how to manage communications with the opposing side in a matter in which she was acting for a client in a legal dispute. The member explained that on more than one occasion she had been contacted by the opposing party to the dispute. The contact was by telephone. As this person was legally represented, the member explained that she was unable to communicate with him, and that all communications should be through his appointed solicitor. The caller explained in one telephone call that his solicitor in the matter

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had consented to the caller speaking directly to the member. This revelation caused the member to contact me for guidance on how to proceed.

The Rule Rule 33 prohibits direct contact with the client of another solicitor. The former Rule 281 provided that: “A practitioner who is acting on behalf of a party in any proceedings or transaction must not communicate directly with any other party for whom, to the practitioner’s knowledge, another practitioner is currently acting, unless…” The current rule provides that a solicitor: “…must not deal directly with the client or clients of another practitioner unless…” 1. Legal Profession (Solicitors) Rules 2007 – repealed.

It is a reasonable interpretation to conclude that the rule refers to the client or clients of another practitioner in the same or related matter. In any event, the member’s concern arose out of being contacted by the other party in the same matter. The first exception to Rule 33 permits communication where “the other practitioner has previously consented”. I accept that there may be some limited circumstances in which a practitioner might previously consent to a client communicating with the opposing party’s legal representative, although I admit a real struggle to identify them. However, generally it would be highly irregular, if not utterly alarming, for the provision


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