No.28 Applying the 'no contact rule’ when the other party is an individual

1. Introduction

1.1. Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2. What are the issues?

The ‘no contact rule’ provides that a solicitor may only deal directly with the client of another solicitor in exceptional circumstances. 

Often questions arise as to how far reaching the rule applies, especially given the express exceptions.

1.3. Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society (QLS) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of the Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.

This Guidance Statement represents a standard of good practice and is endorsed by the Ethics Committee of the QLS.

2. Ethical principles

ASCR   

Rule 33.1 provides:

33. Communication with another solicitor's client

33.1   In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless: 

         33.1.1 the other practitioner has previously consented;

         33.1.2 he solicitor believes on reasonable grounds that:  

                   (i) the circumstances are so urgent as to require the solicitor to do so; and 

                   (ii) the substance of the communication would not be unfair to the opponent’s client; 

         33.1.3 the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom; or 

         33.1.4 there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after reasonable time, to reply and there is reasonable basis for proceeding with the 

                   communication.  

Rule 33, also referred to as the ‘no contact rule’, reflects the common law. 

Rule 22.4 applies a similar requirement in relation to an insured.

2.1. Discussion

Rule 33 applies where there is:

• another party in a matter (the ‘opposing’ party or client);^[1]
• that party, or another party or witness in the matter, is represented by a solicitor in relation to the matter;
• there is the risk of a solicitor ‘dealing’ directly with the other party on behalf of the solicitor’s client in the absence, or without the permission, of the other party’s solicitor.

A solicitor may not communicate with the other party directly in these circumstances, other than where one of the exceptions in Rule 33 applies.

Rule 33 protects the opposing party,^[2] as a legal practitioner who directly contacts an opposing party might ‘secure damaging admissions, or access to privileged material, or undermine the opponent’s trust in that person’s lawyer’.^[3] However, adherence to this Rule may also be of benefit to the solicitor’s own client as ensuring the other party is represented can guard against future claims such as those related to undue influence or unconscionability.

2.1.1. The scope of Rule 33

Rule 33 applies to most interactions with the opposing party. The starting point is that you may only directly contact another party in order to ascertain if they have legal representation. If the party does have legal representation, then (in most circumstances) you will only be permitted to contact their solicitor.  

There is nothing in the Rule (or the Rules in general) that prohibits social interactions with the opposing party outside of your professional capacity. However extreme care should be taken so as to ensure you do not inadvertently act unethically. Another party, particularly one who may not have a legal education, is unlikely to see the distinction between personal and professional. Rather, all representations of yourself run the risk of being presented as professional.^[4]

2.1.2. What are ‘urgent’ circumstances?

The fact that Rule 33 is limited by ‘urgent’ circumstances can give rise to some questions. 

When a solicitor is faced with a situation where the matter is so urgent that the solicitor must communicate with the opposing party, the solicitor can only do so if the communication would not be unfair to the opposing party. The solicitor should thereafter advise the opposing party’s solicitor (if there is one) of the communication.

2.1.3. How does Rule 33 apply to self-represented litigants?

Self-represented parties often get occasional advice or assistance from community legal services or other solicitors.

This may cause you difficulties in terms of the ‘no contact rule’.

The position is clear when the other lawyer is on the court record or has stated that they are instructed or acting, but otherwise you need to proceed with caution. Just because the party has had some advice from a lawyer does not mean they are legally represented in terms of these rules.

Generally it is safe to continue to deal directly with the other party until advised that a solicitor is on the record, or is acting, or the other party has given you authority to speak with their lawyer, but in case of doubt, seek confirmation of the position from the other party, or the other lawyer if you know who they are. 

Please see Guidance Statement No. 9 – Dealing with Self-represented Litigants and Self-represented Litigants: Guidelines for Solicitors both on the QLS website for more information.

2.1.4. What if the opposing party contacts me directly?

If any of the exceptions to Rule 33 are not present, you must avoid communicating with the other party. This applies even if the opposing party contacts you directly. As stated above, the general position is that you may only contact the opposing party to ask if they have legal representation. 

If the other party does have a solicitor, you should not contact them instead and inform the solicitor of the communication.

As stated above, if the other party states that they do not have legal representation, you are free to contact them (albeit with the special care afforded to self-represented litigants).

2.1.5. What if the other party’s solicitor will not respond to me?

If the opposing solicitor is not responding to your attempts to contact them, and you have taken all reasonable steps to contact them, you are permitted to contact the opposing party. However, this is only for the purposes of asking if they have retained new legal representation. 

If new solicitors have not yet been appointed but are expected to be appointed shortly, then you should ask the opposing party to instruct their new solicitor to contact you.

Care should nonetheless be taken when dealing directly with the opposing party (in this instance as well as generally). Proper file notes should be kept and the situation monitored carefully. If at a later stage it appears that a legal representative has been assigned to or retained in the matter, the solicitor should immediately cease direct contact with the authorised representative.

2.1.6. How does Rule 33 apply to ‘second opinions’?

If a party who is represented by another solicitor approaches you to ask for your advice on their case (what may be deemed a ‘second opinion’) you should proceed with caution.

While the rationale of Rule 33 seems to be to prevent solicitors on opposing sides from contacting the other’s client(s), you may still offend Rule 33 by acting carelessly in this situation. 

The general law recognises the need to protect the relationship of trust between a solicitor and a client, and it would be inconsistent with that protection for the second opinion to extend to disparagement of the first solicitor or an attempt to undermine the existing professional relationship.

See also Guidance Statement No. 27 – Second Opinions (Published Date 13 October 2021). 

2.1.7. Does Rule 33 extend to witnesses?

The ‘chief rationale’ of Rule 33 ‘… is to prevent a lawyer from circumventing the protection that legal representation provides to a client’.^[5] The prohibition against contact also includes communications with witnesses when a lawyer knows that the witness is represented. However, given the general rule that there is no property in a witness, a solicitor giving advice to someone who is simply a witness may consider it prudent to make the witness available to both sides.

2.1.8. What if a family member wants me to take over a matter for a client?

In some practise areas, particularly criminal and family law, a solicitor may be contacted by a client’s family and asked to take carriage of a matter where the client is already represented by another firm. In this circumstance, a solicitor cannot directly contact that client who is already represented. The solicitor needs to wait until that client makes independent contact with you and expresses a desire to change firms.

2.1.9. When Rule 33 does not apply?

Rule 33 does not apply to work that might otherwise be seen as legal, but where there is no ‘opposing party’. Not all forms of the work undertaken by a solicitor involve ‘dealing’ with an ‘opposing’ party, or other party involved in such a matter, for or on behalf of a client. For example, a conference with an expert or other witness or a routine interaction with court staff or a government department would not fall into this category. 

There are also activities regularly performed by solicitors which may not be ‘legal work’ at all (such where a solicitor is a board member or member of a community group,^[6] an industry body or a delegation to government), but which will involve dealings or negotiations with a wide range of parties, some of whom may be represented. Solicitors should take care that their role in such situations is clear.

Other types of legal work commonly engaged in by solicitors may also entail sufficient independence such that there could not properly be said to be an ‘opposing’ party. This may include some types of alternative dispute resolution and collaborative practice, as well as probity or process auditing or monitoring, where otherwise consistent with those roles and any applicable procedures.

 3. More Information

Solicitors are referred to: 

• The Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
• Guidance Statement No. 29 – Applying the ‘no contact rule’ when the other party is an organisation (13 October 2021).
• Guidance Statement No. 27 – Second Opinions (13 October 2021).

For further assistance please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au .

Updated 1 November 2024

^[1] Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 7^th ed, 2021) [21.240] citing Jones v Jones (1847) 5 Notes of Cases in the Ecclesiastical and Maritime Courts 134, 140; See also Day v Woolworths Limited [2018] QSC 82, [5]; Law Institute of Victoria, Communicating with another Practitioner’s Client (Guidelines, 20 December 2012), 1.

^[2] Dal Pont (n 1) [21.240].

^[3] Legal Services Commissioner v Bradshaw [2008] LPT 9, [26].

^[4] Gino Dal Pont, ‘Getting up close and personal: upholding the letter and spirit of the “no contact” rule’ (2010) 37(3) Brief 22.