21. Responsible use of court process and privilege

    1. A solicitor must take care to ensure that the solicitor's advice to invoke the coercive powers of a court:
      1. is reasonably justified by the material then available to the solicitor;
      2. is appropriate for the robust advancement of the client's case on its merits;
      3. is not given principally in order to harass or embarrass a person; and
      4. is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.
    2. A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person:
      1. are reasonably justified by the material then available to the solicitor;
      2. are appropriate for the robust advancement of the client's case on its merits; and
      3. are not made principally in order to harass or embarrass a person.
    3. A solicitor must not allege any matter of fact in:
      1. any court document settled by the solicitor;
      2. any submission during any hearing;
      3. the course of an opening address; or
      4. the course of a closing address or submission on the evidence,
        unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.
    4. A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:
      1. available material by which the allegation could be supported provides a proper basis for it; and
      2. the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
    5. A solicitor must not make a suggestion in cross-examination on credit unless the solicitor believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
    6. A solicitor may regard the opinion of an instructing solicitor that material which is available to the instructing solicitor is credible, being material which appears to the solicitor from its nature to support an allegation to which Rules 21.1, 21.2, 21.3 and 21.4 apply as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).
    7. A solicitor who has instructions which justify submissions for the client in mitigation of the client's criminality which involve allegations of serious misconduct against any other person not able to answer the allegations in the case must seek to avoid disclosing the other person's identity directly or indirectly unless the solicitor believes on reasonable grounds that such disclosure is necessary for the proper conduct of the client's case.
    8. Without limiting the generality of Rule 21.2, in proceedings in which an allegation of domestic or family violence, sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:
      1. a solicitor must not ask that witness a question or pursue a line of questioning of that witness which is intended:
        1. to mislead or confuse the witness; or
        2. to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; and
      2. a solicitor must take into account any particular vulnerability of the witness in the manner and tone of the questions that the solicitor asks.
    9. A solicitor does not infringe rule 21.8 merely because:
      1. the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of a statement made by the witness, or
      2. the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

Guidance statements

No.32 Solicitors commenting to the media

The purpose of this Guidance Statement is to outline the ethical issues that practitioners should consider if they wish to comment on their client’s matter to the media under the Australian Solicitors Conduct Rules 2012 (‘ASCR’) and the common law. *Updated 22 October 2024

No.31 Courtesy in communications

This Guidance Statement outlines the fundamental duty of honesty and courtesy in communications with colleagues and provides guidance on how to respond to discourtesy. *Updated 22 October 2024