Costs and Ethics: What’s New in 2021?
1. The Law Council of Australia Review of the Australian Solicitors Conduct Rules.
The Law Council at the beginning of 2021 has under consideration a review of the Australian Solicitors’ Conduct Rules on 1 February 2018 (The Review). From the Review at Part A Background paras 1-32 in particular it is possible to see both the steps taken by the Law Council since 1992 to successfully establish and promote the ASCR as the agreed set of professional conduct rules for all solicitors in Australia and also the continuing concern occasioned by this success as to whether the ASCR have binding force because they are now legislative rules or because they are a nationwide exercise in professional self-regulation.
Each jurisdiction has its own professional conduct rules legislation and rules of Court may also embody the obligations of practitioners and parties to the Court and to each other. “Self-regulation” by professional bodies and in its turn regulation by the courts have largely given way to regulation by third party regulators such as the Legal Services Commissioners of Queensland, New South Wales and Victoria.
If currently what we have in the ASCR is not ethical obligations reflecting what we should and should not do but binding rules being treated as establishing what we must and must not do ,which is is perhaps what the status of professional rules point to, can the ASCR do more for us?
2. Can the ASCR do more for us?
The statutory framework of professional conduct responsibility operates at three levels. First it operates personally on practitioners by concepts such as unsatisfactory professional conduct, and professional misconduct. Secondly it operates at professional level, by giving to regulators the enforcement of these concepts by disciplinary action.
However, it is at the third level of a law practice itself that partners, owners or management within the law practice are able to influence, positively or negatively, the professional behaviour of the members and employees of that practice. In other words, it is for the law practice to map and operate an ethical infrastructure. The term, “ethical infrastructure”, coined by the American scholar Schneyr as recently as 1998 means the management policies and procedures that can encourage ethical behaviour and support an ethical environment. Just as organisational psychologists talk of a communication climate in an organisation, lawyers can talk of an ethical climate or ethical environment in a law practice. There is growing recognition, for example, that unethical behaviour is not a necessary attribute of any particular fee model adopted by the law practice but that the operation of the ethical infrastructure can make unethical behaviour such an attribute.
What an ethical infrastructure requires is a shared understanding by all members of the scope of the responsibilities encompassed by the ethical infrastructure for successful communication and enforcement of those responsibilities.
If this be so it is perhaps surprising that the ASCR do not manifest a commitment to the establishment and support of an ethical environment in law firms instead of the incomplete rules, rr36-43, of the ASCR division titled “Law Practice Management."
3. Defining Gross Overcharging.
We can define more easily gross overcharging and it is only by doing this that it will be detected and dealt with successfully.