Dob-in rule lurks in Victorian solicitors’ practice rules

A newish conduct rule compels solicitors to report every dishonest act by another practitioner, and every act which is prejudicial to the administration of justice or which would diminish public confidence in its administration. This is not just my fancy; the Law Institute itself says that the rule requires dobbing in and is not only about self-reporting. Relevantly, rule 30 of the Professional Conduct and Practice Rules 2005 says (and this is not a quote):

A practitioner must promptly disclose the occurrence of any conduct which is dishonest, or calculated, or likely to a material degree, to:
(a) be prejudicial to the administration of justice; or
(b) diminish public confidence in the administration of justice.

The caselaw on conflict says time and time again that to act in the face of certain types of conflict of duties or of duty and interest would be to bring the administration of justice into disrepute. For example, Bryson J of the Supreme Court of New South Wales said in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at 123 that “the spectacle or the appearance that a lawyer can readily change sides is very subversive of the appearance that justice is being done”. See too, for example, Fruehauf Finance Corp Pty Ltd v Feez Ruthning [1991] 1 Qd R 558 at 566; Wan v McDonald (1991) 33 FCR 491 at 513-514; Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112; McVeigh v Linen House [1999] 3 VR 394 at 398; Westend Entertainment Centre Pty Ltd v Equity Trustees Ltd [1999] VSC 514 at [27]; World Medical Manufacturing Corp v Phillips Ormonde & Fitzpatrick Lawyers [2000] VSC 196 at [87] and [88].

So, the rule means that deliberately not to report another lawyer acting in the face of a conflict is a breach of the rules and necessarily amounts to misconduct. The rule just sits there, ignored, a nice thing to have on the Law Institute’s website, a bit like the copyright law of Vietnam.

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