Traditionally, it has been a defence to disciplinary prosecution that a lawyer sought and followed advice from their professional body. Hutley JA said in Law Society of NSW v Moulton [1981] 2 NSWLR 736:
‘The true significance of the rulings of the Law Society in relation to professional misconduct was pointed out by Lord Reid in Brown v Inland Revenue Commissioners [1965] AC 244 at p 258, where the solicitor had acted in conformity with the ruling of the council of the Law Society of Scotland, a ruling which the House of Lords considered was inconsistent with the law. His Lordship said:
“This opinion … negatives any possible suggestion of professional malpractice by the appellant or any other solicitor who has acted in accordance with it.”
In other words, a positive, but erroneous, advice from the Law Society may constitute a defence to a charge of malpractice.’
