New South Wales Consolidated Regulations
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LEGAL PROFESSION UNIFORM LAW AUSTRALIAN SOLICITORS' CONDUCT RULES 2015 - REG 19
Frankness in court
19 Frankness in court
19.1 A solicitor must not deceive or knowingly or recklessly mislead the
court.
19.2 A solicitor must take all necessary steps to correct any
misleading statement made by the solicitor to a court as soon as possible
after the solicitor becomes aware that the statement was misleading.
19.3 A
solicitor will not have made a misleading statement to a court simply by
failing to correct an error in a statement made to the court by the opponent
or any other person.
19.4 A solicitor seeking any interlocutory relief in an
ex parte application must disclose to the court all factual or legal matters
which: 19.4.1 are within the solicitor's knowledge,
19.4.2 are not protected
by legal professional privilege, and
19.4.3 the solicitor has reasonable
grounds to believe would support an argument against granting the relief or
limiting its terms adversely to the client.
19.5 A solicitor who has
knowledge of matters which are within Rule 19.4: 19.5.1 must seek instructions
for the waiver of legal professional privilege, if the matters are protected
by that privilege, so as to permit the solicitor to disclose those matters
under Rule 19.4, and
19.5.2 if the client does not waive the privilege as
sought by the solicitor: (i) must inform the client of the client's
responsibility to authorise such disclosure and the possible consequences of
not doing so, and
(ii) must inform the court that the solicitor cannot assure
the court that all matters which should be disclosed have been disclosed to
the court.
19.6 A solicitor must, at the appropriate time in the hearing of
the case if the court has not yet been informed of that matter, inform the
court of: 19.6.1 any binding authority,
19.6.2 where there is no binding
authority, any authority decided by an Australian appellate court, and
19.6.3
any applicable legislation,
known to the solicitor and which the solicitor has
reasonable grounds to believe to be directly in point, against the client's
case.
19.7 A solicitor need not inform the court of matters within Rule 19.6
at a time when the opponent tells the court that the opponent's whole case
will be withdrawn or the opponent will consent to final judgment in favour of
the client, unless the appropriate time for the solicitor to have informed the
court of such matters in the ordinary course has already arrived or passed.
19.8 A solicitor who becomes aware of matters within Rule 19.6 after judgment
or decision has been reserved and while it remains pending, whether the
authority or legislation came into existence before or after argument, must
inform the court of that matter by: 19.8.1 a letter to the court, copied to
the opponent, and limited to the relevant reference unless the opponent has
consented beforehand to further material in the letter, or
19.8.2 requesting
the court to relist the case for further argument on a convenient date, after
first notifying the opponent of the intended request and consulting the
opponent as to the convenient date for further argument.
19.9 A solicitor
need not inform the court of any matter otherwise within Rule 19.8 which would
have rendered admissible any evidence tendered by the prosecution which the
court has ruled inadmissible without calling on the defence.
19.10 A
solicitor who knows or suspects that the prosecution is unaware of the
client's previous conviction must not ask a prosecution witness whether there
are previous convictions, in the hope of a negative answer.
19.11 A solicitor
must inform the court of any misapprehension by the court as to the effect of
an order which the court is making, as soon as the solicitor becomes aware of
the misapprehension.
19.12 A solicitor must alert the opponent and if
necessary inform the court if any express concession made in the course of a
trial in civil proceedings by the opponent about evidence, case-law or
legislation is to the knowledge of the solicitor contrary to the true position
and is believed by the solicitor to have been made by mistake.
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