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LEGAL PROFESSION UNIFORM LAW AUSTRALIAN SOLICITORS' CONDUCT RULES 2015 - REG 21
Responsible use of court process and privilege
21 Responsible use of court process and privilege
21.1 A solicitor must take care to ensure that the solicitor's advice to
invoke the coercive powers of a court: 21.1.1 is reasonably justified by the
material then available to the solicitor,
21.1.2 is appropriate for the
robust advancement of the client's case on its merits,
21.1.3 is not made
principally in order to harass or embarrass a person, and
21.1.4 is not made
principally in order to gain some collateral advantage for the client or the
solicitor or the instructing solicitor out of court.
21.2 A solicitor must
take care to ensure that decisions by the solicitor to make allegations or
suggestions under privilege against any person: 21.2.1 are reasonably
justified by the material then available to the solicitor,
21.2.2 are
appropriate for the robust advancement of the client's case on its merits, and
21.2.3 are not made principally in order to harass or embarrass a person.
21.3 A solicitor must not allege any matter of fact in: 21.3.1 any court
document settled by the solicitor,
21.3.2 any submission during any hearing,
21.3.3 the course of an opening address, or
21.3.4 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.
21.4 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: 21.4.1 available
material by which the allegation could be supported provides a proper basis
for it, and
21.4.2 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.
21.5 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.
21.6 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).
21.7 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.
21.8 Without limiting the generality
of Rule 21.2, in proceedings in which an allegation of sexual assault,
indecent assault or the commission of an act of indecency is made and in which
the alleged victim gives evidence: 21.8.1 a solicitor must not ask that
witness a question or pursue a line of questioning of that witness which is
intended: (i) to mislead or confuse the witness, or
(ii) to be unduly
annoying, harassing, intimidating, offensive, oppressive, humiliating or
repetitive, and
21.8.2 a solicitor must take into account any particular
vulnerability of the witness in the manner and tone of the questions that the
solicitor asks.
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