Ethical Guidance

The Law Society’s Legal Officers provide an independent Ethics Inquiry Service for practitioners seeking clarification of their professional duties and responsibilities. The guidance below summarises frequently encountered ethical obligations raised by practitioners using this service, separated into the relevant sections of the South Australian Legal Practitioner Conduct Rules (SALPCR).

Fundamental Ethical Duties (SALPCR 4, 5)

• Deliver legal services competently, diligently and promptly as reasonably possible.
• Maintain integrity and professional independence.
• Act in your client’s best interests.
• Be honest and courteous in all dealings in the course of legal practice.
• Do not engage in conduct in the course of legal practice or otherwise that:
• Demonstrates you are unfit to practise; or
• Undermines confidence in the justice system or brings the profession into disrepute.
• Comply with the law and conduct rules.

Relations with Clients (SALPCR 7, 8)

• Communicate clearly and in a timely way.
• Follow only lawful, proper and competent instructions.
• Client instructions should always be confirmed in writing.
• Be cautious when receiving instructions from a third party (e.g. relative, friend, advisor). It may be difficult to identify whether the third party is conveying the client’s genuine instructions, and your duty is solely to the client (subject to duties to the court).
• A client may authorise a third party to instruct on their behalf, but such authority should be written and freely given (ideally via power of attorney).
• When multiple parties are involved, confirm the identity of your client at the outset in the retainer or costs agreement.
• If your client’s capacity is uncertain, raise the issue with your client and explore avenues to confirm capacity (including obtaining appropriate medical advice) before taking instructions.

Independence and Paramount Duty to the Court (SALPCR 3, 17)

• Always remain independent and exercise forensic judgment in your dealings with your client. You are not your client’s mere mouthpiece.
• If a client rejects your advice without a reasonable or rational basis, do not allow them to dictate the course of action. Critically consider whether you can, and should, continue to act.
• If you proceed without making this assessment, you are at risk of compromising your independence and breaching your obligation to exercise forensic judgment and to act in your client’s best interests. You may also breach your duty to the Court, if the client insists that you issue proceedings or maintain an application which you consider lacks merit and is against your advice.
• As an officer of the Court, you have a paramount duty to the Court and to the administration of justice. The performance of this duty may require you to act in a way to the possible disadvantage of your client.
• Do not deceive or knowingly or recklessly mislead the Court. If you become aware that something said to the Court was misleading, take immediate steps to correct it.
• Never deal with the Court in a way that suggests personal familiarity or special favour.

Confidentiality (SALPCR 9)

Do not disclose confidential client information to a third party unless you are relying on one of the following exceptions:

• You have express or implied authority;
• You are permitted or compelled by law to disclose;
• You are obtaining advice on your legal or ethical obligations;
• To prevent the probable commission of a serious offence;
• To prevent serious imminent physical harm to a person; or
• To notify your insurer, law practice or associated entity.

If disclosure is justified pursuant to one of these exceptions, record your reasoning for disclosure, de‑identify and redact wherever possible, and only disclose the necessary information.

If you are dealing with a threat of self-harm or harm of a third-party, consider the following:

• Contact the Society’s Legal Officers for guidance.
• Discuss with a senior colleague / principal.
• Contact the police for a welfare check.
• Only disclose information required for the purpose of containing the threat.
• Keep a record of your decision-making process.
• Consider whether you can continue to act for the client.
• Remember that there is no ethical obligation to break confidentiality. Rather, it is a personal choice.

What to do if your file gets subpoenaed?

• Has your file been subpoenaed? Protecting privilege when producing documents under compulsion of law, NSW Law Society Journal, May 2012, Volume 50, p. 52

Conflicts of Interest (SALPCR 10, 11, 12)

There are generally three main types of conflicts of interest you may encounter in legal practice:

Former Clients (SALPCR 10):

• To determine whether you can act in a matter involving a former client consider whether you are in possession of confidential information of the former client that:
  • might reasonably be concluded to be material to the matter of another client; and
  • be detrimental to the interests of the former client, if disclosed.
• If so, you must not act unless:
  • The former client has given informed consent for both disclosure and use of the information; or
  • An effective information barrier has been established. See Information Barrier Guidelines adopted from the Law Society of NSW.

Current Clients (SALPCR 11):

• Avoid conflicts between the duties owed to two or more current clients when acting for them in the same or related matters.
• If you wish to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interest of each client, do not act unless:
  • You can always act in the best interest of each client.
  • Each client is aware that you or your law practice are acting for the other client.
  • Each client has given informed consent to you or you law practice to act.
  • Additionally: you must also not act or continue to act where you come into possession of information, which is confidential to the first client, but which might reasonably be concluded to be material to the other client and detrimental to the interest of the first client if disclosed, unless:
    • Each client has given consent which permits disclosure and use of the information for the benefit of the other client; or
    • An effective information barrier has been established to protect the confidential information of each client.

Conflict with your Own Interest (SALPCR 12)

• Do not act in a matter where there is a conflict between your duty to serve the best interests of the client and your own interests.
• Do not engage in conduct which would either lead or would be likely to lead a client or third party to give you a benefit which is more than your fair and reasonable remuneration for legal services provided, or which is not reasonably incidental to the services being provided.
• Do not borrow money from or lend money to a client, as it may compromise your independence and create inappropriate personal interests.
• It is permissible to receive a financial benefit from a third party for referring a client, provided that the client is given prior notice of the benefit, provides informed consent to the benefit, and is given the option to refuse to accept the referral.
• It is permissible to act for a client where you paid a third party for referring the client, provided that the client is given prior notice of the payment to the third party.
• It is permissible to prepare a will under which you or your associate are appointed executor, provided that you inform the client in writing before the client signs the will:
  • Of any entitlement to claim executor’s commission or remuneration for professional services performed in administering the estate (commonly known as a charging clause); and
  • If you have an entitlement to claim commission, that the client could appoint as executor a person who might make no claim for executor’s commission.
• It is best practice to avoid acting for family and friends, as you have an interest in preserving that personal relationship.

Termination of Retainer (SALPCR 13)

You must complete a matter unless:

• The client agrees or discharges you;
• You withdraw for just cause and on reasonable notice; or
• The engagement ends by law.

Just Cause

• Whilst ‘just cause’ is not defined in the Conduct Rules, helpful guidance is provided in GE Dal Pont, Lawyers Professional Responsibility (8^th, 2025) at [3.205] as follows:
  • Actions or omissions by the client that would be inconsistent with continued representation such as:
    • Client committing significant breach of the costs agreement; or
    • Client misrepresenting material facts of the matter; or
    • Client insisting that you commit a breach of the law; or
    • Client clearly confirming that they have retained or will retain another lawyer; or
    • Client indicating that the trust relationship has broken down to the point where it has compromised the retainer.
  • Legal Aid is withdrawn, and the client is unable to make other satisfactory arrangements for payment of the lawyer’s costs for remainder of the retainer.
  • Continued representation would require the practitioner to commit a breach of their professional obligations.
  • The practitioner is operating under the constant threat of a potential claim for negligence.
  • Continuing representation by the practitioner would have seriously adverse effect on the practitioner’s health.
  • The practitioner has died or lost capacity.
• ‘Just cause’ may be established where the necessary relationship of mutual trust and confidence between solicitor and client has been eroded.

Reasonable notice

This depends on the matter’s stage, complexity and deadlines.

In criminal matters, non‑payment alone rarely justifies withdrawal unless written notice (at least 7 days before trial) is given to the client and Registrar.

Where civil proceedings are underway, you may need leave (permission) from the Court to cease acting, depending on the Court or Tribunal and the progression of the matter. 

Client Documents (SALPCR 14)

Return client documents promptly on request unless exercising a lien for unpaid fees. Release once reasonable security is provided.

Do not charge retrieval fees without consent.

Delinquent Clients (SALPCR 20)

If a client or witness admits to lying or falsifying evidence, stop acting unless authorised to inform the Court.

Responsible Use of Court Process (SALPCR 21)

Only advise using a court’s coercive powers when:

• The advice is reasonably supported by the available material;
• It is a proper and proportionate way to advance the client’s case on its merits;
• It is not intended principally to harass or embarrass anyone; and
• It is not aimed at gaining an improper out-of-court advantage for the client, you or a third-party.

Material Witness (SALPCR 27)

If you must give evidence which will be material to the determination of contested issue, you cannot continue as advocate in the hearing.

Another Legal Practitioner's or Other Person’s Error (SALPCR 30)

Do not take unfair advantage of an obvious error to secure an improper benefit that cannot be supported in law or fact.

Inadvertent Disclosure (SALPCR 31)

If you receive material clearly sent in error which you reasonably suspect is confidential:

• Stop reading;
• Immediately return, delete, or destroy it (as appropriate); and
• Notify the sender.

Do not use or disclose such information, even if instructed by your client.

Unfounded Allegations (SALPCR 32)

Ensure that any allegations of misconduct against another practitioner are only made in good faith and on reasonable grounds.

Communicating with Another Practitioner’s Client (SALPCR 33)

Do not contact a represented person unless:

• The other practitioner has previously consented.
• You believe on reasonable grounds that the circumstances are so urgent that you are required to do so, and the substance of the intended communication will not be unfair to the opposing practitioner’s client.
• The sole purpose of the communication is to ascertain whether the party to a matter is represented and if so by whom.
• You gave notice of your intention to make such direct contact with the opposing client, but the opposing practitioner has failed to respond after a reasonable period for a reply and there is a reasonable basis for proceeding with intended communication.

Dealing with Other Persons (SALPCR 34)

Do not:

• Make misleading statements which:
  • grossly exceed the legitimate assertion of the rights and entitlements of your client.
  • mislead or intimidate the other person.
• Use tactics that go beyond legitimate advocacy, and which are primarily designed to embarrass or frustrate another person.

Advertising (SALPCR 36)

Ensure all advertising is accurate, lawful and not misleading, offensive or prohibited by law.

The Practice Management Hub's Managing a Law Practice has more information about marketing your law practice.

Bullying, Discrimination and Harassment (SALPCR 42)

In the course of or in connection with legal practice or your profession, do not engage in conduct which constitutes:

• discrimination;
• sexual harassment;
• any other form of harassment; or
• workplace bullying.

Also note that the extended definition “…or in connection with legal practice” which captures inappropriate behaviours that occur outside the traditional or usual workplace environment, such as work-related events. 

For more information about bullying, harassment and discrimination for individual legal practitioners and law practices, please see the Bullying, Discrimination and Harassment Resource Hub.

Need more specific advice?

The Ethics Inquiry Service provides members of the legal profession with guidance in relation to ethical issues. The service is provided by legal practitioners employed in the Law Society’s Ethics and Practice Unit and is of a general nature.