Rule 43 of the consultation draft of the National Legal Professional Solicitors Rules 2010 refers to “Dealing with the regulatory authority”. Rule 43 (1) specifies that:-
Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with the regulatory authority.
Rule 43 (2) contains a compulsion on solicitors to answer the regulators’ questions. It is not difficult to foresee instances of the regulator compelling solicitors under threat of prosecution or disbarment (which follows from non-observance of the rules) to provide information. In the spirit of the Star Chamber, the rules effectively impose a duty “to co-operate” with the regulator.
In Queensland, the Legal Profession Act Qld 2007 reserves the practice that Solicitors are officers of the court. This is unlike NSW where rules of court go to some trouble to specify the contrary.
Can it therefore be said – at least in Queensland – that solicitors are part of the judicial branch of government? In contrast, the regulator is a creature of the executive and parliament.
Lawyers have many duties: to the court, to the client, to the community and to colleagues. Duty to the executive is not one of them. Indeed the duty to the community requires that we are free to challenge government, for example in respect of unfair or one-sided laws.
Rule 43 would renders lawyers potentially subservient to the regulator and through it to the executive.
The independence of the legal profession and the doctrine of “separation of powers” demands that it has no such subservience.
There is already a large imbalance in the power exercised by the industry regulator on the one hand and the resources of individual lawyers. The regulator relies on its extensive financial resources to achieve compliance by coercion i.e. the threat of prosecution to which members invariably waver. Any enlargement of the regulators’ powers will, contrary to the public interest, correspondingly enlarge this imbalance of power.
Rule 43 is, in any event, superfluous. The professional regulator has adequate statutory authority to regulate members of the profession and should not be given any further capacity to adversely influence the administration of justice.
Lawyers are the last line of the defence for public and should not, in such a role, be hamstrung to any extent and certainly not with the threat of a “failing to cooperate with the regulator” charge.
Other industry regulators such as the ACCC apparently do not feel the need to gain assistance from the rules of, for example, the professional body for retailers or tradespersons.