26Responsible use of court process and privilege (ASCR 21)

26 Responsible use of court process and privilege (ASCR 21)

(1)  A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court –

(a) is reasonably justified by the material then available to the solicitor; and

(b) is appropriate for the robust advancement of the client’s case on its merits; and

(c) is not made principally in order to harass or embarrass a person; and

(d) is not made principally in order to gain some collateral advantage for the client or the solicitor or the instructing solicitor out of court.

(2)  A solicitor must take care to ensure that decisions by the solicitor to make allegations or suggestions under privilege against any person –

(a) are reasonably justified by the material then available to the solicitor; and

(b) are appropriate for the robust advancement of the client’s case on its merits; and

(c) are not made principally in order to harass or embarrass a person.

(3)  A solicitor must not allege any matter of fact in –

(a) any court document settled by the solicitor; or

(b) any submission during any hearing; or

(c) the course of an opening address; or

(d) 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.

(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 –

(a) available material by which the allegation could be supported provides a proper basis for it; and

(b) 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.