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By Lachlan Commins, Patterson Houen & Commins, Lawyers, Sydney

Lawyers will be right on top of the subject matter of this article, but it is also handy knowledge if you have retained the services of a solicitor in dealings and/or negotiations with other parties who are also legally represented:

NEVER CORRESPOND (talk or email) DIRECTLY WITH THE SOLICITOR FOR THE OTHER PARTY. THIS IS WHAT YOU ARE PAYING YOUR SOLICITOR FOR.

Solicitors must abide by certain professional and ethical standards which are set out in the Legal Profession Uniform Australian Solicitor’s Conduct Rules 2015. Rule 33 is entitled “Communications with another solicitor’s client” and forbids direct communication by one solicitor with the client of another in a matter unless certain exceptions apply to the communication (such as urgency, whether the other solicitor has consented to the communication or not replied to any notice of it, or if the purpose of the communication is solely to enquire whether that other party is legally represented).

Accordingly, while you may not be doing anything wrong if you communicate directly or indirectly with the other side’s solicitor (whether directly or through copying them in on emails), don’t be surprised if you get a wrap over the knuckles by your solicitor if they find out! At the very least you will receive a polite notice from the other solicitor requesting that you direct all correspondence through your own solicitor.

Such caution also applies to secret or “on the side” meetings you may be tempted to have directly with the other side without the presence of lawyers. If you ever find yourself being invited to such a meeting, you should always seek the advice of your solicitor before agreeing to it. In most situations, your solicitor will advise against having the meeting, but this may depend on the type and intensity of the matter and the stage of negotiations. Remember, if you agree to such a meeting, you may end up admitting or unintentionally agreeing to something that could be detrimental to your case or your further negotiations. If you would like to have a ‘general chat’ without all the legalese, your solicitor can arrange with the other side to have an informal “without prejudice” meeting where certain issues can be ‘fleshed out’.

Remember: 

Never correspond with the other side directly without first having sought advice from your solicitor; and
Direct all correspondence though your solicitor.

Contact the author directly by email or by telephone

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