Solicitors Rules, rr 25-31

26. Undertakings
A practitioner must honour the undertaking so given strictly in accordance with its terms, and within the time promised, or, if no precise time limit is specified, within a reasonable time.

27. [Undertakings]
A practitioner must not give to another practitioner an undertaking compliance with which
requires the co-operation of a third party.

28. [Undertakings]
A practitioner must not, in the course of the practitioner's practice, seek from another practitioner or that practitioner's employee, an undertaking, compliance with which would require the co-operation of a third party who is not a party to the undertaking.

29. Taking over a matter from another practitioner
Where a practitioner's retainer is terminated before the completion of the client's business to which it relates, and the client instructs another practitioner to take over the conduct of the client's business, the following rules shall apply, subject to any orders which may be made by the Supreme Court in respect of the delivery of documents pursuant to Section 728 of the Legal Profession Act 2004.

30. Transfer of a practitioner's practice
When a practitioner intends to transfer to another practitioner the whole or part of the practitioner's practice, including clients' work in progress, and to put the other practitioner in possession of the documents held by the practitioner on behalf of clients, the practitioner must give to each client, fourteen (14) days (or such other period as may be reasonable in the circumstances), before the practitioner delivers possession of the practice to the practitioner acquiring it, notice in writing:

31. Communicating with another practitioner's client
A practitioner who is acting on behalf of a party in any matter must not communicate in connection with that matter directly with any other party for whom, to the practitioner's knowledge, another practitioner is currently acting, unless-

• notice of the practitioner's intention to communicate with the other party, in default of a reply from the other practitioner, has been given to that practitioner, who has failed, after a reasonable time, to reply;

• the communication is made for the sole purpose of informing the other party that the practitioner has been unable to obtain a reply from that party's practitioner, and requests that party to contact the practitioner; and

• the practitioner, thereafter, notifies the other practitioner of the communication.

• Riley

(h) Solicitors and third parties

Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.

Solicitors Rules, rr 32-36

32.Contracting for services
A practitioner who deals with a third party on behalf of a client for the purpose of obtaining some service in respect of the client's business, must inform the third party when the service is requested, that the practitioner will accept personal liability for payment of the fees to be charged for the service or, if the practitioner is not to accept personal liability, the practitioner must inform the third party of the arrangements intended to be made for payment of the fees.

33.Undertakings
A practitioner who, in the course of providing legal services to a client, and for the purposes of the client's business, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time.

34. Communications
A practitioner must not, in any communication with another person on behalf of a client:

• represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue; or

• make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the practitioner's client; or

• threaten the institution of criminal proceedings against the other person in default of the person's satisfying a concurrent civil liability to the practitioner's client; or

• demand the payment of any costs to the practitioner in the absence of any existing liability therefore owed by the person to the practitioner's client.

35. Debt collection or mercantile agencies
A practitioner must not allow the practitioner's business name or stationery to be used by a debt collection, or mercantile, agent in a manner that is likely to mislead the public.

36. Practitioner members of local government councils
A practitioner must not act for a client in any dealing between that client and a local Council,
of which the practitioner is a member, unless the relevant dealing:
36.1 involves a non-contentious matter of a relatively minor nature; or
36.2 is one within a class of dealings which the Council of the Law Society has declared to be exempt from this Rule; or
36.3 is declared by the Law Society Council to be exempt from this Rule upon the Application of the practitioner.

• Riley

(i) Solicitor's liability for acts of partner

s250 Legal Profession Act 2004. That section provides that any provision contained in the Act which imposes an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally (per s7 LPA the definition of principal includes partners). That the provision imposes an obligation on the principals jointly and severally has the effect of rendering other ‘innocent’ partners guilty of another partner’s offence and, where that partner is guilty of professional misconduct, so too are the other ‘innocent’ partners.

Re Mayes and the Legal Practitioners Act (1974) 1 NSWLR 19
where the Court of Appeal found that the appellant had been put on notice that there were happenings which called for him to check the trust account ledgers and, in particular, if he had looked in the account to which the money had wrongly been transferred, he would have seen irregularities there which would have disclosed his partner's defalcations. Importantly, and in contrast to Re Hodgekiss, the Court of Appeal held that “Wilful misconduct can be established by evidence that a person acts with reckless carelessness, not caring what the results of such carelessness may be.”

In this case junior partner reported and was not struck off

Bridges v Law Society of New South Wales (1983) 2 NSWLR,

Was struck off for acts of partner.  Where the onus was reinforced on ‘innocent’ partners to check the conduct of the firm’s trust account records rather than accept the verbal assurances of the other partner that it could be fixed, duty to report.

(j) Duty to report offences/bankruptcy

The difference between whether a person is a fit and proper person to hold a practising certificate and whether they are fit and proper to stay on the roll is a question only of degree. In New South Wales Bar Association v Murphy [2002] NSWCA 138 the difference ‘may not be great in many cases’, but should not be overlooked. The difference is that an order to strike the lawyer off the roll should be made only where, at the time when the decision is made, the decision maker is satisfied of the likelihood that the lawyer will be unfit to practise for the indefinite future.

NSW Bar Association v Cummins (2001) 52 NSWLR 279

No tax returns for years and years – struck off

If the [decision maker] is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under [the relevant statute]. Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.  The legal regulator is entitled to rely on the presumption of continuance to discharge the burden of proof which remains on it, and the lawyer is required to adduce evidence if he or she needs to rebut the presumption.  Once it shown at the time to not be fit and proper then decision maker can rely on that and it is up to the applicant to show how things have changed.

NSW Bar Association v Murphy (2001) 52 NSWLR 279

Failed business venture no dishonesty involved it just failed – not struck off.