Informed Consent and Solicitors' Duties to the Administration of Justice in Australia

Recent revisions to the Australian Solicitors’ Conduct Rules 2021 (‘ASCR’) sought to provide clarity for solicitors and their clients seeking to compromise the duties of loyalty and confidentiality to allow a solicitor to act in what might otherwise be a position of conflict with duties owed to other clients, or with the solicitor’s own interests. This article focuses on the requirement for informed consent, and the ways in which this must balance client autonomy and access to justice, whilst also meeting the solicitor’s obligations as an officer of the court. After examining the revisions to the ASCR and the extent to which they reflect the general law, the article considers case law suggesting that there are circumstances in which it will be inappropriate for a solicitor to act in a position of conflict, despite informed consent. The article explores those circumstances and suggests that they can be explained by the role that solicitors’ obligations of confidentiality and loyalty play in the administration of justice. Finally, the article identifies a number of elements of informed consent that, if they are met, make it more likely that the solicitor’s obligations to the court can be met, and therefore that the solicitor may act.