LLB197 Lecture Notes - Lecture 5: Sui Iuris, Australian Securities And Investments Commission, John Mcgeoch
Week 5 – Lawyer Client Relationship
Chapter 12: The Lawyer-Client Relationship – The Retainer and the Duty of Representation
Breach of duties give rise to actions:
• Client focused e.g. civil actions, professional negligence
• Lawyer focused – disciplinary action
Communication Skills
• Most important opportunity → the interview because the lawyer obtains
information, analyses the facts and the law, offers preliminary advice, outlines
possible options and their consequences and obtains instructions
• Sets up the retainer – contract where the services are provided for a fee
• NSW 2013-14, the annual report of the Office of Legal Services Commissioner (OLSC)
→ ouiatio oplaits ee seod to those of egligee
The retainer
Duty to client only arises when the lawyer-client relationship has been established (retainer)
Retainer → a contract between a law practice and a client for the provision of legal services
by the law practice (NB – Law practice can be sole practitioner, multi-partner firm,
incorporated practice, barrister)
Governs the scope of the lawyer/client contract:
• Upon whose instructions the lawyer is to act
• The scope of authority in carrying out the instructions
• The sope of the laes duties
• Basis of the relationship
• General contract rules apply
• Creates a contractual duty to provide services with care and skill
• Fiduciary relationship: built on trust and integrity, special responsibility to act in the
liets est iteests, eates a potetial liailit o the lawyer in tort
• Issues that have the potential to cause later problems: failure to create a factual
eistee of a etaie, failig to idetif ad aage liets epetatios, dealing
ith liets ho do ot liste
• First approaches a solicitor
• Uniform Conduct Rules (Barristers) – dot peet a liet fo iefig a aiste
directly but the brief may only be in relation to the type of work that barristers are
alloed to pefo ad aistes aet oliged to aept a ief that ist
offered by a solicitor (r 105(a))
When does a retainer come into effect?
• Once lawyer/client relationship established
• Will depend on facts/circumstances, what was said, expectations
• Agency – employee may enter in to on behalf of practice
• Importance of managing client expectations from the start.
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• Can be in writing/oral/inferred from the conduct of the parties
• Both express and implied terms
Written retainer:
Not essetial ut est patie usuall set out i a osts ageeet
Oral Retainer
• Person alleging retainer bears the burden of proof
• the od of the liet is to e pefeed oe the od of the soliito...ad a
lae ho does ot otai a itte etaie has ol hiself to thak fo eig at
variance with his client over it ad ust take the oseuees
- Griffiths v Evams [1953] 1 WLR 1424 at 1428 per Denning LJ
Implied retainer
• Follows basic contract rules of formation
• Relates to existence – terms must then be proved
• Onus of proof rests on person who alleges the existence of a retainer. Regard may
be had to:
- Laes file ad dia otes
- Nature of work conducted
- Who instructed the lawyer?
- Who is liale fo the laes hages?
- Whether a contractual relationship has existed in the past
McGeoch v Hendricks & Ors [2007] NSWSC 311
• the uestio hethe [M] expressly retained [H] as his solicitor depends upon
fidigs of fat suffiiet to ostitute a otat etee the to
• the etet of the fiduia oligatios oed a soliito to his o he liet
depeds upo the sope of the appliale etaie
• a pofessioal egageet a e implied if the relevant relationship is
estalished
• He [H] did ot adise the to seek independent advice. And when asked for
advice...by [M]... freely gave it. ... He thereby assumed a responsibility for that
advice. He knew [M] was relying on him to provide appropriate advice and in doing
so to look afte his iteests
Who is the client?
• Instructions to act for a business client – is the client a sole trader, partnership or
opa? If pateship o opa, hat authoit does the liet hae to hae
to give instructions? What is the position of the other partners/directors?
• Corporate client – is the person giving instructions authorized to do so? Must get
written authority from the corporation.
• Unincorporated association – e.g. football club. What is the structure of the
organisation? Who is authorized to give instructions? Is the lawyer acting for the
individual or the organisation?
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• Acting as in-house counsel – the duty is that of lawyer/client, not
employee/employer. Cannot be bound solely by directions of employer due to duty
to the court, the profession and administration of justice
• Receiving instructions from an insurer – an insured plaintiff/defendant gives control
to the insurer – the insurer is the client
• Instructions to act for a child – diet epesetatie odel: the hild is the liet
and instructs the lawyer. Important to gai the hilds ofidee
A lawyer can be instructed by the parent on behalf of the child because the child
doest hae the apait ot sui juris)
Can arise for an adult client with a disability
• The representation of children under the Family Law Act 1975 (Cth) – the court must
regard the best interests of the child as the paramount consideration. Must advise
the parents of this obligation (see more pg 248)
The Unpopular Client
• E.g. representing a client charged with sexual assault
• Hideous ie
• Advise on matters contrary to personal morals/values/beliefs
• R v Tighe and Maher quote text pg 249
• No obligation to take on any client
• Must decline to take on a matter of not competent to act or if conflict between
solicitor and client interests
• Ma take the ie the ouldt osietiousl o diligetl epeset suh a liet
– moral opposition
• Baiste is oud the a-ak ule – r 17 of Uniform Conduct Rules (Barristers)
(see pg 250)
I.e. unless a barrister conscientiously believes they would be unable to diligently and
competently represent the client, they must accept the brief on the conditions in r
17
Rationale – unless a client has access to legal services, they may be unable to
exercise their legal rights due to lack of representation
Cab rank rule:
- “eats of all et oe
- Can be used to get monopoly on expertise (see pgs 249-251 textbook)
- Barristers must decline a brief in set out Rules 101, 103 and 104 including:
Independence
Competence
May decline for a number of reasons (r 105) including proper fee
unavailable/not adequate time
• Competence:
- Rule 4.1.3
- Refer to another solicitor
- Un v Schroter [2002] NTSC 2 at [58]
- Vulic v Bilinsky (1983) 2 NSWLR 472, at 483
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Document Summary
Chapter 12: the lawyer-client relationship the retainer and the duty of representation. Breach of duties give rise to actions: client focused e. g. civil actions, professional negligence, lawyer focused disciplinary action. (cid:272)o(cid:373)(cid:373)u(cid:374)i(cid:272)atio(cid:374) (cid:272)o(cid:373)plai(cid:374)ts (cid:449)e(cid:396)e se(cid:272)o(cid:374)d to those of (cid:858)(cid:374)eglige(cid:374)(cid:272)e(cid:859) Duty to client only arises when the lawyer-client relationship has been established (retainer) Retainer a contract between a law practice and a client for the provision of legal services by the law practice (nb law practice can be sole practitioner, multi-partner firm, incorporated practice, barrister) When does a retainer come into effect: once lawyer/client relationship established, will depend on facts/circumstances, what was said, expectations, agency employee may enter in to on behalf of practice. Importance of managing client expectations from the start: can be in writing/oral/inferred from the conduct of the parties, both express and implied terms. Not esse(cid:374)tial (cid:271)ut (cid:858)(cid:271)est p(cid:396)a(cid:272)ti(cid:272)e(cid:859) (cid:894)usuall(cid:455) set out i(cid:374) a (cid:272)osts ag(cid:396)ee(cid:373)e(cid:374)t(cid:895) Griffiths v evams [1953] 1 wlr 1424 at 1428 per denning lj.
