LLB197 Lecture Notes - Lecture 4: Fiduciary, Bar Council, Contributory Negligence
TOPIC 4: Duty to advise (CH 13)
Where a ‘client instructs a lawyer to perform specialist legal services involving the exercise of professional skill,
this attracts a duty, absent an express exclusion or restriction in the retainer itself, on the lawyer to give any
advice reasonably necessary to protect the client’s interests whether or not expressly requested.’
- Dalleagles Pty Ltd v Australian SecuriAes Commission (1991) 4 WAR 325 at 332 per Anderson J
- lawyers have a monopoly on legal services and clients look to their knowledge, skill and expertise for
assistance.
Duty to advise – Uniform Conduct Rules (Solicitors)
7 Communication of advice
7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues
and to make informed choices about action to be taken during the course of a matter consistent with the terms of
the engagement.
7.2 …must inform client…about the alternatives to fully contested adjudication
8 Client instructions
8.1 A solicitor must follow a client’s lawful, proper and competent instructions
duty to; Inform the client about the law, Advise the client about the legal implications, Ensure the client
understands the advice, Take and act on the client’s instructions
Issues:
-Non-litigious alternatives
-Non-legal implictions
Non-legal Implications
“… a solicitor’s primary obligation is to give effect to the instructions of his or her client. It is not, unless
specifically retained and agreeing to do so, to provide financial advice or psychological counselling. It would be
undesirable for the law to impose burdens on solicitors which go far beyond the duties of their retainer and what
might reasonably be expected within the scope of that retainer.”
-Cousins v Cousins [1991] ANZ Conv R 245 per Kirby P
Failure to advise - negligence –tort
-e.g. Micos v Diamond (1970) 92 WN (NSW) 534 - Conveyancing – found defect in title– did not
advise = neg.
-Also directly linked to the retainer - breach of contract
-Determines to whom owed and extent of duty
-Duty can be limited by retainer
-persistent lack of competence can also result in disciplinary action
Duty to advise
Keep client informed of developments (also relevant to costs if changes estimates) – pg 275.
“legal advice, like any other communication, should be in terms appropriate to the comprehension and
experience of the particular recipient.” - County Personnel (Employment Agency) Ltd v Alan R Pulver & Co
[1987] 1 WLR 916 at 922 per Bingham LJ; i.e. Age, Disability, Business inexperience, Lack of education or
ignorance (NESB)
Implied term that solicitor will follow instructions
-Also expressed in Rule 8.
-Except in ‘the exceptional position where the client’s instruction contravenes a solicitor’s supervening
duty to the court or the solicitor’s ethical responsibilities…’ - Equuscorp Pty Ltd v Wilmoth Field
Warne (a firm) (No 3) [2004] VSC 164 per Byrne J
NB – r. 17.1 – independent forensic judgments – not ‘mere mouthpiece of the client’.
Duty to advise – control
Reasonable prospects of success (pg 277)
– Legal Profession Uniform Law Application Act 2014 (NSW)
– Sch 2, cl 2(1) - not to provide legal services on claim or defence unless there are reasonable prospects of
success (RPoS).
– Preliminary work to determine if RPoS Ok - Sch 2, cl 3
– Practitioner to clarify reasonable prospects of success on claim or defence - Sch 2, cl 4(2)
– Breach capable of UPC or PM – Sch 4(1) and law practice can be subject to personal costs order – Sch 2, cl 5
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Dalleagles pty ltd v australian securiaes commission (1991) 4 war 325 at 332 per anderson j. Lawyers have a monopoly on legal services and clients look to their knowledge, skill and expertise for assistance. Duty to advise uniform conduct rules (solicitors) 7. 2 must inform client about the alternatives to fully contested adjudication. A solicitor"s primary obligation is to give effect to the instructions of his or her client. It is not, unless specifically retained and agreeing to do so, to provide financial advice or psychological counselling. It would be undesirable for the law to impose burdens on solicitors which go far beyond the duties of their retainer and what might reasonably be expected within the scope of that retainer. Cousins v cousins [1991] anz conv r 245 per kirby p. Failure to advise - negligence tort e. g. micos v diamond (1970) 92 wn (nsw) 534 - conveyancing found defect in title did not advise = neg.
