In the Westminster Legal system (The legal system In Australia and NSW), the lawyer/client relationship is recognised as a trust-based relationship. That is to say, the relationship is one wherein (the client) places her or his trust, reliance, confidence and faith in another (the lawyer), whose advice and/or representation is sought in some matter.
National Criminal Lawyers ensures that the duty to the Court and to the client is always consistent with the rules contained in law and regulations.
Every lawyer is bound by rules contained in the New South Wales Professional Conduct and Practice Rules 2013 (“Solicitors’ Rules”). Failing to adhere to these rules can cause serious sanction on the lawyer personally.
DUTIES OWED THE CLIENT
What are a lawyer’s duties to a client?
The Lawyer-Client relationship creates several legal duties for the person for whom the trust has been placed (the lawyer). Generally, this person must act in the best interests of the other. However, a lawyer’s duty to the court and the administration of justice always trumps the duty to the client to the extent of any inconsistency with any other duty.
In relation to clients, lawyers must:
• disclose any updates or changes regarding costs to the client
• maintain client’s confidences
• avoid any conflict of interests
• follow a client’s lawful, proper and competent instructions
• provide clear and timely advice to assist their clients
• avoid any compromise to their integrity and professional independence
• deliver legal services competently, diligently and as promptly as is reasonably possible
• be honest and courteous in all dealings during legal practice
• act in a client’s best interests
• honour any undertakings given in the ordinary course of legal practice
Main duties to the client
1. Disclosure
The lawyer you engage must tell you in writing how much they will charge you and about other expenses before they start working for you. This is known as disclosure. Once you have agreed to use a particular Lawyer, they should also send you regular bills for their services, setting out the work performed and the charges for each service.
2. Confidentiality
Documentation, correspondence, and Conversations between you and your lawyer are confidential and can only be disclosed in limited situations. Lawyers must follow strict rules in the keeping of client files.
3. Conflicts of interest
The lawyer you engage must not allow their own interests to conflict with those of a client. A lawyer generally cannot act for you if they have previously provided legal advice to a person you are in dispute with. If you believe that your lawyer may have a conflict you should raise this with them.
4. Following instructions
The lawyer you engage cannot make any decisions without your instructions. They must carry out your instructions efficiently and in your best interest in accordance with the law.
5. Clear communication
As the client, you should receive regular updates on the progress of your matter, preferably in writing. The lawyer you engage must provide advice about all your options, including the best course of action. The lawyer you engage must also treat you with respect, be polite and assist in your understanding of the law.
6. Handling your money
The lawyer you engage may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement.
How is the trust-based relationship enforced?
The trust-based concept in the practice of law is enforced in the following pieces of legislation and common law. These laws govern not only the legal profession but also the lawyer/client relationship and the lawyer/court relationship.
- Legal Profession Uniform Law Application Act 2014.
- Legal Profession Uniform Law (NSW) 2014 (LPUL).
- Legal Profession Uniform Law Application Regulation 2015.
- Legal Profession Uniform General Rules 2015.
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules).
- Legal Profession Uniform Legal Practice (Solicitors) Rules 2015.
- Legal Profession Uniform Conduct (Barristers) Rules 2015.
- determinations by the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT).
- Principles established by common law through decisions made in the courts.
- determinations made by the Legal Services Commissioner.
- Statement of Ethics.
DUTY TO THE COURT/ ADMINISTRATION OF JUSTICE
In addition to their duties to clients, lawyers have other obligations under the law. As officers of the Court, lawyers must not only obey the law, they also must ensure the efficient and proper administration of justice.
Legal practice in NSW in this regard is governed by the Legal Profession Uniform Law (Uniform Law). The Uniform Law consists of the above mentioned Acts, Regulations, and Rules.
What are the other obligations of Lawyers under the law?
In all their dealings, a lawyer must uphold the principles by which they are governed. To observe these duties lawyers must:
- be diligent in their observance of undertakings.
- o not mislead the court.
- be frank in their responses and disclosures to the Court.
- be independent (free from personal bias).
- act with competence, honesty, and courtesy towards other solicitors, parties and witnesses.
Some common examples include:
- withdrawing from representing a client when the client deliberately misleads the court.
- not being a witness in a client’s court case.
- not influencing witnesses.
- not providing bail for a client.
What happens when the duties conflict?
Sometimes circumstances prevail where acting in the client’s best interests conflicts with a lawyer’s duties to the Court or the administration of justice. In such cases, the law specifically provides that lawyers give credence to their duties to the Court/administration of justice.
The conflict between the Duty to the Court and to the Client
The conflict between the duty to the court and to the client has been described by Mason CJ as the ‘peculiar feature of counsel’s responsibility’. They often require that a legal practitioner act in a variety of ways to the possible disadvantage of his client…the duty to the court is paramount, even if the client gives instruction to the contrary.
Advocates Immunity and the Duty to the Court</>
The doctrine of advocate’s immunity provides an advocate (whether that be a solicitor or a barrister) with immunity for any claims that may be brought arising out of the advocate’s conduct of litigation.
In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 the High Court re-examined the basis for advocates’ immunity and later affirmed in Attwells v Jackson Lalic Lawyers [2016] HCA 16 that the retaining of the principle is to be preserved.
The tension between practitioners’ duties to the court and to the client is not itself a justification for retaining advocates’ immunity because, as a purely practical matter, an action taken under the duty to the court would not be considered negligent. But the tension between these duties is one example of a wider tension between the interests of society in a general sense and the interests of each of the individuals who make up that society, or in this context, between the administration of justice and the justice of the individual case.
The dual role of legal practitioners, as officers of the court and, at the same time, as service providers, has evolved and will continue to do so in line with broader changes occurring within and between administrative and commercial institutions, and in line with changing social values.
Final remarks
In Rondel v Worsley [1969] 1 AC 191, 227, Lord Reid made the following observations in relation to the Duty owed by a Lawyer to the Court:
“As an officer of the court concerned in the administration of justice [a legal practitioner] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests”
The legal practitioners fundamental rule is owed to the Court and is affirmed in New South Wales Professional Conduct and Practice Rules 2013. Rule 3 states relevantly that:
A Solicitor’s duty to the Court and the administration of justice is paramount and prevails to the extend of inconsistency with any other duty”
It was said that a lawyer therefore carried both a “benefit” and burden”. The benefit is obvious; the opportunity to pursue a career in the law as a member of the legal profession. The burden lies in the lawyer’s obligation to apply the rule of law and in the duty “to assist the court in doing justice according to the law”
It is well-established that, as an officer of the court, a lawyer’s paramount duty is to the court as part of the duty to the proper administration of justice. The oath or the affirmation that lawyers take means they have this additional level of responsibility and that they may not be driven by their client’s wishes alone.
This duty to the Court by a legal practitioner arises because of the position entrusted on as an officer of the court and an integral participant in the administration of justice. The practitioner’s role is not merely to push his or her client’s interests in the adversarial process, rather the practitioner has a duty to ‘assist the court in the doing of justice according to law.’
The duty often requires that the legal practitioner act honestly, with candour and competence.
Importantly, lawyers should not and must not mislead the Court and must be frank in their responses and disclosures. For that reason, in Gianarelli (1988) 165 CLR 543, 578, Brennan J states:
“The purpose of court proceedings is to do justice according to the law. That is the foundation of a civilized society”.
National Criminal Lawyers is committed to achieving the best results for their clients consistent with their ethical duties to the Court and to the Client. For more information please visit www.nationalcriminallawyers.com.au or drop us an email info@nationalcriminallawyers.com.au mm@nationalcriminallawyers.com.au