Lawyer-client relationship: retainer, duty of representation and costs disclosure Flashcards
1
Q
List concseuqnces for a lawyer who breaches thier duties 3
A
- Civil actions brought by the client like negligence or breach of contract
- Statutory consequences – disciplinary action under relevant professional responsibility laws
- Criminal consequences – for breaches of relevant crime legislation such as perjury or concealing serious indictable offences
2
Q
List professional and ethical obligations of a lawyer 6
A
- Confidentiality of information received from clients
- Client’s legal professional privilege
- Duty to the court and administration of justice not to advise or allow a client to act in a manner that would be in breach of the law or mislead the court
- Avoidance of conflicts of interest
- Compliance with statutory and regulatory requirements as to costs
- Maintaining a professional relationship and sufficient objectivity to ensure the client is afford proper, unbiased, independent advice
3
Q
Differenes between a solicitor and laywer in terms of taking on a case
A
Solicitor - has no obligation to any particular case, they can refuse it based even on amoral opposition such as environmental principles or tax avoidance or if they find the charged against someone repugnant such as being accused of child sexual assault
Barrister - bound by the cab-rank rule accordding to rule 17 of the Uniform Profession Uniform Conduct (Barristers) Rules 2015 meaning they don’t really have a choice in the matter, they have to accept the case
4
Q
list instances where a practitioner can terminate a client’s retainer 6
A
- there must be just cause which can include:
o Client’s failure to pay costs
o Client’s insistence the practitioner is acting improperly or in breach of the law
o The work seriously impacting the health of the practitioner’s health
o Death or insanity of the client or practitioner - situations such as excessive workload don’t constitue a just cause
- they must give the client reasonable notie
5
Q
Explain what the solicitor’s lien is 3
A
- If the retainer has been terminated but a client’s costs are still outstanding the practitioner can refuse to give the client any documents
- Such cases most often arise when a client changes from one lawyer to another during the course of their case
- rule 15 of Legal Profession Uniform Conduct (Solicitors) Rules 2015 outlines that if a lien has been claimed for outstanding costs but the documents are essential, the first solicitor must hand them over to the second if they receive reasonable secuirty for unpaid costs –> purpose to strike a balance between ensuring the client suffers no unfair consequences
6
Q
Outline the fairness of costs 5
A
- The Legal Profession Uniform Law NSW 2014 section 172 provides that costs must be fair and reasonable and proportionate to the work required
- Fair costs should consider:
o Level of skill, experience and seniority of the lawyer involved
o Level of complexity of the issues involved in the matter
o Labour and responsibility
o Circumstances of urgency
7
Q
List some important rules around costs disclosure 3
A
- client has the right to a costs agreement and the laywer must inform them of this right but it is not mandatory to have a costs agreement
- a retainer is mandatory, it doesn’t have to be in writing but it should
- a costs disclosure is mandatory and it is also mandatory for it to be in writing
8
Q
what is an uplift fee 3
A
- Premium or loading on costs that a law practice may seek to charge in consideration for taking on an especially difficult matter
- If the client and lawyer have entered into a costs agreement, cost disclosure includes an uplift fee estimate
- According to the uniform law an uplift fee is an ‘additional legal costs (excluding disbursements) payable under a costs agreement on the successful outcome of the matter to which the agreement relates’
9
Q
list the consequences for a lawyer in the failure to disclose costs 4
A
- Client would no longer be required to pay the bill or it may reduce the amount the lawyer can recover from the client
- The costs agreement could be set aside
- Unsatisfactory professional conduct or professional misconduct
- Non-compliance of disclosure requirements under the uniform law makes any costs agreement void and prevents the law practice from commencing or maintaining any proceedings to recover costs until an assessment of a dispute is made again such conduct could be considered unsatisfactory professional conduct or professional misconduct
10
Q
What is a retainer
A
- Contract between the lawyer and client whereby the practitioner provides legal services to the client for a fee
11
Q
What are the terms of a retainer and when is it formed 5
A
- formed at the initiating interview
- laywer must clearly establish a shared understanding of the clients needs and expectations
- it must identify the client and the scope of the retainer
- remember it is mandatory but it doesn’t have to be in writing
- this establishes the lawyer-client relationship and the responsibilites of a lawyer
12
Q
what is a fiduciary relationship 5
A
- relationship between lawyer and client built on trust and intergrity
- carries a responsibility on behalf of the laywer to act in the best interest’s of the client and put their interests above their own
- its not written down, it rises out of the contract
- Not every breach of the retainer is necessarily a breach of the fiduciary duty and vice versa
- dictated by the retainer, if the retainer is terminated so is the relationship
13
Q
List some situations where it may be unlcear to the lawyer who their duty to client is owed 4
A
- child – problems arise when the parent’s concern or interference inhibits the lawyer’s ability to obtain clear instructions from the child client
- similar issues arise for an adult with a disability that impinges their ability to perform the responsibilities of litigation where they require the appointment of a tutor, however the lawyer’s responsibility is still to the person with the disability not the tutor even though it is the tutor that is giving instructions
- Multiple parties, especially in families – does the lawyer have an obligation to each of the members even if an explicit retainer isn’t made with all of them
- In-house counsel – they owe the same duty to the client/employer as would a private practice, they cannot be solely bound by the directions of the employer
14
Q
who is generally considered to be the client of the barrister
A
- the solicitor, this is the one that brings the case to the barrister
15
Q
what is the cab-rank principle
A
- rule 17 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 establishes that if the brief is:
f the brief is within their capacity, skill and experience
o Would be available to work when the brief would require them
o Fee offered is acceptable
they have no choice but to take on the case and represent the client
