Issues:

• What are the essential obligations imposed on a practitioner when a retainer commences? 
• Is there a hierarchy of duties? 
• What are the prescribed duties and what duties are implied or imputed into the retainer? 
• What can the Society do to protect funds where a breach of trust or incapacity is established?

Desired Outcomes:

• An understanding of the express and implied duties bearing on the discharge of the professional relationship. 
• An appreciation that the “fundamental” rules have not lost their importance when committed to written form. 
• An appreciation of the care that is required in practice to balance the competing interests and to maintain the standard required when this may, and often does, conflict with the client’s aims and perceptions.

1. A solicitor's duty to the court

Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings which they give to the Court or their opponents. Riley Solicitors Manual, LexisNexis Butterworths (loose-leaf service)  (Riley)

Solicitors Rules, rr 17-23A

17 - Preparation of affidavits

Witnessing a false affidavit is grounds to be struck off the role.

If the practitioner 
- is aware that a client is withholding information required by an order or rule of a court, with the intention of misleading the court; or
- informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular;

and the client will not make the relevant information available, or allow the practitioner to correct the false evidence; the practitioner must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the court, give notice of the practitioner's withdrawal from the proceedings

A practitioner must not draw an affidavit alleging criminality, fraud, or other serious misconduct unless the practitioner believes on reasonable grounds that factual material already available to the practitioner provides a proper basis for the allegation; the allegation will be material and admissible in the case, as to an issue or as to credit; and the client wishes the allegation to be made after having been advised of the seriousness of the allegation.

18 - Duty not to influence witnesses

A practitioner must not, in relation to any matter or event which is the subject of adversarial proceedings before a Court, confer with or interview the opposing party in the proceedings unless the unrepresented other party has been advised to seek independent legal advice or the solicitors for the other party agree

19 - Practitioner a material witness in client's case

A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court.

20 - Admission of guilt

If a practitioner's client, who is the accused or defendant in criminal proceedings, admits to the practitioner before the commencement of, or during, the proceedings, that the client is guilty of the offence charged, the practitioner must not, whether acting as instructing practitioner or advocate:

- put a defence case which is inconsistent with the client's confession;

- falsely claim or suggest that another person committed the offence; or

- continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client's innocence.

A practitioner may continue to act for a client who elects to plead "not guilty" after admitting guilt to the practitioner, and in that event, the practitioner must ensure that the prosecution is put to proof of its case, and the practitioner may argue that the evidence is insufficient to justify a conviction or that the prosecution has otherwise failed to establish the commission of the offence by the client.

21 - Admission of perjury

If a practitioner's client admits to the practitioner, during or after any proceedings, while judgment is reserved, that the client has given materially false evidence or tendered a false or misleading document in the proceedings, the practitioner must:

- advise the client that the Court should be informed of the false evidence, and request the client's authority to inform the Court and correct the record; and

- if the client refuses to provide that authority, withdraw from the proceedings
immediately, and terminate the retainer.

22 - Bail

A practitioner must not promote, or be a party to, any arrangement whereby the bail provided by a surety is obtained by using the money of the accused person, or by which the surety is given an indemnity by the accused person or a third party acting on behalf of the accused person.

A practitioner must not become the surety for the practitioner's client's bail.

23 - Advocacy Rules

Bar rules apply to solicitors acting as advocates

23A - Solicitor May Dress As Barrister When Acting As Advocate and Barrister Expected To Robe

2. A solicitor's duty to the client

Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client’s best interests. Practitioners should maintain the confidentiality of their clients’ affairs, but give their clients the benefit of all information relevant to their clients’ affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

• Riley

Solicitors Rules, rr 1-12, 38

1 - Acceptance of retainer - Instructions to act or provide a legal service
Must act honestly, fairly, with competence and diligence.  Should accept instructions, and a retainer only when can reasonably expect to serve in that manner with reasonable promptness

2 - Confidentiality
Confidentiality not limited to information which might be protected by legal professional privilege, and is a duty inherent in the fiduciary relationship.  Must not at any time disclose to any person (other than another partner or employee) any information which is confidential to a client acquired during the currency of the retainer, unless
• the client authorises disclosure;
• the practitioner is permitted or compelled by law to disclose; or
• the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony between the practitioner and client

3 - Acting against a former client
Consistently with the duty which a practitioner has to preserve the confidentiality of a client's affairs, a practitioner must not accept a retainer to act for another person in any action or proceedings against, or in opposition to, the interest of a person:

- for whom the practitioner or the firm, of which the practitioner was a partner, has acted previously;

- from whom the practitioner or the practitioner's firm has thereby acquired information confidential to that person and material to the action or proceedings; and

- that person might reasonably conclude that there is a real possibility the information will be used to the person's detriment.

4 - Practitioners employed otherwise than by a practitioner

A practitioner, who is employed by a corporation who is not a practitioner, must not, despite any contrary direction from the practitioner's employer, act as a practitioner in the performance of any legal work or service in breach of any of the provisions of the LPA 2004 or these Rules.

4A. Supervised Legal Practice

5 - Termination of retainer

A practitioner must complete the work or legal service required by the practitioner's retainer, unless -

• the practitioner and the practitioner's client have otherwise agreed;

• the practitioner is discharged from the retainer by the client; or

• the practitioner terminates the retainer for just cause, and on reasonable notice to the client.

6A - Legal Aid Application - Criminal proceedings

6B - Legal Aid: Court of Criminal Appeal proceedings

7 - Litigation lending

8 - Ownership of clients' documents - Termination of retainer

9 - Acting for more than one party

A practitioner who intends to accept instructions from more than one party to any proceedings or transaction must be satisfied, before accepting a retainer to act, that each of the parties is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner:

• may be, thereby, prevented from —

- disclosing to each party all information, relevant to the proceedings or transaction, within the practitioner's knowledge, or,

- giving advice to one party which is contrary to the interests of another; and

• will cease to act for all parties if the practitioner would, otherwise, be obliged to act in a manner contrary to the interests of one or more of them.

If a practitioner, who is acting for more than one party to any proceedings or transaction, determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must thereupon cease to act for all parties.

10 - Avoiding a conflict between a client's and a practitioner's own interest

A practitioner must not, in any dealings with a client -

• allow the interests of the practitioner or an associate of the practitioner to conflict with those of the client;

• exercise any undue influence intended to dispose the client to benefit the practitioner in excess of the practitioner's fair remuneration for the legal services provided to the client;

A practitioner must not accept instructions to act for a person in any proceedings or transaction affecting or related to any legal or equitable right or entitlement or interest in property, or continue to act for a person engaged in such proceedings or transaction when the practitioner is, or becomes, aware that the person's interest in the proceedings or transaction is, or would be, in conflict with the practitioner's own interest or the interest of an associate

11 - Receiving a benefit under a will or other instrument

12 - Practitioner and client - Borrowing transactions

38.Referral fees - Taking unfair advantage of potential clients - Commissions
In the conduct or promotion of a practitioner's practice, the practitioner must not act for a person from whom the solicitor will provide or will receive a fee.