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Most people likely hope they will never need the services of a lawyer during their lifetime but in fact, at some stage many will require professional legal advice. Whether it’s guidance on making a will, or making an application in a family law matter, or for expertise on a commercial or real estate contract, for example, the services of a lawyer are both necessary and advisable.

The relationship between a client and a lawyer is a well-established ‘fiduciary’ one, governed by professional standards legislation for lawyers, to ensure legal professionals act in the best interests of their clients. Lawyers, however, as part of their obligations on being admitted to practice, also have a paramount duty to the court and the administration of justice, which prevails in the case of any inconsistency with any other duty. All lawyers are bound by a code of ethics set out in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.

The key aspects of the relationship between a lawyer and their client are discussed in this article, helping a person needing legal advice to better understand how to find legal representation right for them.

A lawyer’s duties in relation to their client

As set out by the Law Society of NSW, a lawyer’s most important duties when they take on a client are:

• to act in the client’s best interests;
• to be honest and courteous in all dealings in the course of legal practice;
• deliver legal services competently, diligently and as promptly as reasonably possible;
• avoid any compromise to their integrity and professional independence;
• provide clear and timely advice to assist their clients;
• follow a client’s lawful, proper and competent instructions;
• avoid any conflict of interests;
• maintain client’s confidences;
• disclose any updates or changes regarding costs to the client, and;
• honour any undertakings given in the course of legal practice.

At the outset of the relationship between lawyer and client a key step is disclosure, whereby the legal professional must provide in writing details of how much they will charge the client, including expenses, before they begin the necessary work. The subsequent agreement between lawyer and client is known as a costs agreement or a retainer, which comprises the client’s assent to paying the lawyer and the lawyer’s agreement to fulfil certain obligations.

Under such an agreement the lawyer agrees to act on your behalf; engage other people (eg, accountants, valuers or barristers) to do work on your behalf; and accept certain documents. It should also provide for the solicitor sending the client regular bills clearly setting out the work completed and itemising the costs of each service. A lawyer may ask for some fees to be paid in advance to cover expenses – this money must be held in trust and cannot be paid out without the client’s permission.

Other important aspects of the lawyer-client relationship

A lawyer must follow stringent procedures to maintain complete confidentiality of conversations, correspondence and documents shared between themselves and their clients, with this material only revealed in limited situations. This is known as Legal Professional Privilege (LPP), protecting the rights of individuals to seek legal advice.

A solicitor must avoid conflicts between their own interests, or those of an associate, with the interests of a client. Where a lawyer has previously provided legal advice to or represented a person a client is now in dispute with, they can generally not continue to represent the client. A lawyer is also not able to act for more than one party in the same matter.

A person’s solicitor must provide clear and regular advice on all the client’s legal options and can only progress the matter after taking instructions directly from the client.

Termination of a retainer, including in ‘No win no fee’ arrangements

Once on a retainer a lawyer is expected to act for a client until the legal matter is resolved. Where a client terminates a retainer before resolution of the case, the client will be required to pay for the work done up to that date. If payment is not forthcoming, the lawyer is entitled to retain the client’s documents or other personal property until the fees are paid, known as a ‘lien’.

In personal injury cases, the popular ‘no win, no fee’ costs arrangement generally sees legal fees paid out of any settlement monies awarded to the client. In this situation, if a client transfers their case to a new solicitor, the former legal representative may only release relevant cases files to the new representative if they agrees to pay the former solicitor’s costs. The client will also need to agree for the new solicitor to pay the former lawyer’s assessed or agreed costs out of any settlement monies.

If a lawyer terminates the retainer and stops working for a client before resolution of the matter, they will generally have to return the client’s documents and will not be entitled to payment unless there is good cause, such as a client not paying for expenses, or where a client failed to provide the lawyer with sufficient instructions, or refused to accept and follow the lawyer’s advice, for example.

Speak with our experienced, trusted team

As long-standing, trusted law practitioners, we are happy to provide you with more information on the nature of the lawyer-client relationship as a means to helping you make a decision about the best legal representation for your case. If you need clarification on costs agreements and retainers, our duties in representing you and how we will work to resolve your particular legal matter, contact our expert team at Felicio Law Firm for more information.

While both solicitors and barristers are professionals with legal qualifications, the difference between the two roles is often not well understood by those who don’t have a law degree. In fact, the roles are quite different, with solicitors generally engaging barristers in order to advocate for their clients in court. We’ll explain more about how these important roles differ in this article.

How the roles of solicitors and barristers differ

For most people who need a legal representative, their first contact with a lawyer will be a solicitor within a law practice. Whether it’s a wills and estate matter, a compensation claim, a family law case, a commercial issue or even a more serious criminal matter, contacting a solicitor will generally be a person’s first step in the legal process.

A solicitor can advise a person of their legal rights and responsibilities, and the steps they need to take to progress their legal matter to an acceptable resolution. A solicitor will do a lot of the ‘leg work’ involved in making a legal claim – collecting evidence, drafting correspondence, contacting insurance companies, managing files and preparing applications to courts and other bodies in relation to the matter.

Another thing a solicitor will do is contact a barrister either to represent their client as an advocate in court, or to provide specialist advice in the client’s particular matter.

In contrast to solicitors, barristers do not generally deal directly with clients and their day-to-day legal issues. A barrister is usually a specialist in arguing on behalf of the client before a judge or judges, and/or is a specialist in a particular area of the law, such as contracts, defamation, or criminal defence, for example.

In their work barristers are obliged to comply with what is known as the ‘cab rank rule’, which means they must generally accept any brief brought to them by a solicitor that is within their area of expertise, regardless of their own personal opinion of the matter.

A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises if:

• the brief is within the barrister’s capacity, skill and experience;
• the barrister would be available to work at the time required and is not already committed to other work which would prevent them from working in the client’s best interests;
• the fee is acceptable (the barrister is obliged to disclose the proposed fee in the same way as a solicitor); and
• the barrister is not obliged or permitted to refuse the brief. Situations in which a barrister is obliged to refuse a brief include where there is a conflict of interest.

An easy way to spot a barrister, as opposed to a solicitor, is the formal wig and gown they wear in (and also, often, to and from) court.

Briefing a barrister

The decision by a solicitor to engage a barrister on behalf of a client will often be confined to large, weighty legal matters such as a criminal trial or a major commercial dispute. Once engaged, a barrister takes instruction from the solicitor, who briefs the barrister on the intricacies of the case and provides all the relevant evidence, witnesses and other legal information. The barrister then works as an advocate in the court on the client’s behalf as well as provides specialist advice.

Deciding on whether a barrister is needed

A person who needs legal representation will be advised by a solicitor whether they also need a barrister to achieve the outcome they desire. It should be noted that the roles of a solicitor and a barrister often overlap, and legal professionals dubbed ‘solicitor advocates’ often perform a role very similar to a barrister in lower courts for matters such as drink driving, AVOs and smaller drug matters. But in general, barristers are engaged because of their experience and talent in conducting cases in court when a trial is necessary, while the solicitor manages the large administrative workload inherent in any legal matter.

If you’re unsure about the distinction between a solicitor or a barrister, and whether you need one or the other for your legal matters, contact our highly experienced team at Felicio Law Firm for more information as soon as possible.

When you open your browser to search for the details of a local service, be it a restaurant, a dentist, a tradesperson or a shop, chances are you’ll use Google.

In a world with nearly 4.5 billion internet users, it’s estimated nearly four billion of them regularly use Google as their default search engine. ‘The power of Google’ has become a phrase revealing how influential the search engine started in 1998 by Larry Page and Sergey Brin has become.

That power has become so great it can make or break a business. Specifically, the capacity for users to post ‘reviews’ on the Google pages of businesses has become an increasingly contentious aspect of the search engine, with a growing list of legal cases brought by businesses who receive negative reviews.

These reviews are usually posted anonymously and can have a terrible and immediate effect on a business’ reputation and revenue, such is the reach of Google.

If your business receives a bad review like this, what can you do? Read on…

What action can you take?

The most common legal action taken by businesses adversely affected by a negative Google review lies in defamation. Where the bad review has, in the eyes of the business, damaged its reputation among the wider public and exposed it to hatred, contempt or ridicule, the publication of the review may be characterised as defamatory. Actions for defamation because of material published online is a growing phenomenon.

Not everyone is able to make a claim for defamation. If you are a company, you can only bring an action for defamation if you are a not-for-profit company or one with less than 10 employees. A director or officer of a company may also be able to take action for defamation if they are identified with sufficient certainty in the publication which allegedly carries the defamatory imputations.

A review can still be defamatory even where it does not specifically name a person or business. If the person or business is identifiable in the description in the review – ‘the burger place on Hayes Street’, for example – then the action can be maintained. Additionally, reference to a class of people such as ‘Everyone working at the takeaway shop on Hayes St…’ may also be defamatory.

Some examples…

Recent examples from the Australian courts are illustrative of the action a person or business can take if they receive a bad Google review.

Early in 2020 Adelaide lawyer Gordon Cheng was awarded $750,000 in a defamation payout after taking action against a woman, Isabel Lok, who posted a negative review about his firm on Google. Cheng estimated his firm had lost 80% of its clients after the bad review and his accountant said the dollar value damage to his practice was $296,146.

It emerged in court that Lok, who gave Cheng’s firm a one-star review accompanied by a negative description, had never been a client of Cheng’s and that she changed the name on the review a number of times. She even posted two more negative reviews after Google removed the original review.

Shortly after Melbourne dentist Matthew Kabbabe took Google to the Federal Court in order to force the company to identify a person who anonymously posted a bad review about his practice on his Google business page. Google had refused to either take down the review or reveal the identify of the poster, ‘CBsm 23’. Kabbabe wished to know their identity so he could potentially launch an action for defamation against the person.

The Federal Court justice made an order compelling Google to turn over any identifying information of  the reviewer, including names, phone numbers, IP addresses, location metadata, and any other information about the person’s Google accounts.

After the judgement, Kabbabe’s lawyer suggested a class action of small business owners against Google might be forthcoming to deal with the issue of potentially defamatory reviews which Google either does not monitor or does not remove once brought to its attention.

Is suing Google an option?

International social media platforms such as Google and Facebook have strenuously argued for a number of years now that they are not ‘publishers’ but merely platforms hosting other people’s content.

But a number of court cases have found this defence is not sustainable. Melbourne lawyer George Defteros won $40,000 in damages from Google in an April 2020 case after he successfully argued that Google was a publisher and had defamed him because it was responsible for the fact Google searches on his name linked it to that of Melbourne gangland figures. “The Google search engine … is not a passive tool,” wrote Justice Richards in her judgement.

Difficulties arise if the defamatory material has an international dimension given a review can be authored from anywhere in the world and hosted on a platform based in the USA or elsewhere. In this case the fact the review can be accessed and read in Australia may determine whether an Australian court has jurisdiction to find its imputations defamatory of an Australian person or company.

Changes to Australia’s defamation laws

The changing publishing landscape caused by the likes of Google and Facebook, among other reasons, has highlighted the need for Australia’s defamation laws to be updated.

This realisation led to the Model Defamation Law Working Party as part of the Australian Council of Attorneys-General, which took submissions from media companies, peak legal bodies, academics, digital platforms and the public.

The first stage of this process led to Model Defamation Amendment Provisions which NSW became the first state to enact into law when the Defamation Amendment Bill was passed in August 2020 to amend the Defamation Act 2005 and the Limitation Act 1969.

Among other changes, the amendments require an aggrieved person to issue a ‘Concerns Notice’ to a publisher before they can commence defamation proceedings against them. Once this notice is issued, the publisher now also has an extended period within which to make amends (previously capped at 28 days) if further particulars for the notice have been requested.

The changes also introduced a ‘serious harm’ provision, meaning a plaintiff must prove that the defamatory publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation. Where the plaintiff is an excluded corporation, it must also show that the publication has caused, or is likely to cause, serious financial loss.

The reforms to Australia’s defamation laws have not concluded. A second stage is due in 2021 which is expected to provide more detail on the liability of digital platform providers such as Google for the material it publishes, including third-party comments on the platform.

Speak with Felicio

If you have been the subject of a negative comment or review of your business or yourself, whether anonymous or otherwise, give us a call today to discuss your options.

At Felicio Law Firm, it’s our job to be across the latest developments in the law so that we can provide timely and relevant advice on what you can do if you feel your reputation, and the revenue of your business, has been harmed by a review on a Google business page.

Contact our friendly Erina lawyers team today on (02) 4365 4249.

Whether it’s making a will, signing a contract, a lease or a hire purchase document, or filling in employment documents, in this digital age a lot of essential legal paperwork is available as an online template.

It’s understandable why many formerly paper-based legal forms have moved to an online format. As much of the population gains internet access, legal documents available as an online template are easily accessible, time and money-saving, trackable and capable of being encrypted for additional security and privacy.

There has been significant growth in the number of websites and services offering legal forms, documents and templates for a flat or monthly fee. In return for answering some questions and providing other information – such as the names of the parties to a contract – the site creates a legally valid document for you.

But online legal forms also have some drawbacks which may impact on their validity if a legal issue or dispute arises. These include the possibility of outdated or incorrect forms being left online, the inability to customise the form for the user’s purposes, and security and privacy concerns.

This article outlines the various advantages and disadvantages in using an online template when making a legally enforceable document, but if in doubt you should consult experienced solicitors such as the team at Felicio Law Firm who can ensure that filling out an online template is done in a way that prevents the likelihood of it later being disputed, thereby protecting your essential interests.

The advantages of online templates…

The ease and speed of filling out a legal document at your laptop or home computer is obvious. It saves time and, in most cases, avoids the need of paying for professional advice. The portability of such documents means you can access them from multiple devices in any place.

Standard legal documents such as tenancy agreements, basic contracts, product warranties and hire purchase agreements are these days all made readily available as online templates.

For small businesses or sole traders, providing such forms regarding basic terms and conditions is a cheaper, simpler way to create official legal documents with clients and suppliers.

In some cases, online templates can also be customisable so that you can create a more bespoke legal document, such as in the case of a do-it-yourself will.

Encryption technology such as digital signatures ostensibly also provide the necessary security and privacy in a world where identity theft and cyber-crime are real and present threats.

…and the disadvantages

Many of the recognised benefits of online legal document templates also have an unfortunate downside.

Businesses and organisations who offer an online template for key legal documents may grow and evolve so that the digital form is no longer suitable or relevant for the purpose for which it was designed. In many situations, forms are uploaded and then forgotten about, so that their essential terms and conditions become out-of-date or invalid, despite users continuing to use the form.

Commonly, it’s the rigidity and inflexibility of an online template that becomes the problem. Legal documents often need to be made ‘bespoke’ – personalised to reflect the needs and conditions of both path parties to a contract. This is not always possible when using an online template.

Documents setting out contractual terms and conditions, shareholders’ agreements, employment agreements and data protection policies are often lengthy documents not suited to the format of an online template and also requiring sections that need to be customised to pre-empt and avoid the possibility of later disputes.

Subscription-type sites offering legal templates may also – usually in the small print – disclaim the idea that they are providing legally enforceable documents. This may mean the form you’re using may later be shown to be invalid or unenforceable. People also often accept overly restrictive or incorrect terms because they did not read disclaimers accompanying online forms, or could not find them via the site’s navigation.

Finally, the fear that the site hosting the online template is not secure is real. In many cases both the organisation providing the online form, and the user of the form, are not as technologically savvy as people acting nefariously to steal personal and other details from online transactions. Even sites that profess to be entirely secure, may not be.

Why legal advice is a smart option

While online templates are often a good option for simple, standard and straightforward legal forms, such as lease documents, you should still seek legal advice when it comes to more complex contractual forms.

Relying on a form filled out via an online template can be problematic if there’s a later dispute about whether the terms have been breached. In the worst-case scenario, you could lose money or be forced to pay damages if the document is not enforceable.

Experienced Erina solicitors such as Felicio Law Firm take the time to understand you and the needs of your business so that we help you create personalised legal documents to meet your requirements both now and into the future. By taking on expert legal advice, you can also avoid accepting unsuitable terms when using online legal forms. There is no substitute for a properly drafted, enforceable legal document.

If this article raises any questions or concerns, contact Felicio Law Firm today on (02) 4365 4249.

Felicio Law Firm is a Member of The Law Society of New South Wales.

What does this mean for our clients?  

The Law Society is responsible for assisting all solicitors in the state deliver services that are of the highest professional and ethical standards. Read more here on their site regarding ethics and costs.