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.
