M1 - Learner Manual

8.1. Professional and ethical standards in legal representation

Lawyers and legal services have obligations to practice law according to certain standards with respect to their clients. Standards vary across states and territories of Australia, however there are a number of notable similarities. 

The major standards and points of legal professional responsibility to clients are:

1. Competence and promptness
2. Duty to account
3. Fiduciary duties
4. Confidentiality
5. Conflicts of interests
6. Duty to the Court

Competence and promptness

Competence: The general standard of care for those practising law is to exercise the care, skill or diligence which would be expected of a reasonably competent legal practitioner under similar circumstances.

Promptness: Unreasonable delay can amount to professional misconduct. The reason it can lead to misconduct is because it causes unnecessary expenses for the other side, which is unfair and against the public’s interest.

Duty to account

A major source of complaints against lawyers by clients is a failure of communication. In many circumstances this involves lawyers not being courteous and failing to communicate or follow instructions. 

A lack of communication can sometimes be a breach of a lawyer’s professional duties. In R v Szabo [2000][1], the client discovered that his defence counsel had been in a relationship with the Crown Prosecutor. This information was not given to the client and the Court of Appeal ordered a new trial.

Fiduciary duties

The relationship between a client and a solicitor is said to be a fiduciary relationship. A fiduciary is an individual in whom another (the client) has placed their trust and confidence to manage and protect property or money. The fiduciary has an obligation to act for the client’s benefit.

Lawyers may breach their fiduciary duty to clients, which can result in professional negligence or professional misconduct.

Confidentiality

In Spincode Pty Ltd v Look Software Pty Ltd [2001][2], it was held that “the relationship between lawyer and client is one of confidence that obliges a solicitor not to disclose information obtained during the course of the relationship without the express or implied approval and consent of the client”.

In order to uphold and maintain the trust of your client it is vital that all communication between the solicitor and the client remains within that relationship.

A breach of this confidence is not only unethical and contrary to the nature of the profession but more importantly will affect the solicitor’s relationship with current and future clients.

Conflicts of interest

Legal practitioners must make all attempts to avoid the situation where their duty to a client conflicts with their duty to another client (e.g. avoiding misuse of information obtained in confidence during dealing with a previous client), their duty to the court (ultimately prevails over duty to client) or a personal interest the practitioner may have in the proceedings (e.g. drawing up a will in which the practitioner is a beneficiary). A couple of common law examples of the latter kind of conflict of interest are where a solicitor guarantees a loan  made to their client (Maguire and Tansey v Makaronis (1997)[3]) and where the solicitor has business dealings with their client (Law Society of NSW v Harvey [1976][4])

Before beginning to act for a new client, it is important that a legal practitioner determine the following questions:

Have all interested parties to the proceedings been identified?

Have all members of the representing law firm registered any personal interest held outside the office (e.g. any relation to the client, any financial interest in the client’s affairs, any prior knowledge of the client that may adversely affect your firm’s representation?) 

Is the firm, by whatever means, in possession of confidential information regarding any of the interested parties to the proceedings?

Duty to the Court

The various codes of legal ethics and professional responsibilities across Australia make it clear that a legal practitioner’s duty to the court and to the administration of justice is paramount. What this means in practice, is that a legal practitioner’s duty to the court must prevail to the extent of any inconsistency with any other duty the practitioner may owe[5].

In Incorporated Law Institute of NSW v R D Meagher, Isaacs J made the following statement which is important in reflecting on the role of the lawyer in society:

“…There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential”[6]