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Solicitors’ duties to clients

In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship one person (the client) places his or her confidence, good faith, reliance and trust in another (the solicitor), whose advice is sought in some matter.

What are the duties?

A fiduciary relationship creates many legal duties for the person in whom the trust has been placed. Generally this person must act in the best interests of the other. In relation to their clients, solicitors must:

  • act honestly and fairly in a client’s best interests
  • act with due skill and diligence, reasonable promptness and courtesy
  • maintain a client’s confidences
  • avoid conflicts of interest
  • communicate effectively and promptly with clients
  • follow a client’s lawful instructions.

There are many different components to these duties. The major components are explained below.

Please note that solicitors also owe duties to the Court and the profession, which sometimes may be at odds with their duties to clients. Whilst clients usually have priority, solicitors cannot act in way that compromises the integrity of the law. For more information, see Other duties of solicitors.

Disclosure

Your solicitor must tell you in writing how much they will charge you and about other expenses before they start working for you. This is known as disclosure. Once you have agreed to use a particular solicitor, they should also send you regular bills for their services, setting out the work performed and the charges for each service. For more information see What your solicitor must tell you.

Confidentiality

Conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed in limited situations. Solicitors must also follow strict rules in the maintenance of client files.

Conflicts of interest

Your solicitor must not allow their own interests, or the interests of an associate, to conflict with those of a client. A solicitor generally cannot act for you if they have previously provided legal advice to a person you are in dispute with. If you believe that your solicitor may have a conflict you should raise this with them.

Following instructions

Your solicitor cannot make any decisions without your instructions. They must carry out your instructions promptly and efficiently in accordance with the law.

Clear communication

As the client, you should receive regular updates on the progress of your matter, preferably in writing. Your solicitor must provide advice about all your options, including the best course of action, which may be alternative forms of dispute resolution. Your solicitor must also treat you with respect, be polite and assist in your understanding of the law.

Handling your money

Your solicitor may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement. For more information see Trust and controlled money accounts.

How duties are enforced

The fiduciary concept in the practice of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics called the Solicitors' Rules.

All solicitors in New South Wales are obliged to follow these laws and ethical standards.

The Office of the Legal Services Commissioner enforces breaches by solicitors.

 

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