LAWS108 Lecture Notes - Lecture 3: Legal Guardian, Copyright Formalities
31 May 2018
School
Course
Professor
Week 3 – Retaiers, Duty of
Represetatio ad Parties to the
Retaier
Retainers
- The retainer is the contract – an agreement (either orally or in writing or by conduct)
- Must have proof of consideration
- Must be created in circumstances where the parties had the intention to enter into a binding
legal relationship
- Must comply with any statutory formalities
- The client must have capacity for the contract to be created and entered into
- There must be full and free consent of the client to enter into the contract
- Obligation to consider settlement
- Duty to continue to act – must fulfil all duties instructed by the client
- Duty of competence and diligence – must have adequate skills, knowledge, attitudes
- Duty of loyalty – no conflict
- Duty of confidence – no disclosure to anyone else
- Oral -> person alleging the existence has the onus of proof. A lawyer alleging the existence
of a retainer that is not in writing must adduce evidence in the form of words and/or
conduct of the parties sufficiently to satisfy a court that the retainer alleged in fact existed
- Implied -> person alleging the existence has the onus of proof
- Terms of the retainer can be expressed or implied
- If there is no retainer, then a lawyer has no right to claim costs
Duties Under the Retainers
- Confidentiality
- Maitai liet’s legal professioal priilege
- Duty to the court and administration of justice
- Avoidance of conflicts of interest
- Compliance with statutory and regulatory requirements as to costs and;
- Maintain professional relationship and sufficient objectivity to ensure that the client is
afforded proper advice
Uifor Law Australia Solicitors’ Coduct Rules
- Solicitor cannot terminate services without reasonable notice and just reason
- They cannot withdraw last minute
Barrister Conduct Rules
- Barrister accepts from solicitor, not client
- They cannot return a brief of a criminal offence unless circumstances are compelling, and
there is enough time for another legal practitioner to take over the case before the hearing
- The client must have consented after the barrister has informed the client of the
circumstances in which the barrister wishes to return the brief and of the terms of this rule
- If the client has not listened to the barrister they can return a brief, if there is a conflict in
date approved by the solicitor they can also return a brief
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
The retainer is the contract an agreement (either orally or in writing or by conduct) Must be created in circumstances where the parties had the intention to enter into a binding legal relationship. The client must have capacity for the contract to be created and entered into. There must be full and free consent of the client to enter into the contract. Duty to continue to act must fulfil all duties instructed by the client. Duty of competence and diligence must have adequate skills, knowledge, attitudes. Duty of confidence no disclosure to anyone else. Oral -> person alleging the existence has the onus of proof. A lawyer alleging the existence of a retainer that is not in writing must adduce evidence in the form of words and/or conduct of the parties sufficiently to satisfy a court that the retainer alleged in fact existed. Implied -> person alleging the existence has the onus of proof.
