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Lecture

2.2.3 Duties to the Client--Competence

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Duty to the Client—Diligence and Competence Prosecution ↔ Defence: R v Hay and Lindsay [1968] QdR 459, 467-468, Campbell J • Defence—entitled to act with maximum zeal & fight for verdict • Prosecution—has no interest in procuring conviction | only seeking that justice be done, right person convicted Contractual principles Duty extends to providing reasonable and competent degree of skill: Lanphier v Phipos (1838) • No privity of contract between barrister & client if there is an instructing solicitor Tortious principles Can be liable under traditional terms of negligence—duty, breach & damage Standard of Duty Breach if “no reasonably well-informed and competent member of that profession could have made.”: Saif Ali v Sydney Mitchell [1978] 1 WLR 849 per Lord Diplock • Common practice is not necessarily a good indicator: Edward Wong Finance Co Ltd v Johnson Stokes (common practice to give purchase money to solicitor who would complete transaction— solicitor screwed everyone over, left with money  what was the buyer’s solicitor thinking… obviously negligent → liable for damages to financier) • May be a higher standard for solicitors with special skills: Yates Property Corp v Boland Scope of Duty • Duty only applies to skills required in capacity as solicitor—not financial advisor, etc: Citicorp Australia Ltd v O’Brien (1996) (bank lent money to O—O defaulted—bank sued solicitors for letting them do it  solicitors not liable as outside area of expertise) • Duty can extend to third parties, where client & third party within proximity (eg testator & beneficiary): Hill v Van Erp (1997) (solicitor stuffed up witnessing of will by getting husband to witness  liable to beneficiaries of will) • Is a non-delegable duty: Myers v Elman Examples • Lost chance of success in a negligence case—assess quantum awarded by hypothetical judge: Sweeney v Attwood (hit by a truck—commenced proceedings within time but failed to give notice under statutory scheme until after end of limitation period— common ground that a breach of duty  poor prospects of success in negligence claim —damages awarded accordingly, deduction for contributory negligence) • Delay in progressing proceedings: Legal Services Commissioner v Madden (2008) (6 year delay as solicitor not doing anything—delivered statement of loss & damage without authority of client—paid defendant solicitors costs out of trust account without authority—previously acted for H&W preparing financial agreement | W in redrafting will post-separation | had detailed knowledge of separation from W—acted in FamCt for H—solicitor 50km out of town so limited availability of legal services  proceedings stayed | supervising of solicitor & file ordered) • Wrongful advice: Kincard Consequences • Damages etc under law of tort Professional rules • Must act with competence & diligence in the interests of the client: sr1; br16 Andrew Trotter LWB433 Professional Responsibility o Solicitor—should not agree to act unless expects they can  Act with competence & diligence: sr2.1.1  With reasonable promptness: sr2.1.2 o Regardless of any threatened unpopularity or their personal view of the client: sr12.1; br16 • Must assist to understand issues, rights & obligations: sr12.2; br17 • Must inform of o ADR options: sr12.3; br18 o Benefits of pleading guilty or cooperating: sr12.4; br19 • Breach can amount to professional misconduct: s420 LPA [→standards of conduct] Professional misconduct: ss418&419 LPA; Re WC Mosley • Serious delay & lack of communication: LSC v Williams o Depends on level of sophistication of client: Legal Services Commissioner v Williams [2005] (delay & lack of communication  unsatisfactory professional conduct) • Failure to notify client of hearing dates & orders made against them: Legal Services Commissioner v Voll [2008] (substantial & consistent failure to reach or keep reasonable standard of competence & diligence → professional misconduct) • Simple incompetence not sufficient: Pillai v Messiter Undertakings Must honour undertakings within time given or reasonable time: sr22.1 • Must not give undertaking on behalf of third party: sr22.2 • Must not seek undertaking which requires compliance by third party: sr22.3 Penalty for not complying with undertakings → punishable by contempt: UCPR r900(1)(a) Delay & failure to inform • Missing limitation period: Gaffrey v Cranston McEarchen & Co • Delay, not following instructions: In re R & in re A (1927) (not preparing bills of sale for several months—not lodging appeal but said he did) • Delay & lack of communications: LSC v Williams o Depends on sophistication of client: LSC v Madden • Failing to notify of hearing dates & orders against them: LSC v Voll • Failing to comply with statutory scheme: Perham v Connolly Negligent Advice • Enquiries as to quantum inadequate: Valencia v Modarcyzk & Co • Settlement on unfavourable terms: Luadaka v Pooley • No advice on JR remedies: Island Link v Thyree • Impact of absence of guarantees: Walker v Richards • Notice of family maintenance provisions re deceased estate: Holdway v Acuri Other Prohibitions • Sharing of receipts with o Disqualified person: sr33.1 o Criminal sr33.2 • Branch office sr34 • Sharing of premises sr35 • Mortgage financing: sr36 Relationships With Opponent Andrew Trotter LWB433 Professional Responsibility • Must not mislead: sr 18.1; br52 o Must correct: sr18.2; br52 o Need not correct their solicitor: sr18.3; br54 • Must not deal directly with opponent’s client: sr18.4; br55 o UNLESS  Consent: sr18.4.1  To confirm if represented: sr18.4.3  If reasonably believes that • Urgency requires it: 18.4.3(a) and • Not unfair: sr18.4.2 o If unrepresented, deal with the insurer: sr18.5; br56 • Must not talk in court about things not given notice of: sr18.6; br57 o Unless—  Court asks: sr18.6.1  Consent of opposition: sr18.6.2 • Then only within scope of that consent: sr18.8; br59 o Must then promptly tell opponent: sr18.7; br58 • Evidenc
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