When you employ a lawyer, that person is acting as your agent and is under a duty to act according to your instructions. However, lawyers also have a primary duty to the court and cannot do anything which will mislead the court or waste the court’s time.
Understanding the key aspects of the relationship between you and your lawyer can help your lawyer resolve your legal problem quickly and effectively. It can also save you money.
The basis of the relationship between you and your lawyer is called a retainer. A retainer is an agreement whereby you offer to pay the solicitor and the solicitor agrees to fulfil certain obligations. A retainer need not be in writing, although it is in both your and the lawyer’s interests if the essential terms are in writing. This may be part of a costs agreement.
Under a retainer, the lawyer agrees to use all the relevant information to further your interests. The lawyer has authority to:
- act on your behalf;
- engage other people (eg, accountants, valuers or barristers) to do work on your behalf; and
- accept certain documents.
However, a lawyer always needs to have clear instructions from you before doing any of these things. This may either be set out at the beginning in an agreement or by contacting you as things progress.
You can terminate the retainer at any time, but there are limitations for lawyers. Generally, lawyers are retained to act for a client in a matter until it is completed and the client commits to pay for the services on an ongoing basis or when the matter is completed. If you terminate the retainer before the work is completed, you will be expected to pay for the work done up to that date, perhaps even where the lawyer has agreed to act on a no win/no fee basis. The lawyer has the right to retain your documents or other personal property until the costs are paid. This ‘lawyer’s right’ to retain your property until fees are paid is called a 'lien'.
In ‘no win/no fee’ matters (eg personal injury matters), where costs are usually paid out of settlement or court-awarded money at the conclusion of the case, if you transfer the case to a new solicitor, the former solicitor might release the file to the new solicitor if the new solicitor agrees to pay the former solicitor’s costs as agreed or assessed. In these cases, usually the client has to give the new solicitor an irrevocable authority to pay the former solicitor’s assessed or agreed costs out of any settlement or verdict monies, and to return the file to the former solicitor if the new solicitor’s retainer is terminated.
If a lawyer terminates the retainer before the work is completed they will generally have to return your documents and will not be entitled to payment for work done, unless there is good cause.
Good cause includes:
- if you did not provide funds to pay for expenses which the solicitor has had to pay on your behalf;
- if you request that the lawyer does something illegal or dishonourable;
- if you have demonstrated a serious loss of confidence in the lawyer;
- if you refuse to provide the lawyer with sufficient instructions (see below); or
- if you refuse to accept and follow the lawyer’s advice.
You will still be liable to pay for work done, if the solicitor has terminated the retainer with good cause.
Does the lawyer have to take on the work?
Solicitors are required to take certain matters into consideration before they accept a retainer, including:
- whether they have the time to deal with the matter;
- any potential conflict of interest;
- any potential fraud, illegality or anything else which is improper; and
- whether they have the expertise to deal with the matter.
Solicitors are not obliged to act for clients, and do not have to accept work.
Some lawyers, however, believe there is a moral obligation to take on criminal matters in emergency situations or when no other lawyer is available.
Generally, members of the public do not deal directly with barristers, although it is not prohibited. Solicitors engage barristers on behalf of clients if they believe it is necessary. When solicitors engage barristers, they brief them on the details of the case and provide all the relevant legal information. The barrister then works as an advocate in the court on the client’s behalf or may provide specialised advice. Barristers have to comply with what is known as the ‘cab rank rule’, where they are under an obligation to act for clients.
A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practices if:
- the brief is within the barrister’s capacity, skill and experience;
- the barrister would be available to work at the time required and is not already committed to other work which would prevent them from working in the client’s best interests;
- the fee is acceptable (the barrister is obliged to disclose the proposed fee in the same way as a solicitor); and
- the barrister is not obliged or permitted to refuse the brief. Situations in which a barrister is obliged to refuse a brief include where there is a conflict of interest.
Unlike solicitors, barristers are unable to keep trust accounts and therefore normally do not hold money on behalf of clients.
A settlement is a compromise of a dispute which is made before or during a court hearing. It cannot occur in criminal matters. Your lawyer may advise you to settle a claim rather than proceed with court action if he or she feels that you are likely to achieve a better outcome by doing so than by going to court. When providing this advice the lawyer will take into account the additional cost of proceeding through the court system and the inherent risk in litigation. While some people are sure that having their ‘day in court’ is the only way to achieve justice, this may not be the most practical way to proceed with some matters.
The first appointment with a solicitor is usually called an interview or conference. It is a confidential communication between you and the lawyer, sometimes held in a different room to the solicitor’s office. This is when you explain the situation to the solicitor in your own words.
One of the best ways to make the relationship with your lawyer successful is to inform yourself about the area of the law that you are dealing with before you go to the first interview. If you are informed, it is easier to ask questions and it will save time and money.
The solicitor will listen and usually take notes. They will probably ask a number of questions, including personal information (name, address etc), the details of the story and if any other people were involved. They will often ask for any evidence to verify the details.
The solicitor may provide legal advice. Legal advice is a statement of the law, applying all the relevant factors and principles to the circumstances of a particular case. It includes discussing the possible alternatives and, if appropriate, the best option for action. It is often difficult for a solicitor to give firm advice in one interview. Sometimes lawyers need to check up on the details of the law as it currently stands.
It is best to be prepared before going to see a solicitor as it often saves both you and the lawyer time and money. It is important to get as much information as possible out of the first interview. It can be very useful to write a report of the situation with as much detail as possible before seeing a solicitor and to take all the relevant paperwork to the interview. This is when you can ask questions, particularly about the options which are available and the type of service the solicitor can provide. It is always useful to take notes during any meetings or communication with your lawyer.
People, both lawyers and clients, are often uncomfortable discussing money, particularly at the beginning of a professional relationship. It is important that you understand the costs involved in your matter to avoid problems later on. If the costs are likely to exceed $3000 your lawyer must provide you with a written costs disclosure and provide an estimate of costs and the basis for the charging of those costs. If your costs fall into the $750-$3000 range, the lawyer must disclose those matters on the prescribed short form disclosure document. Make sure you read and understand any documents relating to the retainer and costs before you agree to employ the lawyer.
Communicating with your lawyer
Communication is one of the key aspects to a successful working relationship between you and your lawyer. It is important that your lawyer has all the information which is relevant to your legal issue. The lawyer will probably ask particular questions about some aspects of your situation, but may not need to know other details.
Your lawyer will probably explain to you how the law views your situation and what they would advise you to do about it. Even if you believe there has been an injustice, it is important to understand that the law does not have a remedy for everything. Your lawyer cannot guarantee that you will get what you want.
It is important to ask questions of your lawyer if you don’t understand what they are saying to you. The law is full of jargon and even lawyers with the best intentions use specialised language, sometimes without realising it. Take notes so that you can do some research yourself. Write down clearly what you want your lawyer to do for you (this is called instructing your lawyer) and keep copies of all documents and correspondence.
What are instructions?
Your solicitor will act as your agent and, before taking any action, they must have instructions from you. When they give you legal advice, they will probably be suggesting a particular course of action. It is up to you to decide if you want to pursue this action and to instruct the solicitor to proceed.
Your lawyer will probably confirm what was discussed at the first interview in writing and will keep you informed of progress in the matter. If there are any changes in your circumstances (address, work etc), or if any additional information becomes available, it is essential to tell them. They may need to contact you urgently.
Lawyers can sometimes be difficult to contact. They are often in court or attending meetings with other clients. It can be a good idea to ask how available your lawyer is going to be to take phone calls and how often they will give you a progress report. If your lawyer is particularly busy, they may give you the name of someone else in the office who will be able to assist.
Your lawyer is under a duty to follow your instructions in relation to everything under the retainer, although they also have a primary duty to the court. If your lawyer causes serious delay or knowingly acts without your authority they may be guilty of unsatisfactory professional conduct or professional misconduct. Your lawyer cannot let their own judgement override specific instructions, even if they believe it may be in your best interests. However, if the lawyer believes that you have not taken their legal advice into account when giving instructions they may choose to terminate the retainer on the basis that you no longer have confidence in them. The lawyer must inform you if there are any offers of settlement from the other side in the dispute, even if they think the amount is inadequate. The lawyer cannot reject an offer without consultation with you and should confirm acceptance or rejection in writing.
Who owns the documents?
Disputes about ownership of legal documents are common, particularly if a retainer is terminated before the matter is resolved. The situation regarding who owns the documents is not always clear, however, in general terms:
Documents belong to the lawyer:
- when they have been prepared by the lawyer for their own benefit and not charged to you (eg inter-office memos, diary entries); and
- when they have been sent by you to the lawyer, and are intended to be for the lawyer, eg letters.
Documents belong to you:
- (once you have paid) when they have been prepared by the lawyer acting on your behalf, eg instructions and letters prepared by the solicitor or sent to someone else;
- when they have been prepared by someone else during the retainer and sent to the lawyer, other than at the lawyer’s expense.
Under the Legal Profession Uniform Law (NSW), section 472, the Supreme Court can order a solicitor or barrister to give the client a bill of costs and to hand over the client’s documents. This may be on terms providing for payment or the giving of security.
If a solicitor terminates a retainer, they may be obliged to give the documents to the client or the client’s new solicitor for the time being so that they can go on with the action.
Questions for your lawyer
Before you start
- Is the first appointment free and how long does it last?
- Are you experienced in this area of the law?
- Can you start straight away?
- What is the best way to contact you?
- How will you keep me informed and how often?
- How long will it generally take for you to return my phone calls?
- If you are not available, is there someone else I can talk to?
- Can you explain what the costs cover?
- How likely is it that the costs will go up?
- Will you be charging for every phone call?
- Is there any way I can reduce the costs?
The legal problem
- Will you be handling the case or will someone else be doing some or all of the work?
- What strategy will you use?
- Will you need to contract anyone else?
- Are there any other alternatives?
- What are my chances of success?
- How long is it likely to take from start to finish?
- What will I be required to do?
- Will I have to attend court?
- Is it likely that a barrister will be required, and if so how much will they charge?
Alternative dispute resolution
Alternative dispute resolution (ADR) processes are increasingly being used in a number of areas of the law to help resolve disputes. These are sometimes referred to as primary dispute resolution processes since they may be used before the parties opt to take the matter to court.
Alternative dispute resolution involves the use of an impartial third party to help the people in dispute come to an agreed resolution. ADR can involve a range of mechanisms for resolving disputes, including mediation, conciliation and some forms of arbitration.
Depending on the type of legal problem, your lawyer may suggest alternative dispute resolution as an avenue for resolving your problem without the need to go to court. Alternative dispute resolution processes are used in a wide range of areas of the law, including disputes in relation to neighbourhood issues, family law, commercial and industrial relations. They are also used in tribunals and some courts. ADR is considered to have the advantage of being faster, cheaper and more informal than traditional court-based action. However, certain types of disputes are not suited to mediation, including situations where there is a fear of violence, there is a significant ‘public interest’ at stake, a party is constrained in being able to reach a compromise or lacks the power or ability to negotiate on their own behalf.
In mediation, a neutral third person assists the parties in dispute to reach a resolution between themselves. The mediator does not determine liability and cannot award financial costs or penalties. Mediators do not give advice or make suggestions for resolution. It is increasingly common for there to be two mediators, called co-mediators.
Mediation is often seen to be a suitable dispute resolution process in situations where there is an ongoing relationship between the parties, as a way of avoiding the type of damage which can be caused by the adversarial court system. Mediation is used for disputes between family members or neighbours. Mediation may be ordered by a court for an attempt at a fast and less costly resolution to a dispute. Such mediation is compulsory in family law matters. Mediation is also used by the Office of the Legal Services Commissioner in some disputes between lawyers and clients.
Conciliation and arbitration
In conciliation, a neutral third person assists the parties in dispute to come to a resolution by suggesting the terms of an agreement. It involves a much more active role for the third party than mediation, because they may offer an opinion on the situation.
Conciliation can be useful when one party to a dispute is unwilling to engage in mediation. Some agencies, for example the Anti-Discrimination Board, use conciliation because they have the responsibility to ensure that any agreement which is reached is not itself discriminatory. In some situations, conciliation is compulsory, for example in industrial disputes.
In arbitration, an independent third person makes a decision about a dispute between two parties which they are bound to observe. Arbitration is the most formal of the alternative dispute resolution processes. Arbitration is a non-judicial process in which the arbitrator determines what rights and obligations each party should have. It is different to adjudication, which is a court process concerned with determining existing legal rights and responsibilities. Arbitration is commonly used in the commercial and industrial arenas.
Community Justice Centres
Community Justice Centres (CJCs), established under the Community Justice Centres Act 1983 (NSW), provide free, impartial and confidential mediation facilities across NSW for disputes concerning neighbourhood, family, community and interpersonal conflict.