A Lawyer

Why impose onerous duties on lawyers?

The relationship between lawyer and client, constituted by way of a retainer, attracts some of the most onerous duties recognised by the law. These reflect a variety of aspects of the relationship in question, including the following:

• lawyers have a (near) monopoly on access to the legal system, and in the ability to charge for legal services;
• a properly functioning legal system is essential to the maintenance of a civilised society;
• the lawyer may be the only person protecting the individual from the tyranny of the state;
• the lawyer is specially trained, and so is more knowledgeable in his or her field of endeavour than most clients;
• clients often place considerable trust in lawyers, including trust in relation not only to significant financial affairs, but in matters of emotion and conscience; and
• lawyers are often in a position of considerable power over their clients' interests.

The foregoing explains why the law has been adroit to ensure that the community can trust the lawyer to loyally and competently perform his or her important societal function.

Types of duties

Of course, lawyers are, as ordinary citizens, subject to the law (both judge made and statutory) to which all citizens are subject, which also permeates the lawyer-client relationship.

Although a lawyer cannot be held responsible to a client for not fulfilling his or her legal duty to the client, lawyers should be cognisant of their professional responsibility to provide a good service to clients. Although failure to fulfil the latter may not generate legal liability, it can have weighty ramifications for the success of the lawyer's practice, clients' satisfaction and ultimately the reputation of the profession as a whole.

Duties of performance

A client ordinarily consults a lawyer because of the latter's qualification and resulting special knowledge and experience in a particular field. In fact, in most areas of the law, only members of the legal profession can provide the relevant service to clients. For this reason, the law expects of lawyers certain standards of performance in their professional dealings with clients.

Historically these duties stemmed from the law of contract, arising directly out of the retainer (contract) between lawyer and client. The main vehicle through which duties of competence were cast on the lawyer in this context was via contractual implication. Hence the terms implied in law into the retainer that the lawyer will use his or her best endeavours to protect the client's interest and carry out by all proper means his or her instructions in the matters to which the retainer relates.

Duties of loyalty

The trust and confidence a client places in his or her lawyer has meant that, from the earliest times, the lawyer-client relationship has been recognised by the law as giving rise to duties of a fiduciary nature. In 1862 Lord Westbury LC remarked, in this respect:

..there is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honourable observance, than the relation between solicitor and client. The principle is that the client is not permitted to make a gain for himself at the expense of his client. The client is entitled to

To this end, fiduciary duties in Australian law are proscriptive (that is, prohibitive), not prescriptive, in nature.

Duties relating to costs

Much of the law pertaining to costs as between lawyer and client has had its genesis in statutory regulation directed at protecting the client from the lawyer abusing his or her position. The general law was far more restrained. It recognised the ability to set aside costs agreements on the ground of unfairness or unreasonableness, and potential scope for the application of fiduciary and undue influence notions over such agreements.