Lawyers have both a duty to their clients and a duty to the court that they have to navigate between to confirm your wishes and needs are met whilst ensuring they are not misleading the court in any way.
The relationship between a lawyer and their client is defined as a ‘fiduciary relationship’, meaning that it is based on trust as the client relies on and puts their confidence in a lawyer who will, in return, aid, advise and protect them as required. The rights of the client are protected by law in many acts, rules and determinations. The lawyer must act in the best interests of their client, namely:
- Act honestly and fairly in a client’s best interests
- Act with due skill and diligence, promptness and courtesy
- Maintain a client’s confidentiality
- Communicate effectively and promptly with their clients
- Follow their client’s instructions
There are also many components of the duties of a lawyer to their clients. These include:
Disclosure – the client must be advised by their lawyer how much the lawyer charges as well as any additional expense the client will be expected to pay, and the lawyer must provide the client with regular bills detailing the work performed and expenses for each task.
Confidentiality – the nature and details of the client’s case, as well as all conversations, correspondence and documentation between the client and the lawyer are confidential and must not be revealed to anyone without the client’s permission or without an order from the court.
Conflicts of interest – the lawyer cannot allow their own interests, or the interests of an associate, to conflict with the interests of a client. If they have provided legal advice to the person in dispute with their client, then they cannot act for them. If the lawyer has a potential conflict of interest at any point in the case they must notify their client promptly, and vice versa, if the client believes that their lawyer has a conflict of interest then they too must notify their lawyer immediately.
Following instructions – lawyers cannot make any significant decision in a matter without the client’s instructions and must carry out their client’s instructions as promptly as possible.
Clear communication – the client is entitled to regular updates on the progress of the matter and advice on all available options and the best course of action from their lawyer, ideally in writing. The lawyer must also treat their client with respect, be polite and assist with any questions in relation to the law.
Handling of your money – the lawyer may ask for some fees to be paid in advance to cover expenses incurred in their work for you. The client’s money is held in trust and cannot be paid to anyone for expenses until work is done and either with client’s permission, or after 7 days notice of a proposed withdrawal.
Alongside their duties to their clients, lawyers are also bound by duties to the court requiring they ensure the efficient and proper administration of justice alongside remaining obedient to the law. Lawyers are obligated to:
- Be diligent in their observance of undertakings
- Not mislead the court
- Be frank in their responses and disclosures to the Court
- Be independent and free from personal bias
- Act with competence, honesty and courtesy towards other lawyers, parties and witnesses
Conflict between duties to the court and client
In situations where there is a conflict between a lawyer’s duty to their client and duty to the court their duty to the court must prevail. The classic scenario where this may arise is where a client instructs a lawyer about what happened in an incident but they then want their lawyer to argue something contrary to this in court. A lawyer’s duty not to mislead the court in this way must trump client instructions.
Whilst it may seem counter-intuitive there are some occasions where it may be in a client’s interests not to provide full instructions about what did or did not happen in relation to criminal charges. This may permit a lawyer to argue whatever technical defence may apply. Even if a client has given instructions that severely restrict the kinds of submissions or legal arguments a defence lawyer can make they would still not be misleading the court if still simply putting a prosecution case to proof. If this scenario does arise, lawyers may often advise a client to nonetheless obtain a new lawyer as the current lawyer may feel too severely restricted in how they can defend their client in court.
Ava Buchen
