Duty to Accept Work & Duties of Obedience to Clients and to Law

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This article is a topic within the subject Law, Lawyers and Society.

Contents

Required Reading

Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012), pp. .

R v McLoughlin and Isaacs [1985]

Facts:
  • Defendants were convicted of rape and appealed
Issues:
  • Isaacs had an alibi but a new barrister for the defence refused to advance it. But this was contrary to Isaacs’ wishes.
  • It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance with his client’s wishes … but …
  • The principle (of fair trial) requires that the accused be afforded every proper opportunity to put his defence to the jury. The present applicant has been deprived of that …

NSW Solicitors Rules

  • [1] Rule 1:
    • Act honestly, fairly, competently, diligently. Follow your client’s wishes provided that you can reasonably expect to serve them
  • [2] Rule 5:
    • Retain your services all the way through, unless the client terminates or you terminate for just cause
    • You cannot terminate a retainer for a criminal defendant on a cost basis unless you give a minimum 7 day ultimatum
    • Nevertheless you may terminate an agreement with a legally assisted client
  • [3] Rule 8:
    • You must keep your client’s (and his/her case’s) details confidential and secure
    • Upon completion or termination of the retainer, you must give your client his/her documents, unless you complete it, your client terminates it, or you terminate it on just cause and reasonable notice and claim a lien over the documents for costs.
    • However, you must still deliver documents to clients and any practitioners the matter is passed upon to if they are essential to the client.
  • [4] Rule 45:
    • When a solicitor advises a signatory to documents who is a borrower or a mortgagor, etc. the solicitor must not act for the lender, advise on conflict of interest, or when there is potential for conflict of interest.
    • The solicitor must not act for anyone except the identified signatory
    • The solicitor must advise the borrower/signatory on their liabilities
    • The solicitor must obtain acknowledgement and consent

NSW Barrister’s Rules

  • [5] Rule 21/22:
    • Barristers must accept briefs from solicitors if the barrister is available and able, is offered an acceptable fee and is not obliged/permitted to refuse. A barrister must not jack his prices up to turn off the solicitor.
  • [6] Rule 37: A barrister must represent his/her clients’ best interests to the best of his/her ability
  • [7] Rule 39: A barrister must seek assist the client to understand the issues in the case and the client’s possible rights and obligations
  • [8] Rule 95: Conditions where barristers must refuse to accept briefs unless there are reasonable grounds of allegations of conflict of interest
  • [9] Rule 97: Barristers must not accept briefs where it may impede their ability to appear on other briefs or where the client’s interests may be affected.
  • [10] Rule 99: Conditions where barristers may refuse briefs at their discretion
  • [11] Rule 101: Barristers cannot return briefs except where the clients consent or the circumstances are exceptional and someone else can take the brief, or on specific occasion where there is consent by the solicitor or client and someone else can take over.

End

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References

Textbook refers to Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012).

  1. Textbook, [5]
  2. Textbook, [7]
  3. Textbook, [10]
  4. Textbook, [40]
  5. Textbook, p. 54
  6. Textbook, p. 56
  7. Textbook, p. 59
  8. Textbook, p. 66
  9. Textbook, p. 67
  10. Textbook, p. 68
  11. Textbook, p. 69
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