In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship one person (the client) places his or her confidence, good faith, reliance and trust in another (the solicitor), whose advice is sought in some matter.
What are the duties?
A fiduciary relationship creates many legal duties for the person in whom the trust has been placed. Generally this person must act in the best interests of the other. However, a solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. In relation to their clients, solicitors must:
- act in a client’s best interests
- be honest and courteous in all dealings in the course of legal practice
- deliver legal services competently, diligently and as promptly as reasonably possible
- avoid any compromise to their integrity and professional independence
- provide clear and timely advice to assist their clients
- follow a client’s lawful, proper and competent instructions
- avoid any conflict of interests
- maintain client’s confidences
- disclose any updates or changes regarding costs to the client
- honour any undertakings given in the course of legal practice
There are many different components to these duties. The major components are explained below. For more information, see: Other duties of solicitors.
Your solicitor must tell you in writing how much they will charge you and about other expenses before they start working for you. This is known as disclosure. Once you have agreed to use a particular solicitor, they should also send you regular bills for their services, setting out the work performed and the charges for each service. For more information see: What your solicitor must tell you.
Conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed in limited situations. Solicitors must also follow strict rules in the maintenance of client files.
Conflicts of interest
Your solicitor must not allow their own interests, or the interests of an associate, to conflict with those of a client. A solicitor generally cannot act for you if they have previously provided legal advice to a person you are in dispute with. They may also not be able to act for more than one party in the same matter. If you believe that your solicitor may have a conflict you should raise this with them.
Your solicitor cannot make any decisions without your instructions. They must carry out your instructions promptly and efficiently in accordance with the law.
As the client, you should receive regular updates on the progress of your matter, preferably in writing. Your solicitor must provide advice about all your options, including the best course of action, which may be alternative forms of dispute resolution. Your solicitor must also treat you with respect, be polite and assist in your understanding of the law.
Handling your money
Your solicitor may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement. For more information see: Trust and controlled money accounts.
How duties are enforced
The fiduciary concept in the practice of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics called the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
All solicitors in NSW are obliged to follow these laws and ethical standards.
The Office of the Legal Services Commissioner enforces breaches by solicitors.