The following is for guidance only. Advice should be sought for the reader’s particular circumstances.
References to the Rules are to the Conduct Rules 2015
Select one of the below for related FAQs to find out more.
The duty of confidentiality continues after the solicitor-client retainer has ended. Upon the death of the client, confidentiality passes to the client’s legal personal representative. Rule 9.2 sets out the exceptions to this rule.
"Confidential information" is not defined in the Rules but may include:
- information regarding a former client which is directly related to a matter with a current client;
- information relevant to a competitor such as product pricing; and
- in certain situations, particular intimate knowledge of a client, their character, business or strategies.
What is the position in relation to confidentiality when: (a) Solicitor A is subpoenaed to give evidence in proceedings where a former client is a party, and (b) Solicitor B (who issued the subpoena) also asks Solicitor A for a statement?
Solicitor A cannot be compelled, in these circumstances alone, to provide a statement to Solicitor B. While Solicitor A is required to comply with the subpoena, the mere request for a statement from Solicitor B cannot be enforced.
Rule 9 requires Solicitor A not to disclose any confidential information acquired during the client’s engagement, unless the circumstances outlined under Rule 9.2 are satisfied. It would therefore be inconsistent with the confidentiality obligations owed by Solicitor A to the former client to disclose to Solicitor B any of the client’s confidential information, unless one of the exceptions had been met (e.g. client consent or court compulsion).
- Conduct Rule 9 – confidentiality and the exception where compelled.
- The different types of compulsion including subpoenas to produce documents, subpoenas to give evidence and notices to produce. A request is not compulsion.
- The best practice is to notify a former client so that they can seek advice. The need to notify a current client if it is material to the retainer. Note that sometimes the solicitor is prohibited from doing so, in which case it may be necessary to cease to act for a current client.
- The requirement to claim privilege unless such a claim is not available or the client instructs to the contrary.
The properly appointed legal personal representative. There may be issues where the LPR is involved in litigation against the deceased/estate. However, it is more likely that the appointment as LPR would not occur, or that the deceased sought advice on changing their nomination of executor once the litigation arose. Note that a client is only entitled to their part of the file (see Wentworth v de Montfort (1988) 15 NSWLR 348).
Where there are contested probate proceedings, it may not be possible to identify the LPR until that is resolved (see Re Estates Brooker-Pain and Soulos  NSWSC 671 at ).
Conflicts of interest
Although there is no rule prohibiting acting for more than one party in a matter, Rule 11 requires a solicitor to avoid conflicts between the duties owed to two or more current clients. In essence, a solicitor or practice must avoid the position where the duties owed to one client are, or may be, in conflict with duties owed to another client, unless the exceptions under Rule 11 apply.
Note that Rule 11 is also triggered by a potential conflict.
In circumstances where a conflict of interests does arise, it cannot be emphasized too strongly that the standards that must be met for a solicitor to continue to act will be very high and difficult to satisfy.
No, see the answer to the above. By operation of Rule 11, the solicitor could consider obtaining the informed consent of both clients before acting for both parties. However, even with the informed consent, a solicitor must exercise independent judgement to determine whether a conflict is likely to arise even where one does not currently exist. Consideration needs to be given to any divergence in the parties’ positions which has arisen or may arise, e.g. has there been a falling out or is it in the interests of one party to delay settlement?
No, as this would generally give rise to the release of confidential information obtained by the solicitor from the testator. The duty of confidentiality owed to a client continues after the solicitor-client retainer has ended. Upon the death of the client, confidentiality passes to the client’s legal personal representative.
Furthermore, Rule 27 may be relevant. This rule applies when it becomes apparent (or is known) that a solicitor will be required to give evidence material to the determination of contested issues before the court. The solicitor can continue to act for the client (not as an advocate), unless doing so would prejudice the administration of justice. The test to be applied in determining whether continuing to act would prejudice the administration of justice is an objective one.
In addition, Rule 12 requires a solicitor to avoid a conflict between their own interests and those of the client. This may be relevant if the challenge involves consideration of the solicitor’s advice. The solicitor should then also consider notifying their insurer.
Each client can access and copy the documents at their own expense. However, the documents can only be released on joint instructions. A solicitor must also consider whether all the documents are joint documents and what is best practice in the circumstances.
When a solicitor retains documents they do so pursuant to the law of bailment. This means that, among other things:
the solicitor must exercise reasonable care in relation to the documents;
the documents must be delivered to the bailor/client as soon as reasonably possible when so requested1, and
if the bailor of the documents/client provides instructions about access to the documents, those instructions must be followed.
Rule 14 of the Australian Solicitors’ Conduct Rules provide that a solicitor may destroy documents after a period of 7 years from completion or termination of the engagement unless the client instructs otherwise or legislation requires a different approach.
1. Pilmer v Duke Group Ltd (In liq)  HCA 31; (2001) 207 CLR 165 at 199 . See also Chan v Zacharia  HCA 36; (1984) 154 CLR 178 at 198 per Deane J; Warman International Ltd v Dwyer  HCA 18; (1995) 182 CLR 544 at 558 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Breen v Williams  HCA 57; (1996) 186 CLR 71 and Howard v Commissioner of Taxation  HCA 21.
A solicitor is not compelled to store a client’s documents; they may wish to deliver them to the client at the conclusion or termination of the solicitor’s engagement. However if a solicitor does store the client’s documents, the solicitor must follow instructions provided by the client concerning the storage and delivery of the documents unless:
- a person with a better title to the documents than the client requires the solicitor to take action which is inconsistent with the client's instructions. An example is where the client is an attorney and the principal requires the document, or
- the solicitor is obliged by law to take a different course of action, such as pursuant to a subpoena or an order made under s472 Legal Profession Uniform Law or
- the solicitor has a legal right which enables the solicitor to take a different course of action, such as a lien2.
2. Clark Boyce v Mouat  1 AC 428 at 435-6 , cited with approval in David Alan Thomson v Golden Destiny Investments Pty Limited  NSWSC 1176, .
Yes, but the solicitor needs to consider the following:
- Is the gift modest?
- Is the gift proportionate to the matter and also to what the solicitor knows of the client’s affairs?
- Is the source of the gift legitimate?
- Could the gift influence the way in which the solicitor carries out the retainer, including their duties as an officer of the court?
- Is the solicitor complying with all aspects of Rule 12, including maintaining their obligation to have no conflict between their own interests and their client's?
- Could the solicitor defend a later claim of undue influence?
- How would the gift appear to a reasonable bystander?
If in doubt, the solicitor should contact the Ethics Department for specific guidance.
Acting for family and close friends is not prohibited by the Conduct Rules. However, a solicitor must consider whether they can comply with the requirement in Rule 4 to maintain their professional independence, and the requirement in Rule 12 to avoid any conflict between the interests of the client, and the interests of the solicitor and their associates (which includes the solicitor’s family). A solicitor may also be a witness and therefore potentially breach Rule 27.
Some matters may be more procedural and therefore less likely to involve a conflict e.g. conveyancing. Other matters will be more emotional and detailed, therefore more likely to involve a conflict, both in relation to procedures undertaken and outcome sought.
In all matters, it is important for the solicitor to consider the likelihood of conflict particularly carefully. The solicitor must also ensure that they are acting within the authority of their practising certificate e.g. corporate certificates, restricted certificates.
Legal issues, especially litigation, are not predictable and can be fraught with emotion. There can often be an appearance of conflict. In many instances, it will be more helpful to refer family and friends to another solicitor, even if they will need to pay fair and reasonable costs.
While there is no legal or ethical prohibition on such a payment, solicitors should consider the following:
- Fees must be fair and reasonable (see s 172 Uniform Law).
- Will owning equity in a client cause a conflict between the solicitor’s own interests and those of the client, in breach of rule 12? For instance, is the solicitor retained to advise on shareholder agreements?
- The definition of associate in rule 12 is very broad and would capture different entities associated with the solicitor actually owning the equity paid.
- The additional obligations under the Corporations Act if the solicitor were to become a director.
A solicitor must consider:
- Their expertise in the language, including legal as against conversational terms.
- The likelihood of becoming a witness in the matter (see Conduct Rule 27).
- The inappropriateness where the document requires the client to confirm the validity of the contents eg affidavits, statutory declarations, claim forms.
- The ready availability of qualified interpreters, including over the telephone or via scanning documents.
It is preferable that neither the solicitor nor their staff translate/interpret for a client. If there is no alternative, then the solicitor should consider the particular risks in litigated matters, for instance preparing/signing documents. There may be less risk in taking instructions. Note the comments in Rogic v Samaan  NSWSC 1464.
Duty to client
improper instructions and unlawful activity
The Property Law Committee has issued a guideline on rebates
Even if the solicitor has not drawn the contract, by acting for the purchaser without properly disclosing the rebate, the solicitor may be assisting the client to mislead the incoming mortgagee and the court.
Duty to disclose
unprofessional conduct of colleagues
Except in relation to trust account irregularities, there is no statutory obligation or any rule unique to solicitors requiring a solicitor to report concerns about the professional conduct of another solicitor. Section 154 of the Legal Profession Uniform Law (NSW) requires a solicitor to report a possible trust account irregularity (in their own or another firm) to the Law Society.
In some circumstances there is an obligation to report the commission of an indictable offence – see the Crimes Act (NSW) s316 (1) and cognate provisions in other states. A solicitor also must report any show cause event in relation to themselves (ss 85 – 92 Legal Profession Uniform Law (NSW)).
The Law Society is committed to eliminating inappropriate behaviour in the profession. It fully supports the Office of the Legal Services Commissioner’s service dedicated to helping solicitors who are experiencing or witnessing such behaviour.
This service allows you to notify the OLSC of the inappropriate behaviour. You can choose whether you want to identify yourself to the OLSC, or be identified to other parties involved. The OLSC staff are specially trained to talk to you about the situation and to help you with the notification. Full details are available here http://www.olsc.nsw.gov.au/Pages/inappropriate-personal-conduct.aspx
The OLSC is encouraging you to notify them of discrimination, sexual harassment or workplace bullying in a law practice. This will enable them to take appropriate action.
As with improper conduct of another solicitor, there is no statutory obligation or rule unique to solicitors to report someone who is practising law without the appropriate practising certificate or other allowed qualification. However, solicitors have obligations as officers of the court to maintain the administration of justice Conduct Rule 3. So, for instance, a solicitor may be obliged to draw the court’s attention to an unqualified practitioner to avoid the court being misled.
Professional rapport, tactics and
communications with colleagues
The prohibition seeks to protect the benefit a client obtains from obtaining legal representation and to ensure that a solicitor’s expertise cannot be used unfairly in dealing with a layperson.
Rule 33 prevents a solicitor from directly dealing with the client of another solicitor without that other solicitor’s consent, except for urgent communications which would not result in unfairness to the other party or to enquire if the party is represented. The prohibition is not limited to contested matters, and includes communications with witnesses when a lawyer knows that the witness is represented.
Also, Rule 22.4 applies a similar requirement in relation to an insured.
The rule does not prevent social interactions which do not relate to the subject matter of the representation, but great care should be taken in any such communication.
Generally, clients may communicate directly with each other without going through their solicitors. There is no specific prohibition on such communication where one party is a solicitor, but doing so may give rise to an argument that the solicitor has (possibly inadvertently) used their skill and expertise as a solicitor to gain an unfair advantage or to exercise undue influence in any such communication. If such communications cannot be avoided it may be desirable to have a third party present. It is generally better to communicate with the other solicitor.
The other party’s wishes do not release a solicitor from their overarching duty to comply with the rule. The solicitor should inform the opposing party that they cannot communicate directly with the party unless their solicitor agrees. If the solicitor wishes to proceed with such communication, they will need to contact the opposing solicitor and request consent under Rule 33.
A solicitor has been approached by a party who has a solicitor acting in a matter but who wishes to obtain advice about whether or not that solicitor’s advice should be followed, that is, to give a second opinion.
Care should be exercised in accepting and discharging such a retainer.
Rule 33 restricts a solicitor’s ability to deal directly with the client of another practitioner. It would generally be accepted or understood that the Rule would apply to practitioners on opposing sides to a transaction or dispute.
However, in circumstances where a client contacts a second practitioner to obtain a second opinion, there is also the potential for the second practitioner to offend this Rule. The general law recognises the need to protect the relationship of trust between a solicitor and a client, and it would be inconsistent with that protection for the second opinion to extend to disparagement of the first solicitor or an attempt to undermine the existing professional relationship.
A client is a party in a Family Law matter and wants their solicitor to assert that the opposing solicitor should cease acting because of a conflict of interests. The first solicitor is aware that the main reason that the client wishes...
A client is a party in a Family Law matter and wants their solicitor to assert that the opposing solicitor should cease acting because of a conflict of interests. The first solicitor is aware that the main reason that the client wishes the other solicitor to have to withdraw is that he is a good friend of the opponent and is apparently charging costs at a reduced rate. The first solicitor’s client wants the opponent to be put to significant expense. Is it appropriate for the first solicitor to assert a conflict?
Yes, provided that the solicitor is satisfied that there is a genuinely arguable conflict of interests and lack of independence. If so, the fact that there might also be a tactical advantage to the client does not prevent the argument being made. However, consideration should be given to the provisions of Rule 21, which require a solicitor to take care to ensure that the court’s coercive powers are invoked only on a basis reasonably justified by the available material and not principally to gain some collateral advantage. Rule 32 also prohibits a solicitor from making an allegation of unsatisfactory professional conduct or professional misconduct against another practitioner without a proper basis.
A client is selling property at auction. The contract for sale of land which the solicitor drew has been duly displayed in the auctioneer’s office. The client has asked the solicitor at the last minute before the auction to include a clause requiring ...
A client is selling property at auction. The contract for sale of land which the solicitor drew has been duly displayed in the auctioneer’s office. The client has asked the solicitor at the last minute before the auction to include a clause requiring the purchaser to pay the land tax adjustment. Should the solicitor attempt to obtain instructions from their client to ensure that the auctioneer draws the amendment to the attention of prospective purchasers?
Yes. It may be misleading, and a misrepresentation, for the amendment not to be notified. A solicitor’s fundamental duty as a solicitor is to the court and the administration of justice (Rule 3) and the obligation to the client is to follow lawful, proper and competent instructions (Rule 8).
In Xu v Council of the Law Society of NSW  NSWCA 430, Handley AJA (with whom Tobias JA agreed) expressed the view that it is possible for a solicitor to enforce a lien over a passport, provided it has been obtained for a legitimate forensic purpose, and as long as it was merely as against the client and not against the Commonwealth (at  and ). His Honour went on to note, however, that a court may decline to enforce such a lien “… if its exercise would deprive an impecunious client of his liberty. In such a case the Court might, for example, order the solicitor to deliver the passport to the Court that would be considering the clients’ bail application subject to his lien.” (at ).
Whilst the above appears to represent the balance of authority, those views are subject to considerable uncertainty. Basten JA in the same case said (at ) that it should not "…be assumed that the solicitor's lien necessarily extends to permit retention of a passport, obtained from a client for a specific purpose. Indeed, although Handley AJA appears to have expressed a somewhat different view to Basten JA in the very same matter, he appeared to at least partially endorse Basten JA’s analysis (see ). Moreover, in Commissioner of Taxation v American Express Wholesale Currency Services Pty Limited  FCAFC 122 at , Dowsett J (who was himself in the minority) doubted the correctness of the decision in Xu, by reference to the High Court case of Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at , and the English case of The Odessa  1 AC 145 at 158-9.
Accordingly, solicitors should be cautious before choosing to assert a lien over any passport, including an Australian passport, and should not do so unless the passport was obtained for a legitimate forensic purpose.
Solicitors should also be aware of s32 of the Australian Passports Act 2005 and s21 of the Foreign Passports (Law Enforcement and Security) Act 2005 regarding offences of possession or control of another person’s travel documents.
- The new solicitor should first discuss the matter with the old solicitor.
- If the tripartite agreement is available, the new solicitor should make no alternative attempts to obtain the file unless the old solicitor refuses to enter into the agreement. The Committee notes that it may not be available where, for instance, the new solicitor is prohibited by law to enter into the agreement, e.g. Legal Aid Commission, or it does not provide reasonable security.
- Disbursements should generally be reimbursed to the old solicitor irrespective of the payment of legal fees.
The Committee notes that this is covered by the tripartite agreement.
- It is not appropriate to subpoena the file of the old solicitor to circumvent a lien.
- A solicitor should not attempt to undermine the valid lien of another solicitor in any circumstance.
- If the old solicitor refuses to enter into a tripartite agreement when it is available, the new solicitor may seek documents from an insurer, prosecutor or the court when that action is in the client’s best interests.
The capacity to instruct underpins all solicitor-client relationships. A solicitor must not act if they are not reasonably satisfied that the client has the mental capacity to give instructions (see Goddard Elliot (a firm) v. Fritsch  VSC 87). The Law Society has issued detailed guidelines on how to manage such situations.
The guidelines can be viewed here.
If a solicitor receives an authority from another solicitor for a former client’s file, but the first solicitor is concerned about the capacity of the client to give that authority, what should the first solicitor consider?
- Conduct Rule 14 and the client’s right to their file
- Conduct Rule 9 and the confidentiality of information about the client’s capacity
- The need for capacity for the particular instructions – here the authority for file transfer
- The limitation of the solicitor’s role to protecting the confidentiality of a former client’s information
- The Law Society guidelines on capacity
- Making applications to NCAT
With rare exceptions, a solicitor owes a fiduciary obligation to the client. The solicitor is under an obligation not to promote the solicitor’s "personal interests by making or pursuing a gain in circumstances in which there is 'a conflict or a real or substantial possibility of a conflict' between personal interests of the solicitor and those to whom the duty is owed, unless the client gives informed consent to the solicitor's actions"1. The requirements for informed consent will depend on the circumstances of each case but the following are usually important ingredients:
21.1 client must have the appropriate knowledge
The client must have "knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of others"2.
21.2 complete information must be provided
There must be conscientious disclosure of all material circumstances, and everything known to the solicitor relating to the proposed action, which might influence the conduct of the client or anybody from whom he might seek advice3.
21.3 the information must be provided to the client
For a fiduciary to avoid liability, it must "make full disclosure to the person to whom the duty is owed"4.
21.4 some persons can’t give consent
Informed consent must be given by the persons adversely affected by the breach of fiduciary duty, but must be given by all those persons and all must be sui juris.5
21.5 there is no need to state the obvious
Disclosure of a conflict is not required where the nature of the solicitor’s interests is "apparent on the face of the transaction", "obvious" or "mutually understood and accepted"6. However, it is recommended that the solicitor err on the side of caution and provide more information than strictly necessary rather than less.
21.6 the onus of establishing informed consent resides with the solicitor
The onus of proving informed consent lies on the person who is seeking to establish that fact,namely the solicitor7.
1. Rule 14.2 provides that this is subject to an effective lien.
2. As to this issue, also see the question: A solicitor has been approached by a party who has a solicitor acting in a matter but who wishes to obtain advice about whether or not that solicitor's advice should be followed, that is, to give a second opinion (under PROFESSIONAL RAPPORT, TACTICS AND COMMUNICATIONS WITH COLLEAGUES).
3. Law Society of NSW v Harvey  2 NSWLR 154, 170F – 171B; O’Reilly v Law Society of NSW NSWLR 204, 208G; GE Dal Pont, Lawyers’ Professional Responsibility, 5ed, 2013, [6.25].
4. Walker v D'Alessandro  VSC 15 at  –  citing Meagher Gummow and Lehane, Equity Doctrines and Remedies, 4th edition, [5-115] p 179.
5. Saffron v Cowley; estate of Saffron  NSWSC 1108.
6. Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 212B. This comment was made in the context of a director’s obligation of disclosure. Although both fiduciaries, a director’s obligation may be different to a solicitor’s obligation. See, for instance, the lesser requirement of full disclosure in Buttonwood Nominees Pty Ltd v Sundowner Minerals NL (1986) 10 ACLR 360, 362. However Woolworths Ltd v Kelly was cited with approval in the solicitor-client conflict decision of David Alan Thomson v Golden Destiny Investments Pty Limited  NSWSC 1176, .
7. See Birtchnell v Equity Trustees, Executors and Agency Co Ltd  HCA 24; (1929) 42 CLR 384, 398 (Isaacs J) cited with approval in David Alan Thomson v Golden Destiny Investments Pty Limited  NSWSC 1176, .
GE Dal Pont, in Lawyers’ Professional Responsibility, 5ed, 2013, explains the rationale and requirements for independent advice:
"..a lawyer in making the...disclosure [required for informed consent] lacks distance from the conflict, which may dictate that even with the best intentions the disclosure may not properly avoid bias. Also, lay clients may place trust in the superior legal knowledge of their lawyer, and may be willing to accept the lawyer’s assurances simply because it is the lawyer who has given them. A prudent lawyer will, therefore, insist that the client receive independent legal advice on the matter if there is any inclination to continue the representation. Such advice serves to reduce the scope of the lawyer’s own influence in a client's decision to continue conflicted representation, and has the benefit of being supplied by a person with no conflicting interest in the matter."1
It has been said that "no hard and fast rule has been laid to establish the requisite content, scope and effect of the independent advice"2. However guidance can be obtained from the High Court's comment that independent advice "must be that of some independent person who is not connected with the donee in business or in any other confidential way and he has a knowledge of all the material facts and he, in fact, advises the donor on all matters which might affect his consideration in determining whether to make a gift."3
1. At [6.30].
2. White v Willis  NSWSC 1160, .
3. Jenyns v Public Curator QLD  HCA 2; (1953) 90 CLR 113 Dixon CJ, McTiernan and Kitto JJ at 131.