Identify the client and establish the four corners of the retainer that sets out our contractual duties to the client •
Conflict Checking – what fiduciary duties does a lawyer owe a client and do any circumstances arise that would prevent us from fully discharging those duties (duty to tell the client everything we know that may be relevant to their matter, duty not to let our interests conflict with the client’s, duty to act in the client’s best interests, duty to maintain confidentiality – ongoing)
Virginia Shirvington (2006) ‘Ethics and Conflict of Interest and Duties’ – Law Society of NSW A practitioner who acts where they have a conflict of interest ordinarily breaches a fiduciary duty to their client. The fiduciary duties which may be breached include: • The duty of loyalty to the client. • The duty of confidentiality. • The duty to disclose to the client all information within the practitioner’s knowledge that is relevant to the advancement of the client’s best interests. • The duty not to put the practitioner’s, or anyone else’s, interests before those of the client.[1] Confidentiality (ASCR 9): o
Unsolicited information provided on a confidential basis. Definition of former client
o
Compulsion of law – subpoenas and their abuse Could be an attempt to get around a lien, improper as it is a waste of Court time.
o
Where solicitors drafted a will and a beneficiary wants to know the circumstances i.e. whether there was capacity so can they challenge the Will (who does this information belong to? Who do I owe my fiduciary obligations to following the termination of the retainer by death of my client?)
o
Harm exception rule – McClure v Thompson** (US Case) [particularly interesting for lawyers acting in spaces where events are happening there and then – family lawyers, criminal lawyers]
Undertakings (ASCR 6) Nada v Georges River Council [2017] NSWLEC 80 Doesn’t have to use the word “undertaking” to in fact be an undertaking. Just like you don’t have to use the word “contract” to have entered into a contract. If you give a promise to do or not do something you’re giving an undertaking. It’s really as basic as if you give your word to do (or not do) something then you do or don’t do that something. [1]
ibid
Good drafting like terms of “reasonableness”
Inadvertent Disclosures (ASCR 31) o Expense Reductions (High Court case) No contact (ASCR 33) o Hurley Ceasing to Act (ASCR 13) Duty to Respond to the Regulator (ASCR 43)
Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 https://www.caselaw.nsw.gov.au/decision/5cf896b0e4b02a5a800c155f