Ethics

A. A retainer letter must be sent to the client as soon as possible on most matters. The Legal Profession Act 2004 (pdf) sets out very specific requirements about what information must be included. It is not difficult.

Despite this, practitioners sometimes overlook their obligations to send costs information to clients. It may be genuine oversight caused by the rush of urgent instructions, but if something goes wrong later, it can have very serious repercussions:

• You are likely to have an unhappy client. A client who knows and understands what is happening is far more likely to be happy with your service - simple, effective communication.
• You may lose financially:
• Your bill may be reduced.
• The Taxing Master can reduce costs when he is determining a dispute.

• The failure itself may constitute unsatisfactory conduct or professional misconduct, leading to a referral for disciplinary sanctions.

Retainer letters are not limited to the required information. Many practitioners find it a useful place to clarify the scope of the retainer, details of any specific initial instructions, and steps which the practitioner is authorised to take on the client’s behalf.

For the standard clauses, practitioners are strongly urged to introduce a ‘standard form’ or ‘template’ retainer letter which can be adapted for each case. This is a simple risk management measure.

A. In some circumstances, costs information is not compulsory. They include matters where:

• Total legal costs are not likely to exceed $750; or
• You have provided a costs statement to the client in the preceding 12 months and the client agrees in writing to waive the right to a statement; or
• The client is:
  • A public or foreign company (or subsidiary)
  • A current practitioner or firm
  • A partnership which includes a member of one of the various accountancy organisations, financial institutions, a trustee (in that capacity), a Minister (in that capacity), a government department or a public authority.

You should consider the provisions of the Act very carefully if you intend to rely on one of these exceptions. Further information may be obtained from a duty solicitor.
Ph: (03) 9607 9311.

A. Effective communication is important for many people in many different roles. For solicitors, it is actually compulsory. For example:

• Rule 39.1 of the Professional Conduct and Practice Rules 2005 (pdf), requires a practitioner to communicate "effectively and promptly with clients of the practitioner".
• The Legal Profession Act 2004 (pdf) states that costs statements or retainer letters "must be expressed in clear plain language".

Using plain english or, more accurately, plain language, is one major step towards effective communication. Plain language does not mean "dumbing down" or patronising. It means assessing your target audience and then choosing appropriate language and format, to get your message across clearly, concisely and accurately.

Depending on the target audience, plain language might involve:

• Choosing verbal or pictorial, as well as written, communication tools. An increasing amount of community information is available in alternative formats such as video.
• Selecting audience-appropriate words and avoiding "legalese". Old favourites like "hereinbefore" are still surprisingly common.
• Recognising and working with language barriers.

Plain Language is also a valuable risk management strategy. Many complaints about solicitors could be avoided by effective communication. A complaint is less likely if your clients understand:

• What you are doing;
• Why you are doing it;
• How long it is likely to take;
• What it may cost; and
• Reasonable expectations of outcomes.

Further reading:

The LIV’s Ethics Department offers workshops for firms on effective communication in legal practice. To book a session contact:

Ethics Department
Ph: (03) 9607 9336
Email: ethics@liv.asn.au

• Plain Language for Lawyers (3rd edition), Asprey, M.M. Available from the LIV bookshop.

To borrow related titles from the library, go to the library section of this website and enter the subject search term "Plain English".

A. Although it is not expressly forbidden in Australia to have a personal relationship with a client, it is inadvisable. A personal relationship can easily:

• impair your objectivity;
• create a conflict of interest; and
• may amount to an abuse of your obligations to your client.

Be particularly wary where the nature of the matter places the client at a perceived emotional disadvantage or a position of emotional dependence. The obvious example is family law proceedings.

• One extraordinary example appears in “Lewis & Kyrou’s Handy Hints on Legal Practice” (3^rd Edition):
• 1976, a solicitor, who refused to give his name, telephoned the LIV and asked, "Is it OK to have sexual intercourse with my client?"
  The caller was obviously in a state of barely contained ardour. Clearly it was a situation which could not await a ruling in writing from the Ethics Committee. He was told that it all depended on the nature of the professional relationship. Before the LIV had a chance to finish telling him that he was not entitled to take advantage of the client's emotional dependence upon him, particularly in a matrimonial case, there came an agitated interjection, "But I'm a conveyancer!”

• In Bar Association of Queensland v Lamb [1972] ALR 285, a solicitor was not disqualified from admission to the Queensland Bar, despite engaging in a "reprehensible" sexual relationship with a client.

It can also be unwise to act where you have only a social relationship with the client, simply because your impartiality may be called into question and your usual professional judgment may be inadvertently impaired. However this is not a blanket prohibition.

For example: in R4017 the Ethics Committee found that a solicitor could continue acting for the husband in family law proceedings notwithstanding a limited social relationship with both the husband and wife.

Further reading:

• ”Lewis & Kyrou’s Handy Hints on Legal Practice” (3^rd Edition), G Lewis, E Kyrou, A Dinelli, chapters 15 & 16 Acting for friends or relatives & Sexual relations with clients. Available from the LIV Bookshop.
• ”Lawyers' Professional Responsibility ” (3rd ed) GE Dal Pont.
• "Solicitor Acting for Relatives or Close Associates" V Shirvington NSW Law Society Journal 16 (1995) 33(7). Available from the LIV Library.
• "A Fool for a Client? Defamation a Case in Point" V Shirvington, NSW Law Society Journal 26 (1997) 35(4). Available from the LIV Library.
• V Shirvington, “Solicitor Acting for Relatives or Close Associates” (1995) 33(7) Law Society Journal 16.
• V Shirvington, “A Fool for a Client? Defamation a Case in Point” (1997) 35(4) Law Society Journal 26.

A. As a general rule, a law firm should not allow another entity to use its letterhead unless each letter is approved in final form or actually prepared by the legal firm.

The LIV’s's Ethics Committee has considered this problem several times.
See for example VLR/01/1116:

• A law firm allowed a charitable organisation to use its letterhead to send out letters of demand, as part of the firm's support for the organisation.
  Read this decision in full.

The Ethics Committee is considering drafting formal guidelines on the appropriate use of letterhead. Guidelines will be posted here when available.

A.

General rule one: new matters

A solicitor may accept instructions from a client whether or not the client has already retained another practitioner in the same matter:

• This reflects the general principle that a person should have the freedom to instruct their legal representative of choice.
• It also allows clients to get a second (or third, or fourth) opinion about their legal matters.

Exception:
The practice rules may reasonably limit the general rule.

General rule two: opposing clients

A solicitor must not communicate with an opposing client who is legally represented. There are only a few very narrow exceptions, set out below.

Exceptions:
a) Litigious matters (Rule 18.4)

Communication is allowed only where:

• The opposing solicitor has consented (Rule 18.4.1);
• The practitioner believes on reasonable grounds that the communication is urgent and not unfair (Rule 18.4.2); or
• The communication is solely to ask who represents the opposing client (Rule 18.4.3).

b) Non-litigious matters (Rule 25)

Communication is only allowed where:

• The communication (notified to the other party’s solicitor) is solely to ask the other party to contact their practitioner, because their practitioner has failed to respond to communications including the notice, after a reasonable time (Rule 25.1.1);
• The other practitioner consents (Rule 25.1.2); and
• Urgency requires the communication and it would not be unfair to the other party. (Rule 25.1.3)

Rule 25.2 allows a client’s former solicitor to contact a client, even though the client now has a new solicitor, to make arrangements for finalising instructions and transferring files.

A. Whether or not swearing is discourteous, offensive or provocative is a matter of interpretation. While social morals certainly change over time, there are still many people who consider swearing to be inherently offensive. As higher standards tend to be applied to solicitors, a combination of common courtesy and common sense is called for. It is unlikely that swearing is a necessary part of your practice – why put yourself at risk by engaging in it?

Practitioners are expected to treat each other with courtesy and to avoid offensive and provocative language and conduct (Rule 21,  Professional Conduct and Practice Rules 2005 (pdf) ). This is just one of the ways we are expected to maintain the integrity and reputation of the legal profession. When one practitioner uses language that another considers offensive, it is up to the individual to complain. If a complaint is made, it is taken seriously and investigated. Solicitors have certainly been reprimanded for offensive language.

Useful links

Free up to date electronic copies of legislation regulating the legal profession in Victoria can be accessed from the Acts, regulation & forms webpage.