Relations with clients

This section contains Rules 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16.
7. Communication of advice
    1. A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.
    2. A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.
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8. Client instructions
    1. A solicitor must follow a client's lawful, proper and competent instructions.

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9. Confidentiality
    1. A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:
      1. a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or
      2. a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client.

        EXCEPT as permitted in Rule 9.2.

    2. A solicitor may disclose confidential client information if:
      1. the client expressly or impliedly authorises disclosure;
      2. the solicitor is permitted or is compelled by law to disclose;
      3. the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;
      4. the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;
      5. the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or
      6. the information is disclosed to the insurer of the solicitor, law practice or associated entity.

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10. Conflicts concerning former clients
    1. A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2.
    2. A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS:
      1. the former client has given informed written consent to the solicitor or law practice so acting; or
      2. an effective information barrier has been established.

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11. Conflict of duties concerning current clients
    1. A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule.
    2. If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3.
    3. Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client:
      1. is aware that the solicitor or law practice is also acting for another client; and
      2. has given informed consent to the solicitor or law practice so acting.
    4. In addition to the requirements of Rule 11.3, where a solicitor or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows:
      1. a solicitor may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the solicitor acting for another client;
      2. a law practice (and the solicitors concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established.
    5. If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of the clients (or a group of clients between whom there is no conflict) provided that the duty of confidentiality to other client(s) is not put at risk and the parties have given informed consent.

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12. Conflict concerning a solicitor's own interests
    1. A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of  client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.
    2. A solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client.
    3. A solicitor must not borrow any money, nor assist an associate to borrow money, from:
      1. a client of the solicitor or of the solicitor’s law practice; or
      2. a former client of the solicitor or of the solicitor’s law practice who has indicated a continuing reliance upon the advice of the solicitor or of the solicitor’s law practice in relation to the investment of money,
        UNLESS the client is:
        1. an Authorised Deposit-taking Institution;
        2. a trustee company;
        3. the responsible entity of a managed investment scheme registered under Chapter 5C of the Corporations Act 2001 (Cth) or a custodian for such a scheme;
        4. an associate of the solicitor and the solicitor is able to discharge the onus of proving that a full written disclosure was made to the client and that the client’s interests are protected in the circumstances, whether by legal representation or otherwise; or
        5. the employer of the solicitor.
    4. A solicitor will not have breached this Rule merely by:
      1. drawing a Will appointing the solicitor or an associate of the solicitor as executor, provided the solicitor informs the client in writing before the client signs the Will:
        1. of any entitlement of the solicitor, or the solicitor’s law practice or associate, to claim executor’s commission; 
        2. of the inclusion in the Will of any provision entitling the solicitor, or the solicitor’s law practice or associate, to charge legal costs in relation to the administration of the estate; and
        3. if the solicitor or the solicitor’s law practice or associate has an entitlement to claim commission, that the client could appoint as executor a person who might make no claim for executor’s commission.
      2. drawing a Will or other instrument under which the solicitor (or the solicitor’s law practice or associate) will or may receive a substantial benefit other than any proper entitlement to executor’s commission and proper fees, provided the person instructing the solicitor is either:
        1. a member of the solicitor’s immediate family; or
        2. a solicitor, or a member of the immediate family of a solicitor, who is a partner, employer, or employee, of the solicitor.
      3. receiving a financial benefit from a third party in relation to any dealing where the solicitor represents a client, or from another service provider to whom a client has been referred by the solicitor, provided that the solicitor advises the client:
        1. that a commission or benefit is or may be payable to the solicitor in respect of the dealing or referral and the nature of that commission or benefit;
        2. that the client may refuse any referral, and
          the client has given informed consent to the commission or benefit received or which may be received.
      4. acting for a client in any dealing in which a financial benefit may be payable to a third party for referring the client, provided that the solicitor has first disclosed the payment or financial benefit to the client.

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13. Completion or termination of engagement
    1. A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS:
      1. the client has otherwise agreed;
      2. the law practice is discharged from the engagement by the client;
      3. the law practice terminates the engagement for just cause and on reasonable notice; or
      4. the engagement comes to an end by operation of law.
    2. Where a client is required to stand trial for a serious criminal offence, the client’s failure to make satisfactory arrangements for the payment of costs will not normally justify termination of the engagement UNLESS the solicitor or law practice has:
      1. served written notice on the client of the solicitor’s intention, a reasonable time before the date appointed for commencement of the trial or the commencement of the sittings of the court in which the trial is listed, providing the client at least seven (7) days to make satisfactory arrangements for payment of the solicitor’s cost; and
      2. given appropriate notice to the registrar of the court in which the trial is listed to commence.
    3. Where a client is legally assisted and the grant of aid is withdrawn or otherwise terminated, a solicitor or law practice may terminate the engagement by giving reasonable notice in writing to the client, such that the client has a reasonable opportunity to make other satisfactory arrangements for payment of costs which would be incurred if the engagement continued.

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14. Client documents
    1. A solicitor with designated responsibility for a client’s matter, must ensure that, upon completion or termination of the law practice’s engagement:
      1. the client or former client; or
      2. another person authorised by the client or former client,
        is given any client documents, (or if they are electronic documents copies of those documents), as soon as reasonably possible when requested to do so by the client, unless there is an effective lien.
    2. A solicitor or solicitor’s law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement, except where there are client instructions or legislation to the contrary.

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15. Lien over essential documents
    1. Notwithstanding Rule 14, when a solicitor claims to exercise a lien for unpaid legal costs over client documents which are essential to the client's defence or prosecution of current proceedings:
      1. if another solicitor is acting for the client, the first solicitor must surrender the documents to the second solicitor:
        1. if the second solicitor undertakes to hold the documents subject to the lien and with reasonable security for the unpaid costs; or
        2. if the first solicitor agrees to the second solicitor agreeing to pay, or entering into an agreement with the client to procure payment of, the first solicitor's costs upon completion of the relevant proceedings.
      2. alternatively, the solicitor, upon receiving reasonable security for the unpaid costs, must deliver the documents to the client.

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16. Charging for document storage
    1. A solicitor must not charge:
      1. for the storage of documents, files or other property on behalf of clients or former clients of the solicitor or law practice (or predecessors in practice); or
      2. for retrieval from storage of those documents, files or other property,
        UNLESS the client or former client has agreed in writing to such charge being made.
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