8. Client instructions

1. A solicitor must follow a client's lawful, proper and competent instructions.

Commentary

Lawful and proper

Solicitors have an ethical obligation to not engage in conduct that may diminish the public confidence in the admnistration of justice. This requires that solicitors promote a respect for the law and its administration.²²

Solicitors must not engage in dishonest, illegal or unprofessional behaviour which is likely to a material degree, to be prejudicial to or diminish public confidence in the administration of justice. A solicitor must therefore not seek to advance their client’s interests in an unfair or dishonest way.²³ Nor should solicitors knowingly assist a client, another lawyer, or a third party breach the law.

What are lawful and proper instructions will be informed by, amongst other professional obligations, those imposed by Rules 3, 9, 17, 19, 20 and 21.

Competent instructions

At common law, every adult person is presumed to be competent or capable to make decisions, including instructing solicitors, unless otherwise proven: Murphy v Doman (2003) 58 NSWLR 51. The onus of proof is on the person alleging incapacity or incompetence: Dalle-Molle v Manos (2004) 88 SASR 193; Pratt v Dickson [2000] QSC 314.

The tests for competency depend on the nature of the intended transaction. The Lexon Checklist on Capacity states those tests comprehensively. Age, mental capacity and restraints on the exercise of free will may be factors. The tests for litigation and contract and wills are discussed below.

For Queensland practitioners, refer to the Queensland Handbook for Practitioners on Legal Capacity.

Litigation and contract (capacity tests and comment)

The capacity required for a person to participate in legal proceedings is the same as that required for a person to enter into legal transactions. Each party 'shall have such soundness of mind as to be capable of understanding the general nature of what he is doing': Gibbons v Wright (1954) 91 CLR 423, 437. The question is whether the client can understand the nature of the legal consequences which will be brought about: at 437. This is a subjective test: it is designed to 'ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected': Masterman-Lister v Brutton (Nos 1 and 2) [2003] 1 WLR 1511, [31].

The relevant issues will vary from case to case, but will generally require that the litigant understand the "nature of the litigation, the purpose and its possible outcomes, including the risks in costs": Pistorino v Connell & Ors [2012] VSC 438 per Dixon J at [20].

When a client becomes incapacitated, their solicitor's authority ends: Yonge v Toynbee [1910] 1 KB 215 (a case of mental illness). Even though there is a presumption of the client's capacity to instruct, the solicitor must be satisfied of that capacity. Indeed, where 'circumstances place the lawyer on notice that the client's mental capacity is in issue, active consideration will be required': Goddard Elliott v Fritsch [2012] VSC 87, 418 ('Goddard'). If a solicitor is not satisfied that the client has the mental capacity to instruct in the litigation, the solicitor must raise the issue with the court: Goddard, [568]. Supreme Courts have inherent jurisdiction to order that a litigant be independently examined for mental capacity: Re Magavalis [1983] 1 Qd R 59, 63-4. In Till v Nominal Defendant [2010] QSC 121, the plaintiff's action was stayed until his capacity to provide instructions and make decisions about his legal rights was established.

Not only does the authority end, but the solicitor has a duty of care not to follow instructions when a client lacks the mental capacity to give them. In Goddard, Bell J found that, 'it is always to be expected of a lawyer exercising ordinary skill and competence that they are reasonably satisfied of their client's mental capacity to instruct' (at 418), 'the lawyer owed the client a duty of care not to take or act on instructions when it knew or should have known that he lacked the mental capacity to give instructions' (at 421). 'Where the client does not have that capacity the lawyer does not have the authority to represent them in the proceeding, except for certain limited purposes, most particularly perhaps for the purpose of an inquiry into that question. I say perhaps because they are not really representing the client in that process, but rather assisting the court as an officer of the court': at 549 (emphasis added).

Will instructions

In drawing a will, "the solicitor is simply under an obligation to act on any coherent instructions": WA Lee & AA Pearce, Lee's Manual of Queensland Succession Law para [3.90]²⁵. If however the instructions are not coherent, then the solicitor is on notice that the testator's capacity may be an issue, and has a duty to confirm that capacity. 'A lawyer who…is left in real doubt as to the testator's capacity to give instructions should not draw the will. A solicitor who draws a will in circumstances where the client is incapable of giving instructions may be exposed to civil liability or professional discipline.'²⁶

It is prudent practice for a solicitor to:

• take instructions in person, rather than remotely or through third parties. This also helps ensure that the client is not subject to the influence of others;
• ask questions to probe the client’s understanding;
• make detailed file notes of the attendances, events and discussions which have taken place;²⁷ and
• if the circumstances warrant it, seek specialised advice from a qualified health professional as to the capacity of the client to make a will.

In considering the client's capacity to make a will, the solicitor should have regard to the client's understanding as to what a will is, any irrational behaviour, disorientation, lack of understanding, and any defective recollection of assets, liabilities and the persons who would normally benefit.²⁸

For Queensland practitioners, refer to the Wills and EPA Risk Procedure Pack by Lexon Insurance.

22 Refer to Rule 5.1  ASCR.

23 See Dal Pont 'Lawyers' Professional Responsibility’ Thomson Reuters 5th ed. 2013 [19.05].

24 Omitted. 

25 Thomson Reuters, 7th ed, 2012.

26 GE Dal Pont & KF Mackie, Law of Succession (LexisNexis Butterworths, 2013) 750.

27 Ibid.

28 Ibid.