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 matter.

Commentary

7.1 Clear and timely advice

The solicitor’s duty is to assist the client to understand the relevant legal issues and to make informed choices about potential actions. In particular, the solicitor must provide clear and timely advice on the risks of the transaction and their consequences: Fox v Everingham (1983) 50 ALR 337; Henderson v Amadio Pty (No 1) (1995) 62 FCR 1. However, the advice required is limited to the legal risks and consequences, not commercial or personal ones. The rule is a specific application of the fundamental ethical duties in Rule 4.

The duty to advise may arise where advice is not specifically sought or information provided to suggest the need for such advice: Littler v Price [2005] 1 Qd R 275, [51]; Yates Property Corporation v Boland (1998) 85 FCR 84. 

7.2 Alternative dispute resolution

To make an informed choice, a client needs to be aware of alternatives to litigation. Unless the solicitor has reasonable grounds to believe the client is aware of the alternatives, the solicitor must include them in their advice. Rule 7.2 mirrors legislation: especially, ss 43 and 44 Civil Proceedings Act 2011 (Qld); s 65(1) (SA); s 18J Civil Procedure Act 2005 (NSW), Civil Dispute Resolution Act 2001 (Cth). The rule shifts focus away from litigation by ensuring that an otherwise unaware client makes informed choices on alternatives to the fully contested adjudication of cases.