I have received instructions from a third party (e.g. a relative of my client). Can I act for them?
Yes, but there are certain steps you should take and issues to keep in mind.
Rule 8 of the Australian Solicitors Conduct Rules 2012 ('ASCR') states that you must follow a client’s lawful, proper and competent instructions.
Rule 7, headed 'Communication of Advice', states that you 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.
It is always preferable to meet with a client face to face at the beginning of a matter, unless they are known to you. You should be cautious about accepting instructions from someone you have not met. It is best practice to obtain proof of ID from a new client.
Where instructions are initially received from a third party on behalf of the client, you should nevertheless attempt to meet with the client to obtain instructions directly from the client.
It is advisable to see the client alone to ensure that there is no undue influence on the client, particularly if you are seeing the client at the instigation of the third party and/or if the client’s instructions appear to favour the third party, even (or especially) if the third party is a relative of the client.
Generally, client instructions should then be confirmed in writing.
A client may provide you with specific authority to receive instructions from a third party on their behalf. You should ensure that this authority is in writing, genuine and freely given.Preferably it should be in a power of attorney.
Also, you need to be clear who you are acting for. A written retainer/costs agreement with the client is best practice, and as well as its other advantages, this may help avoid a dispute about who you are acting for.
Always keep in mind that you are acting for the client and not any third party, and that you have a duty of confidentiality to the client, which may prevent you from disclosing certain information to the third party – see ASCR Rule 9. The client may authorise you to deal with the third party and this authority may include disclosure of confidential details or documents to the third party, or that disclosure may have express limits – this is a matter for consideration with the client, depending on the nature of the matter and the relationship between the client and the third party. You should make sure this authority is in writing.
It may be necessary in some cases to state clearly to the third party that:
- you are not acting for them or advising them
- they may obtain their own legal advice from another solicitor if they wish (but not another solicitor at your law practice) and in some circumstances you might recommend this
- you have no duty to act in their best interests or to protect their interests and you may be required to act contrary to their interests if the interests of your client require it
- they should not tell you anything that they would not want you to tell your client, as you are duty bound to give your client all information about the matter from whatever source.
This is especially important if there is any scope for misunderstanding, for instance if they seem to think that you are acting for them as well as your client, or if they seem to be relying on you for advice, or if they are not your client but are nevertheless paying your fees. (In this latter case you should have a written costs agreement with them. They will be an ‘associated third party payer’ - see Legal Profession Act 2007 sections 301 and 322(1)(d)).
It is advisable to put all this in writing to the third party, in a letter or in the costs agreement with them if there is one, especially if they appear not to understand the position or to be unwilling to accept it.
In relation to will instructions, see Will Instructions – Potential for Conflict.
In the criminal sphere, if approached by parents of a young person facing charges see Keeping secrets - or not by Stafford Shepherd, Proctor August 2012.