On occasion we receive instructions from a third party (a relative, friend or interposed advisor). The question then arises: Can we act for the client on the instructions from a third party?
The answer is that we must be extremely careful in evaluating whether this is something we should do. We must keep in mind the following:
- Rule 8 Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) provides that we must follow a client’s lawful, proper and competent instructions, and
- Rule 7.1 ASCR provides that we must provide clear and timely advice to assist the client to understand relevant legal issues and to make informed choices about action to be taken.
It is always preferable to develop a personal rapport with the client and meet with them if at all possible, face to face. We should be cautious about accepting instructions from someone we do not know. Verification of identity is critical.
When instructions are coming from a third party we must be clear as to who the client is. If it is not the third party, then we should ensure we meet with the client to obtain instructions directly.
It is advisable to see the client alone to ensure there is no external influences on the client, particularly when the initial instructions from the third party benefit or favour the third party.
Client instructions should always be confirmed in writing.
A client may expressly authorise a third party to instruct on their behalf. Such authority should be in writing and freely given. Preferably, it should be in a power of attorney.
Be clear who the client is. This should be clearly stated in your retainer or costs agreement.
We owe a duty of confidentiality to the client (Rule 9 ASCR). We must have the client’s consent to disclose information to a third party (Rule 9.2.1 ASCR – preferably, the consent should be express and in writing). Remember the client is fully entitled to limit what is disclosed to others.
It may be necessary when dealing with a third party to:
- confirm that we act for the client and are not acting or advising them
- inform a third party they should consult with their own solicitor
- advise that we act in the best interests of the client and act in those interests alone (subject to our duty to the court and the administration of justice)
- control the way in which a third party communicates with us to avoid potential conflicts of duty arising
- scope carefully the work to be done and who is responsible for the fees and costs.
It is important to reflect (particularly when a third party is an interposed advisor) if this is a matter or transaction we should be acting in. When in doubt, don’t. Remember, there may be exposure to damages or compensation for failing to act in accordance with the instructions of the client.