Check the client has authority to sue

When taking instructions to commence an action for a client, consider the following:1

  1. take the precaution of getting a written retainer for the litigation;
  2. even if the person is known to you, verify the authority of that person to provide instructions;
  3. when acting for a company, undertake a company search (this is inexpensive and a justifiable disbursement) and obtain from the appropriate officers written authority to commence or defend proceedings;
  4. if acting for more than one individual, make certain you have instructions from all;
  5. initiating an action without authority could be a breach of the duty to not deceive or knowingly or recklessly mislead the court;2
  6. establish a protocol to ensure that authority to act is verified and in writing; and
  7. when acting in debt collection matters – make certain that  you hold instructions that a debt remains outstanding and this is confirmed by the appropriate person before affidavit material is filed.

1 Based on the article S Shepherd “Authority figures: Are you entitled to act for that client?” (2012) 32 (No1) Proctor 38.

2 Australian Solicitors Conduct Rules 2012 (Qld) r 19.1.