Commerical litigation & dispute resolutionRegulatory & Compliance

Solicitors are bound by various obligations to their clients. It is important to understand these obligations in order to comprehend when they may be breached. It is also useful to understand the processes involved in dealing with these issues, particularly in relation to unsatisfactory professional conduct. This article will summarise some of the duties solicitors are bound by, with particular reference to the duty not to illegitimately intimidate, and illustrate how these issues are addressed in practice.

Solicitor-client relationships are based in contract by way of a retainer. This comprises the solicitor’s duties of performance. But solicitors owe contractual duties beyond the explicit terms, including an implied term that he or she will exercise reasonable care and skill. (see Esso Petroleum Co Ltd v Mardon [1976] QB 801 at 819) Solicitors also have a duty not to illegitimately intimidate. Rule 34.1.2 of the Solicitor Conduct Rules NSW (2015) forms part of this duty, prohibiting the threat of criminal or disciplinary proceedings against default of a person to satisfy concurrent civil liability to the solicitor’s client.

In terms of the complaints process, these are dealt with by the Office of the Legal Services Commissioner in New South Wales. The Commissioner may investigate, mediate or close a complaint, or refer it to the Law Society for investigation. A complaint regarding a solicitor can be made by any individual or body and may relate to any dispute or issue. The following must be met when making a complaint:

  1. The complaint is made within three years of the conduct;
  2. The complaint is made in writing;
  3. The complaint includes details as to the complainant, the solicitor that is the subject of the complaint and the relevant unsatisfactory professional conduct.

The case of Legal Profession Complaints Committee v Amsden [2014] WASAT 57 illustrates where the actions of a solicitor may constitute unsatisfactory professional conduct. Unsatisfactory professional conduct occurs where behaviour falls short of societal expectations regarding solicitor competency. (see eg Legal Profession Uniform Law 2014 (NSW) s 296, 297(1)(a))

A. Facts

Mr A and Ms A owned one of the three strata units in a strata complex in which Ms Amsden, the practitioner, owned the other two units and managed the strata company. There were issues regarding the air conditioning unit installed on Mr A and Ms A unit. Ms Amsden made inquiries with a law practice (BPC) on the matter. A letter was later sent by Ms Amsden to Mr and Ms A demanding payment for legal fees and disbursements paid to BPC for an earlier letter demanding that they remove an air conditioning unit, as well as the filing paid by Ms Amdsen aid to the State Administrative Tribunal in the proceedings which ensued. Ms Amsden subsequently commenced a minor case claim for the amount against them in the WA Magistrates Court.

B. Findings and Conclusion

At [45] the Tribunal stated that Ms Amsden ‘had no entitlement to seek recovery of BPC’s fees and disbursements and the filing fee in the SAT proceeding from Mr A and Ms A and that the Magistrates Court proceeding had no prospects of success’ and that ‘Mr A and Ms A were under no existing liability to pay the amount that the practitioner demanded.’ Demanding payment and threatening to commence proceedings lacking any legal foundation will be considered to amount to at least unsatisfactory professional conduct. The Tribunal found the duties of fairness and propriety are binding on a practitioner whether he or she is acting for a client or representing himself or herself. (see [68]) Honest but mistaken belief that the practitioner has a legitimate claim and cause of action is no defence to such conduct.

It is important to understand what the duties of solicitors are and where these may be breached in order to effectively protect your own interests. It is helpful to seek further legal advice in these situations, as these issues can potentially perpetuate further costs and litigation.

To find out more about Regulation & Compliance check out our Resources Centre. If you need any further advice about Solicitor’s Duties or a Solicitor’s unsatisfactory professional conduct, please get in touch today!

This article was authorised by Warwick Heeson.

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