By Jen McMillan -
Snapshot
- When your client’s instructions seem unreasonable, it is important to give robust advice and to document that advice.
- If the client persists in their instructions, notwithstanding legal advice to the contrary, you may need to consider whether to continue to act.
- In the context of will instructions, a lawyer’s duty is to prepare a will in accordance with the client’s instructions, even if they are contrary to the lawyer’s advice.
In a litigation context, lawyers are conditioned to manage client expectations and steer them towards reasonable outcomes. Under Schedule 2 of the Legal Profession Uniform Law Application Act 2014, a law practice must not provide legal services on a claim or defence of a claim for damages unless a responsible legal practitioner reasonably believes on the basis of provable facts and a reasonable arguable view of the law that the claim or the defence has reasonable prospects of success. Away from litigation, however, there can be more scope to spill over the boundaries of reasonableness, especially in transactional work where your client is in a strong bargaining position.
Recent judicial consideration
What about in the context of making a will? What if your client wants to do something that seems unworkable, unwise or impossible? These questions are explored in the decision of Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8 (currently under appeal), which concerned the will and estate of Kenneth Talbot, a successful and very wealthy mining entrepreneur, who died in a plane crash in the Republic of Congo in 2010.
