By Simone Herbert-Lowe -
Snapshot
- The duty of competency is one of the fundamental duties of a lawyer.
- Other jurisdictions now recognise lawyers’ duty of technological competency.
- Any such duty of competency may extend to understanding and mitigating risks associated with technology used by a legal practice, particularly where these risks impact other ethical obligations.
Solicitors are under a duty, in contract and tort, to exercise reasonable care in the provision of legal services. Noting that the paramount duty of a lawyer is to the court and the administration of justice, the duty to ‘deliver legal services competently, diligently and as promptly as reasonably possible’ is described as one of the five fundamental duties of a lawyer in the Legal Profession Uniform Law Australian Solicitors Conduct Rules, rule 4.1.3 (‘ASCR’).
Solicitors also owe a fiduciary duty not to disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement, subject to any overriding duty, with this duty also being an implied term of the retainer agreement and codified in Rule 9 of the ASCR. Maintaining confidentiality has always been fundamental to public confidence in the legal system and to the lawyer/client relationship.
Rule 37.1 of the ASCR provides that a solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter.
