By and -

Snapshot

  • A solicitor’s responsibility has always been to provide clear and timely advice to assist the client in understanding the legal issues so as to make informed choices about their matter.
  • This responsibility is the foundation for a law practice’s obligation to take all reasonable steps to satisfy itself the client has understood and given consent to the proposed course of action and the proposed costs.
  • What constitutes ‘all reasonable steps’ depends on a number of factors.

To the already stressed solicitor, not getting paid for the work they do can be demoralising. Complaints are frequently received from disgruntled clients after they receive their solicitor’s tax invoice calculated at an agreed hourly rate. It is often not the dollar value of the invoice that gives rise to a complaint. It is that the disgruntled client does not understand what their solicitor actually did for the dollar value of the tax invoice.

The presumption of undue influence

It has always been the solicitor’s responsibility to make clear to the client what is expected both of the solicitor and the client under the contract (or retainer) upon which their relationship is based. Within this relationship solicitors operate under the presumption of undue influence.

The presumption of undue influence arises whenever ‘the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter’ (per Chief Justice Latham, Johnson v Buttress (1936) 56 CLR 113 at [119]).

It is because solicitors operate under the presumption of undue influence that it has long been accepted that a solicitor should make clear to his/her client not only his/her costs but the legal effect of a step which the client is proposing to take:

‘if… a solicitor is retained generally to act in a client’s interests in relation to a transaction into which the client is proposing to enter… the solicitor is bound to go through the contractual documents… and explain to the client in terms she is likely to understand the rights and obligations to which it will subject her’ (Lederberger & Anor v Mediterranean Olives Financial Pty Ltd & Ors [2012] VSCA 262 at [100]).

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