In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship. The term ‘fiduciary’ means trust, so in a fiduciary relationship one person (the client) places his or her confidence, good faith, reliance and trust in another (the solicitor), whose aid, advice or protection is sought in some matter.
What are the duties a solicitor owes their client?
A fiduciary relationship creates many legal duties for the person in whom the trust has been placed. Generally this person must act in the best interests of the other. In relation to their clients, solicitors must:
- act honestly and fairly in a client’s best interests
- act with due skill and diligence, reasonable promptness and courtesy
- maintain a client’s confidences
- avoid conflicts of interest
- communicate effectively and promptly with clients
- follow a client’s instructions.
There are many different components to these duties. The major components are explained below.
Please note that solicitors also owe duties to the Courts and the profession, which sometimes may be at odds with their duties to clients. Whilst clients usually have priority, solicitors cannot act in way that compromises the integrity of the law.
Disclosure
Subject to statutory exemptions, your solicitor must tell you in writing how much they will charge you and about other expenses before they start working for you. This is known as disclosure. Once you have agreed to use a particular solicitor, he or she should also send you regular bills for their services, setting out the work performed and the charges for each service.
Confidentiality
All conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed to someone with your permission or under an order from a Court. The nature and details of your case are also confidential and must not be revealed to anyone without your permission. Solicitors must also follow strict rules in the maintenance of client files.
Conflicts of interest
Your solicitor must not allow their own interests, or the interests of an associate, to conflict with those of a client. Your solicitor must not act for you if they have previously provided legal advice to a person you are in dispute with. They should make you aware of a potential conflict as soon as they become aware of it. If you believe that your solicitor may have a conflict you should raise this with them.
Following instructions
Your solicitor cannot make any decisions without your instructions. He or she must carry out your instructions as promptly and efficiently as possible in accordance with the law.
Clear communication
As the client, you are entitled to regular updates on the progress of your matter, preferably in writing. Your solicitor must provide advice about all your options, including the best course of action, which may be alternative forms of dispute resolution. Your solicitor must also treat you with respect, be polite, patient and assist in your understanding of the law.
Handling your money
Your solicitor may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement.
How duties are enforced
The fiduciary concept in the practise of law is now encapsulated in various pieces of legislation governing the legal profession and in a code of ethics called the Solicitors' Rules.
All solicitors are obliged to follow these laws and ethical standards. Failure to do so entitles the client to make a complaint in certain circumstances, which can lead to the solicitor facing a range of disciplinary actions.
