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Duties Owed to Clients

Competence

  • Tort law (negligence - standard of care)
  • Contract (implied term of skill and care)
  • Statute (s 18 Australian Consumer Law)
  • Fiduciary law (duties mandated by equity)

Duties owed to clients: Duty of competence

  • Under:
    • contract law – implied term of skill and care; and
    • tort law – duty to take reasonable care (negligence).
  • Rule 4.1.3 SCR: a solicitor must deliver legal services competently, diligently and as promptly as reasonably possible.
  • ‘Competence’ has no legal definition.
    • Examples of conduct potentially falling short of expected level of competency:
      • not advising client about limitation period
      • missing deadline
      • making representations about things that the lawyer cannot control

Duty of care under tort law

  • Lawyers can be held to be negligent if fall below requisite standard of care.
    • May also amount to misconduct or unsatisfactory professional conduct.
  • Duty to:
    • act in best interests of client
    • disclose all material information
    • Where is a real and foreseeable risk of economic loss to a client (Hawkins v Clayton).

Standard of care

  • That of a qualified, reasonably competent and careful lawyer in the practice of their profession (Hawkins v Clayton (1988)).
    • ordinary, skilled person exercising and professing to have that special skill: Rogers v Whitaker (1992) 175 CLR 479.

Breach of duty of competence

  • Damages award:
    • contract – difference in position from if retainer had been performed.
    • tort – putting client in position would have been in had tort not been committed.
      • Causation: would client have behaved the same way even if there was no breach? (Berry v Kanakis (2002) NSW ConvR 56-022).
  • Disciplinary action – misconduct or unsatisfactory professional conduct

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