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FLAST
·
2022-01-27T03:31:09+0000
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Financials and Parenting matter. The lawyer withheld a crucial (offer of settlement) email from me for six months prior to the Final Hearing. Options?
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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Duties Owed to Clients
Competence
Duties owed to clients: Duty of competence
Duty of care under tort law
Standard of care
Breach of duty of competence