NSW Clarification of Solicitor's Rules 17.2?

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lazi

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12 December 2019
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According to 17.2 of the Solicitor's Rules, a solicitor will not have breached his instructions, "simply by choosing contrary to those instructions, to exercise the forensic judgments called for during the case...so as to confine any hearing to those issues which the solicitor believes to be the real issues." This seems to give the solicitor total immunity to do whatever he pleases.

Surely that is not correct, is it?
 

Rob Legat - SBPL

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No, it doesn't work like that. The conduct rules work together - not in isolation.

While the wording of the rule appears very stark there are other factors which must be taken into account. For starters, don't forget sub-clauses 17.2.2 (presenting the case as quickly and simply as consistent with its robust advancement) and 17.2.3 (informing the court of persuasive authority against the case).

It's a positive obligation to (as set out in the commentary) "'prune' the case of 'irrelevancies and side issues that seem important to the client,' but are not important to the determination of the case". What may seem important to the client may not be admissible, or relevant, to the claim/defence. A solicitor's first duty is to the court and the administration of justice. This is partly discharged by not wasting court time on irrelevant considerations.

That aside, however, the solicitor must still use an appropriate standard of care and skill. This comes under rule 4 - particularly 4.1.3 to "deliver legal services competently, diligently and as promptly as reasonably possible". If a solicitor were to ignore relevant aspects of a client's case, while they may not run afoul of rule 17.2 they would likely breach rule 4.

As I assume this has happened to you, I'd suggest a talk with the solicitor first to ask them to explain their reasoning for not doing as instructed. While some solicitors are not the best communicators as to why they are doing something, they should be able to easily and quickly give you an answer explaining their conduct. If they can't, or if their answer doesn't make sense, that might be a trigger for you to consider things further.
 
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lazi

Active Member
12 December 2019
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Thanks, Rob, your reply certainly puts some perspective on the matter.

I am still worried however by the term "believes" in 17.2.1: in other words, a solicitor may confine the matter to "x" which he believes to be the real issue and if I challenge him and say you disregarded "y" and "z", he may reply, "Yes, I did. But I BELIEVED that only "x" was the real issue.

This "belief" may be utterly incompetent, but...if he truly believes it, it's a 100% escape clause.
I suppose it comes down to what does the term "believe" mean. I may, for example, believe that 1 + 1 = 3, but I don't think that satisfies the term "belief". I'm wondering if this 17.2.1 "belief" has to be grounded in some way...for example..does the belief have to be "reasonable" or measure up to some standard?

Another question that arises...if a solicitor makes a judgment call that "breaches" his instructions, does he have to satisfy all the three sub-clauses (17.2.1, 17.2.2, 17.2.3) or is it sufficient that he just satisfies 17.2.1?
 

Rob Legat - SBPL

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The belief must be reasonable. If it's unreasonable, then the solicitor has failed to deliver their services 'competently'.

And for your second question: No. While the sub-clauses are expressed as 'or' , the solicitors can't just pick one. The reasoning for that is there's no credible way the rule can be construed in that manner due to 17.2.3 and the overarching requirement to the court and the administration of justice. A solicitor must always inform the court of persuasive authorities relevant to the issues at hand, even if they are contrary to the client's interests (which isn't always clear cut in practice...).

To further demonstrate by example: In a criminal matter, if the client instructs their solicitor that they will plead not guilty but has told the solicitor that they did commit the crime - then the solicitor cannot act in accordance with the instructions (i.e. that the client is not guilty), because they are in possession of information which indicates that such a plea may be a lie.
 

lazi

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12 December 2019
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To put a “face” to this issue, I gave my solicitor instructions to run two arguments, “A” and “B”. He agreed strongly with “A” but was very reticent about “B”. But I insisted and in the end he said, “I may run “B” in the passing”. I replied, “OK. Just run it anyway you can”. As it turned out, he did not run “B” at all.

I lost the case and the matter went to the CCA and the Supreme Court was very clear that “B” was a real issue and should have been considered (it being one of the five elements of the statute). So clearly the solicitor was wrong/incompetent, but…the fly in the ointment was that he “believed” he was whittling the case down to “real issues”. This, at least on my reading of it, gives him the necessary immunity.

As you say, the solicitor must still use an appropriate level of skill (rule 4), but…even if he did not act competently, his belief that he was acting competently appears to absolve him of the need to act competently. It is this term “believes” that seems to make solicitors not-accountable.
 

Rob Legat - SBPL

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As I said, the belief would have to be reasonable. Given the findings on appeal, I would think you have cause to raise a complaint with the NSW Legal Services Commissioner for unsatisfactory professional conduct due to a failure to follow instructions. Here's their website: Office of the Legal Services Commissioner
 

lazi

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12 December 2019
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Thanks Rob, and one cannot argue with the premise that a belief has to be reasonable but, of course, a lot of beliefs are not, but they are still beliefs, and that is what is confusing. Seems to edging into metaphysics, rather than law. But anyway I'm wondering if you, or anyone else can help me find a few precedents on this subject (legal malpractice). I've searched the internet but come up with exactly nothing. I'm sure there must be some case law on this.
 

Rob Legat - SBPL

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Nope, squarely in law. The reasonableness test is a pervasive and common one that courts deal with all the time. I’d suggest going to any of the legal services commissioners’ websites and looking for notable decisions.

Ultimately, it will be up to the LSC. This isn’t something you prosecute yourself.
 

lazi

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12 December 2019
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I seem to have reached the end of the line. According to D'Orta-Ekenaike v Victoria Legal Aid, [104], "The common law regards ... that advocates cannot be sued for damages for carelessness in conducting litigation.”

D’orta makes it clear that this includes “out of court” work, insofar as “out of court” work leads up to the actual court work.

Other “out of court” work is also stymied. For example, the Legal Profession Uniform Law Australian Solicitors' Conduct Rules say, for example that "A solicitor who has given an undertaking in the course of legal practice must honour that undertaking" [6.1] - nonetheless the Rules make it clear that this "cannot be enforced by a third party" [2.3]

In other words, even a breach of contract seems out of bounds, that is, not actionable.

Unfortunately I've already issued a statement of claim on this matter.

It seems I have painted myself into a corner.

But I’m not sure it can be written off so easily.

It seems to me the Solicitors’ Rules are fundamentally flawed

Rule 4 states the solicitor must act competently

While rule 17 allows him to not act competently (in the belief that he is doing the right thing)

You can’t have it both ways: either rule 4 stands, or it does not.

Am I missing something here?
 

lazi

Active Member
12 December 2019
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I have to amend what I said in my last post...

I now think rule 17 does not allow incompetence on the part of the solicitor.

Rule 17 forces the solicitor to act "against the client's best interests" if those interests are in conflict with the interests of the Court.

But acting against the client's best interests is not necessarily incompetence; it is just competence of a different kind.