Solicitors are obliged to provide clear and timely advice1 and to follow a client’s lawful, proper and competent instructions.2 That places the onus on solicitors-not clients-to ensure that advice has been understood and that client and solicitor are in unequivocal agreement as to what the client wants the solicitor to do. Any misunderstanding in this area is likely to make it impossible for the solicitor to fulfil myriad other duties, never mind ensure that the client gets the desired outcome.
Obviously, the gold standard in this regard is to have instructions in writing-and if not possible at the time, to have them reduced to writing as soon as it can be done-but it should not be thought that written instructions are an indemnity in this regard. The courts and the profession have long agreed that a significant distinction can be drawn between sophisticated and unsophisticated clients; solicitors will be expected to go to greater efforts to ensure that unsophisticated clients understand the situation and their options.
It is on this issue that the client agreement represents an opportunity for solicitors to both build the relationship with the client and ensure that they and their client remain on the same page. Building regular progress updates into the agreement will force both parties to regularly turn their minds to the progress of the matter. If these are scheduled appropriately, any dissonance between what the client wants and what the solicitor is delivering will become apparent early and usually before any lasting damage is done; similarly, if the client has misunderstood the advice this will soon become obvious.
It follows that the key to avoiding problems in this area is the appropriate scoping of every matter undertaken for a client, from conveyancing to 10-week trials. The scope should envisage these updates, and discussing the scope with the client will provide another opportunity to catch any disparity in the understandings of client and solicitor. It will also reduce the chance that money will be spent on unwanted or unnecessary services-which will ultimately be at the cost of the solicitor.
Solicitors have a fundamental duty to deliver services to clients competently,3 and step one in discharging that duty is ensuring that they know exactly what the client wants-while also ensuring the client knows what we will not do, and what we expect them to bring to the relationship. A solicitor is responsible for both what they say and what the client understands-and this is responsibility goes well beyond ensuring that a client is competent to give instructions. At its heart, the agreement between solicitor and client is a contractual arrangement (overlayed by fiduciary obligations), and like any such arrangement it can be void for uncertainties; ambiguities will also be read against the drafting party, which is almost always the solicitor.4
1 Australian Solicitors Conduct Rules 2012 (Qld) r 7 (‘ASCR’).