If a solicitor is unwise enough to undertake irreconcilable Risk is Borne by Solicitor – duties, it has been judicially observed is his own fault, and he cannot use his discomfiture as a reason why his duty to “it either client should be taken to have been modified.’ Hilton v Barker Booth PCPR 8.3 The lawyer must inform the client **Duty of Consent & Prevention – – and ensure that each client is aware that the lawyer is intending to act for the other party and consents to the lawyer so acting in the knowledge that the lawyer Must ensure that PCPR 8.3(a) – May be thereby prevented from Prevent disclosure to other party – disclosing to each party all information relevant to the matter within the knowledge or giving advise to one party that is contrary to lawyers’ the interests of another; and Will cease to act for all Terminate retainer if Contrary Interests – parties if the lawyer would otherwise be obliged to act in a manner contrary to the interests of one or more of them. If representing lawyers for each Disclose nature of personal relationships – party are siblings or in a contentious matter then ‘parents, children, spouses’ the clients must be informed and only after client consultation should the matter proceed. The nature of fiduciary relationships relevant places Limitations on Client Consent – restraints on the degree to which a client can consent to the modification or ‘removal’ of such duties. Marron v J Catham Daunt Pty Ltd By limiting the scope of the retainer, the Limiting the Scope of the Retainer – lawyer can seek to entirely avoid the conflict that may otherwise arise. of the limitations on the retainer scope, and is Client must be aware – relevantly position to obtain independent legal or financial advice on the matters outside the scope. The client can consent to the Consent to existing or future conflict – concurrent conflict whether from the outset or when the conflict arises at a later point. The lawyer always bears the onus of proving that Lawyer bears onus – each client has consented to the multiple representation with a full understanding of the existence and potential ramifications of the conflict of interest. Marron v J Chatham Duant Pty Ltd If the lawyer requests Lawyer should encourage independent advice – consent then they should also encourage the client to seek independent advice on the matter. Clark Boyce v Mouat A lawyer should not be entirely driven Independent professional judgement – by their clients demands and must assess on a true and correct basis – –
Risk is Borne by Solicitor – If a solicitor is unwise enough to undertake irreconcilable duties, it has been judicially observed “it is his own fault, and he cannot use his discomfiture as a reason why his duty to either client should be taken to have been modified.’ Hilton v Barker Booth **Duty of Consent & Prevention – PCPR 8.3 – The lawyer must inform the client and ensure that each client is aware that the lawyer is intending to act for the other party and consents to the lawyer so acting in the knowledge that the lawyer Must ensure that – PCPR 8.3(a) Prevent disclosure to other party – May be thereby prevented from disclosing to each party all information relevant to the matter within the lawyers’ knowledge or giving advise to one party that is contrary to the interests of another; and Terminate retainer if Contrary Interests – Will cease to act for all parties if the lawyer would otherwise be obliged to act in a manner contrary to the interests of one or more of them. Disclose nature of personal relationships – If representing lawyers for each party are ‘parents, children, siblings or spouses’ in a contentious matter then the clients must be informed and only after client consultation should the matter proceed. Limitations on Client Consent – The nature of fiduciary relationships relevant places restraints on the degree to which a client can consent to the modification or ‘removal’ of such duties. Marron v J Catham Daunt Pty Ltd Limiting the Scope of the Retainer – By limiting the scope of the retainer, the lawyer can seek to entirely avoid the conflict that may otherwise arise. Client must be aware – of the limitations on the retainer scope, and is relevantly position to obtain independent legal or financial advice on the matters outside the scope. Consent to existing or future conflict – The client can consent to the concurrent conflict whether from the outset or when the conflict arises at a later point. Lawyer bears onus – The lawyer always bears the onus of proving that each client has consented to the multiple representation with a full understanding of the existence and potential ramifications of the conflict of interest. Marron v J Chatham Duant Pty Ltd Lawyer should encourage independent advice – If the lawyer requests consent then they should also encourage the client to seek independent advice on the matter. Clark Boyce v Mouat Independent professional judgement – A lawyer should not be entirely driven by their clients demands and must assess – on a true and correct basis –
Ethics_Summary.docx