The duty of confidentiality continues after the solicitor-client retainer has ended. Upon the death of the client, confidentiality passes to the client’s legal personal representative. Rule 9.2 sets out the exceptions to this rule.

"Confidential information" is not defined in the Rules but may include:

• information regarding a former client which is directly related to a matter with a current client;
• information relevant to a competitor such as product pricing; and
• in certain situations, particular intimate knowledge of a client, their character, business or strategies.

Solicitor A cannot be compelled, in these circumstances alone, to provide a statement to Solicitor B. While Solicitor A is required to comply with the subpoena, the mere request for a statement from Solicitor B cannot be enforced.

Rule 9 requires Solicitor A not to disclose any confidential information acquired during the client’s engagement, unless the circumstances outlined under Rule 9.2 are satisfied. It would therefore be inconsistent with the confidentiality obligations owed by Solicitor A to the former client to disclose to Solicitor B any of the client’s confidential information, unless one of the exceptions had been met (e.g. client consent or court compulsion).

1. Conduct Rule 9 – confidentiality and the exception where compelled.
2. The different types of compulsion including subpoenas to produce documents, subpoenas to give evidence and notices to produce. A request is not compulsion.
3. The best practice is to notify a former client so that they can seek advice. The need to notify a current client if it is material to the retainer. Note that sometimes the solicitor is prohibited from doing so, in which case it may be necessary to cease to act for a current client.
4. The requirement to claim privilege unless such a claim is not available or the client instructs to the contrary.

The properly appointed legal personal representative. There may be issues where the LPR is involved in litigation against the deceased/estate. However, it is more likely that the appointment as LPR would not occur, or that the deceased sought advice on changing their nomination of executor once the litigation arose. Note that a client is only entitled to their part of the file (see Wentworth v de Montfort (1988) 15 NSWLR 348).           

Where there are contested probate proceedings, it may not be possible to identify the LPR until that is resolved (see Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [92]).

In considering whether to respond to a bad review and the content of any response, a solicitor should consider the following:

1. Confidentiality – Rule 9 – A client’s information is confidential and any response disclosing it must fall within one of the exceptions.
2. Conflicts – Rule 12 – if the solicitor is still acting in the matter, they may have a conflict of their own interests and the client’s, particularly if the client posted the review.
3. Independence – Rule 4 – A solicitor’s professional independence may be compromised if they do not seek independent advice about a response. It may be prudent in some circumstances to seek expert legal and social media advice, particularly relating to any defamation concerns.
4. Disrepute – Rule 5 – A response may be inappropriate and bring the profession into disrepute.
5. Administration of justice – Rules 5 and 28 – A response which relates to matters before the court may be prejudicial to the administration of justice and should not be made.

A solicitor must ensure that their wording is both honest and not a confidentiality breach.

A solicitor may terminate a retainer only in accordance with the reasons set out in Conduct Rule 13. These include as agreed with the client, and for just cause on reasonable notice.

If the solicitor is telling the client of the termination, the particular clause of the retainer or the phrase “for just cause” should suffice. However, the former may be a confidentiality breach if eg it reveals another client’s information.

Where it is the Court or another third party, “by agreement” or “for just cause on reasonable notice” should maintain confidentiality. The solicitor should note that the Court’s compulsive powers do not usually extend to forcing a solicitor to disclose the reason for termination.

There is no obligation to accept a retainer. Therefore, it may be appropriate simply to say that the solicitor has decided not to accept the retainer. Alternatively, under Conduct Rule 4, a solicitor must “deliver legal services competently, diligently and as promptly as reasonably possible”. So, where time or expertise is lacking, the solicitor might properly say they do not currently have the capacity to accept the retainer.

The Property Law Committee has issued a guideline on rebates

View the guidelines.

Even if the solicitor has not drawn the contract, by acting for the purchaser without properly disclosing the rebate, the solicitor may be assisting the client to mislead the incoming mortgagee and the court.

A starting point is to consider Rule 31 which covers inadvertent disclosures. If it has been inadvertently disclosed, then we must not read the material but must immediately contact the other solicitors. However, it may not always be inadvertent. That is when we must be aware of our fundamental obligations not to be party to any impropriety. If we think that we or our client should not have the material, then we must consider whether we can properly be party to its use. We must ensure all material can be lawfully used or we may need to terminate the retainer.

Solicitors have an obligation to not mislead a court and cannot tender any material they know to be false (see Rules 19 & 24).  In some cases, whether or not material is genuine will be a matter in dispute in the proceedings and ultimately a matter for evidence.  Where there is any question about the veracity of a document (a client’s medical certificate, for example) but the client confirms and instructs that the document is genuine, the client should be warned of the risk to the client of criminal consequences should the document be relied upon and subsequently proven to be fraudulent/false. Material obtained improperly or illegally may not always be inadmissible.  Section 138 of the Evidence Act 1995 (NSW) provides the court a discretion to admit evidence that is illegally or improperly obtained where the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. 

Finally, solicitors must remember their obligation under Conduct Rule 5 to avoid dishonest or disreputable conduct.

Except in relation to trust account irregularities, there is no statutory obligation or any rule unique to solicitors requiring a solicitor to report concerns about the professional conduct of another solicitor. Section 154 of the Legal Profession Uniform Law (NSW) requires a solicitor to report a possible trust account irregularity (in their own or another firm) to the Law Society.

In some circumstances there is an obligation to report the commission of an indictable offence – see the Crimes Act (NSW) s316 (1) and cognate provisions in other states. A solicitor also must report any show cause event in relation to themselves (ss 85 – 92 Legal Profession Uniform Law (NSW)).

The Law Society is committed to eliminating inappropriate behaviour in the profession. It fully supports the Office of the Legal Services Commissioner’s service dedicated to helping solicitors who are experiencing or witnessing such behaviour.

This service allows you to notify the OLSC of the inappropriate behaviour. You can choose whether you want to identify yourself to the OLSC, or be identified to other parties involved. The OLSC staff are specially trained to talk to you about the situation and to help you with the notification. Full details are available here http://www.olsc.nsw.gov.au/Pages/inappropriate-personal-conduct.aspx

The OLSC is encouraging you to notify them of discrimination, sexual harassment or workplace bullying in a law practice. This will enable them to take appropriate action.

As with improper conduct of another solicitor, there is no statutory obligation or rule unique to solicitors to report someone who is practising law without the appropriate practising certificate or other allowed qualification. However, solicitors have obligations as officers of the court to maintain the administration of justice Conduct Rule 3. So, for instance, a solicitor may be obliged to draw the court’s attention to an unqualified practitioner to avoid the court being misled.

The prohibition seeks to protect the benefit a client obtains from obtaining legal representation and to ensure that a solicitor’s expertise cannot be used unfairly in dealing with a layperson.

Rule 33 prevents a solicitor from directly dealing with the client of another solicitor without that other solicitor’s consent, except for urgent communications which would not result in unfairness to the other party or to enquire if the party is represented. The prohibition is not limited to contested matters, and includes communications with witnesses when a lawyer knows that the witness is represented.

Also, Rule 22.4 applies a similar requirement in relation to an insured.

The rule does not prevent social interactions which do not relate to the subject matter of the representation, but great care should be taken in any such communication.

Generally, clients may communicate directly with each other without going through their solicitors. There is no specific prohibition on such communication where one party is a solicitor, but doing so may give rise to an argument that the solicitor has (possibly inadvertently) used their skill and expertise as a solicitor to gain an unfair advantage or to exercise undue influence in any such communication. If such communications cannot be avoided it may be desirable to have a third party present. It is generally better to communicate with the other solicitor.

The other party’s wishes do not release a solicitor from their overarching duty to comply with the rule. The solicitor should inform the opposing party that they cannot communicate directly with the party unless their solicitor agrees. If the solicitor wishes to proceed with such communication, they will need to contact the opposing solicitor and request consent under Rule 33.

Care should be exercised in accepting and discharging such a retainer.

Rule 33 restricts a solicitor’s ability to deal directly with the client of another practitioner. It would generally be accepted or understood that the Rule would apply to practitioners on opposing sides to a transaction or dispute.

However, in circumstances where a client contacts a second practitioner to obtain a second opinion, there is also the potential for the second practitioner to offend this Rule. The general law recognises the need to protect the relationship of trust between a solicitor and a client, and it would be inconsistent with that protection for the second opinion to extend to disparagement of the first solicitor or an attempt to undermine the existing professional relationship.

A client is a party in a Family Law matter and wants their solicitor to assert that the opposing solicitor should cease acting because of a conflict of interests. The first solicitor is aware that the main reason that the client wishes the other solicitor to have to withdraw is that he is a good friend of the opponent and is apparently charging costs at a reduced rate. The first solicitor’s client wants the opponent to be put to significant expense. Is it appropriate for the first solicitor to assert a conflict?

Yes, provided that the solicitor is satisfied that there is a genuinely arguable conflict of interests and lack of independence. If so, the fact that there might also be a tactical advantage to the client does not prevent the argument being made. However, consideration should be given to the provisions of Rule 21, which require a solicitor to take care to ensure that the court’s coercive powers are invoked only on a basis reasonably justified by the available material and not principally to gain some collateral advantage. Rule 32 also prohibits a solicitor from making an allegation of unsatisfactory professional conduct or professional misconduct against another practitioner without a proper basis.

A client is selling property at auction. The contract for sale of land which the solicitor drew has been duly displayed in the auctioneer’s office. The client has asked the solicitor at the last minute before the auction to include a clause requiring the purchaser to pay the land tax adjustment. Should the solicitor attempt to obtain instructions from their client to ensure that the auctioneer draws the amendment to the attention of prospective purchasers?

Yes. It may be misleading, and a misrepresentation, for the amendment not to be notified. A solicitor’s fundamental duty as a solicitor is to the court and the administration of justice (Rule 3) and the obligation to the client is to follow lawful, proper and competent instructions (Rule 8).

In Xu v Council of the Law Society of NSW [2009] NSWCA 430, Handley AJA (with whom Tobias JA agreed) expressed the view that it is possible for a solicitor to enforce a lien over a passport, provided it has been obtained for a legitimate forensic purpose, and as long as it was merely as against the client and not against the Commonwealth (at [54] and [56]). His Honour went on to note, however, that a court may decline to enforce such a lien “… if its exercise would deprive an impecunious client of his liberty. In such a case the Court might, for example, order the solicitor to deliver the passport to the Court that would be considering the clients’ bail application subject to his lien.” (at [57]).

Whilst the above appears to represent the balance of authority, those views are subject to considerable uncertainty. Basten JA in the same case said (at [20]) that it should not "…be assumed that the solicitor's lien necessarily extends to permit retention of a passport, obtained from a client for a specific purpose. Indeed, although Handley AJA appears to have expressed a somewhat different view to Basten JA in the very same matter, he appeared to at least partially endorse Basten JA’s analysis (see [57]). Moreover, in Commissioner of Taxation v American Express Wholesale Currency Services Pty Limited [2010] FCAFC 122 at [44], Dowsett J (who was himself in the minority) doubted the correctness of the decision in Xu, by reference to the High Court case of Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [17], and the English case of The Odessa [1916] 1 AC 145 at 158-9.

Accordingly, solicitors should be cautious before choosing to assert a lien over any passport, including an Australian passport, and should not do so unless the passport was obtained for a legitimate forensic purpose.

Solicitors should also be aware of s32 of the Australian Passports Act 2005 and s21 of the Foreign Passports (Law Enforcement and Security) Act 2005 regarding offences of possession or control of another person’s travel documents.

• The new solicitor should first discuss the matter with the old solicitor.
• If the tripartite agreement is available, the new solicitor should make no alternative attempts to obtain the file unless the old solicitor refuses to enter into the agreement. The Committee notes that it may not be available where, for instance, the new solicitor is prohibited by law to enter into the agreement, e.g. Legal Aid Commission, or it does not provide reasonable security.
• Disbursements should generally be reimbursed to the old solicitor irrespective of the payment of legal fees.
  The Committee notes that this is covered by the tripartite agreement.
• It is not appropriate to subpoena the file of the old solicitor to circumvent a lien.
• A solicitor should not attempt to undermine the valid lien of another solicitor in any circumstance.
• If the old solicitor refuses to enter into a tripartite agreement when it is available, the new solicitor may seek documents from an insurer, prosecutor or the court when that action is in the client’s best interests.

• Find a suitable time and space to check in with the person. This is likely to be a quiet and private place which is also free from distractions. In a supportive and non-confrontational way, ask the person how they are. Listen more than talk. Try to avoid interrupting with stories of your own, jumping in with solutions or minimising the person’s problems. Be understanding of the person’s unique circumstances and set aside your judgments about the person or their situation.

• Offer support and information. Support can be emotional support and/or practical support. Ask if they are ready to consider help and provide them with information on services such as the Solicitor Outreach Service (for NSW solicitors), Lifeline, Beyond Blue and/or encourage them to see their GP. The Law Society has further information on how and where to access help here.

• Despite your best efforts, understand that the person may not want to talk with you right now and may not be ready to access help.

• Check in with the person in a few days’ time and see how they are doing.

• In an emergency, for example, if you hold fears that the person may harm themselves or someone else, call 000 immediately.

See these resources to continue building skills in this area:

• Black Dog Institute – Workplace mental health toolkit
• Heads Up – Helping a workmate
• Head to Health – Supporting co-workers

There is no professional obligation to report concerns about a colleague’s mental health to the regulator, subject to the overriding duty to the administration of justice under Conduct Rule 3.

In dealing with file transfers, always remember the duty of courtesy, and act fairly and promptly. This is the duty of a professional. Also, if you are the transferee, always keep the transferor regularly updated, with your client’s consent.

Conduct Rule 14 requires you to provide the file unless there is a valid lien (Conduct Rule 15). Consider the following:

1.    Wentworth v de Montfort (1988) 15 NSWLR 348 and subsequent cases including Alexiou v Alexandra White & Ors t/as HWL Ebsworth Lawyers [2021] NSWSC 485 provide useful guidance on which parts of the file belong to the client and which to you. You can choose whether to include your part of the file or not.

2.    You should always keep a full copy of the file (at your expense). It is prudent to paginate the file to avoid disputes over missing pages.

3.    You may find the tripartite deed useful to secure your fees rather than exercising a lien https://www.lawsociety.com.au/practising-law-in-NSW/ethics-and-compliance/costs/tripartite-deeds 

4.    Ensure that the authority is valid. If you have concerns about the capacity of the client, it is worth remembering that the new solicitor has had to do their own capacity assessment. They must not send an authority if they do not hold competent instructions. Note also your obligations of confidentiality under Rule 9 regarding what you can say about the client, including to the new solicitor.

5.    Other legislation may apply. For instance, there may also be Privacy Act (1988) (Cth) considerations. Also, if you work for an agency that is subject to the Government Information (Public Access) Act (2009) (NSW), then your files are government information and are covered by that act.  This means you may be required to hand over documents that you would not be required to hand over if you were a solicitor in private practice.

6.    You must deal with the request promptly, particularly if there is an upcoming hearing. This includes where you have carriage of legally aided matters.

7.    Where there is a new solicitor involved, you should only communicate with the solicitor and not the client (see generally Conduct Rule 33). You might ask for the new solicitor’s consent to communicate with the client, but it would be inappropriate to use that opportunity to denigrate the new solicitor in any way or try to win back the client (see generally Conduct Rule 34.2).

8.    Conduct Rule 16 only allows charging for storage and retrieval costs and then only if the client has agreed.

The capacity to instruct underpins all solicitor-client relationships. A solicitor must not act if they are not reasonably satisfied that the client has the mental capacity to give instructions (see Goddard Elliot (a firm) v. Fritsch [2012] VSC 87). The Law Society has issued detailed guidelines on how to manage such situations.

The guidelines can be viewed here.

1. Conduct Rule 14 and the client’s right to their file
2. Conduct Rule 9 and the confidentiality of information about the client’s capacity
3. The need for capacity for the particular instructions – here the authority for file transfer
4. The limitation of the solicitor’s role to protecting the confidentiality of a former client’s information
5. The Law Society guidelines on capacity
6. Making applications to NCAT

With rare exceptions, a solicitor owes a fiduciary obligation to the client. The solicitor is under an obligation not to promote the solicitor’s "personal interests by making or pursuing a gain in circumstances in which there is 'a conflict or a real or substantial possibility of a conflict' between personal interests of the solicitor and those to whom the duty is owed, unless the client gives informed consent to the solicitor's actions"¹. The requirements for informed consent will depend on the circumstances of each case but the following are usually important ingredients:

21.1 client must have the appropriate knowledge

The client must have "knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of others"².

21.2 complete information must be provided

There must be conscientious disclosure of all material circumstances, and everything known to the solicitor relating to the proposed action, which might influence the conduct of the client or anybody from whom he might seek advice³.

21.3 the information must be provided to the client

For a fiduciary to avoid liability, it must "make full disclosure to the person to whom the duty is owed"⁴.

21.4 some persons can’t give consent

Informed consent must be given by the persons adversely affected by the breach of fiduciary duty, but must be given by all those persons and all must be sui juris.⁵

21.5 there is no need to state the obvious

Disclosure of a conflict is not required where the nature of the solicitor’s interests is "apparent on the face of the transaction", "obvious" or "mutually understood and accepted"⁶. However, it is recommended that the solicitor err on the side of caution and provide more information than strictly necessary rather than less.

21.6 the onus of establishing informed consent resides with the solicitor

The onus of proving informed consent lies on the person who is seeking to establish that fact,namely the solicitor⁷.

1.    Rule 14.2 provides that this is subject to an effective lien.

2.    As to this issue, also see the question: A solicitor has been approached by a party who has a solicitor acting in a matter but who wishes to obtain advice about whether or not that solicitor's advice should be followed, that is, to give a second opinion  (under PROFESSIONAL RAPPORT, TACTICS AND COMMUNICATIONS WITH COLLEAGUES).

3.    Law Society of NSW v Harvey [1976] 2 NSWLR 154, 170F – 171B; O’Reilly v Law Society of NSW[1988] NSWLR 204, 208G; GE Dal Pont, Lawyers’ Professional Responsibility, 5ed, 2013, [6.25].

4.    Walker v D'Alessandro [2010] VSC 15 at [27] – [28] citing Meagher Gummow and Lehane, Equity Doctrines and Remedies, 4th edition, [5-115] p 179.

5.    Saffron v Cowley; estate of Saffron [2012] NSWSC 1108.

6.    Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 212B. This comment was made in the context of a director’s obligation of disclosure. Although both fiduciaries, a director’s obligation may be different to a solicitor’s obligation. See, for instance, the lesser requirement of full disclosure in Buttonwood Nominees Pty Ltd v Sundowner Minerals NL (1986) 10 ACLR 360, 362. However Woolworths Ltd v Kelly was cited with approval in the solicitor-client conflict decision of David Alan Thomson v Golden Destiny Investments Pty Limited [2015] NSWSC 1176, [86].

7.    See Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, 398 (Isaacs J) cited with approval in David Alan Thomson v Golden Destiny Investments Pty Limited [2015] NSWSC 1176, [85].

GE Dal Pont, in Lawyers’ Professional Responsibility, 5ed, 2013, explains the rationale and requirements for independent advice:

"..a lawyer in making the...disclosure [required for informed consent] lacks distance from the conflict, which may dictate that even with the best intentions the disclosure may not properly avoid bias. Also, lay clients may place trust in the superior legal knowledge of their lawyer, and may be willing to accept the lawyer’s assurances simply because it is the lawyer who has given them. A prudent lawyer will, therefore, insist that the client receive independent legal advice on the matter if there is any inclination to continue the representation. Such advice serves to reduce the scope of the lawyer’s own influence in a client's decision to continue conflicted representation, and has the benefit of being supplied by a person with no conflicting interest in the matter."¹

It has been said that "no hard and fast rule has been laid to establish the requisite content, scope and effect of the independent advice"². However guidance can be obtained from the High Court's comment that independent advice "must be that of some independent person who is not connected with the donee in business or in any other confidential way and he has a knowledge of all the material facts and he, in fact, advises the donor on all matters which might affect his consideration in determining whether to make a gift."³

1.    At [6.30].

2.     White v Willis [2014] NSWSC 1160, [99].

3.   Jenyns v Public Curator QLD [1953] HCA 2; (1953) 90 CLR 113 Dixon CJ, McTiernan and Kitto JJ at 131.