Professional Responsibility

In historic institutional child abuse claims, we are continuing to see requests by some defendants for plaintiff’s solicitors to provide an independent solicitor certificate on settlement of the plaintiff’s claim. The certificates typically contain statements to the effect that the solicitor acting for the plaintiff has explained to the plaintiff the purport and effect of the settlement deed, the plaintiff appeared to have understood that advice, and that the deed was signed voluntarily.

There are many reasons why a lawyer should decide to end a retainer. Knowing when to part ways with a client and how to do it, is an important part of your risk management toolkit.

Text messages and instant messaging applications such as WhatsApp and WeChat are used by some practitioners to communicate with their clients. While messaging can be a convenient and efficient communication tool, its use gives rise to a number of challenges and risks for law firms including record retention, data security and confidentiality.

Law firms using text messages and messaging apps need to be alert to and manage these risks by implementing clear processes and procedures governing how, when and in what circumstances they are to be used and how messages are to be preserved and retained.

From time-to-time LPLC is contacted by practitioners who are contemplating dabbling in interstate work. Taking on work in a new jurisdiction which is outside your usual area of expertise and experience, or which you don’t practice in regularly is high risk and may lead to a professional negligence claim.

The popularity of the use of generative Artificial Intelligence (AI) platforms has surged among lawyers in recent years. The potential of AI to aid in legal research, draft legal documents, provide instant access to information, and offer significant efficiencies is appealing for legal practitioners, however there are risks and limitations which need to be kept front of mind.

It can be easy for parties in dispute to overlook limitation periods while settlement discussions are happening. This article covers some simple risk management measures parties can take to prevent their claim from being time barred and the practitioner also being faced with a professional negligence claim.

Developing new ways to provide legal services to accommodate the needs of clients is increasing in this current environment but it brings with it challenges as lawyers need to define whether they are acting as independent lawyer or inhouse counsel and how that affects their insurance cover.

Buckling under pressure when it comes to professional conduct and complying with the rules can have long lasting and devastating effects. A VCAT decision in late 2021 found a practitioner, who did just that, guilty of unsatisfactory professional conduct. This case is a salutary reminder for all practitioners to step back and consider the consequences before they feel pressured into doing the wrong thing.

This article covers the top four potential conflict scenarios we see when practitioners act for multiple parties and their consequences.

Managing the receipt and payment of trust money is not a simple administrative task and needs careful attention by practitioners to avoid claims.

The preparation of thorough file notes is a core part of prudent legal practice and something practitioners should aim to fine-tune. The importance of a detailed file note cannot be overstated, both as evidence should a negligence claim ever arise, as much as for matter management, continuity and reference.

The announcement by Land Use Victoria that all land transactions will be conducted electronic by July 2019 is a timely reminder that practitioners need to implement a process to either destroy any paper titles or make them invalid in accordance with clause 6 of schedule 3 to the ARNECC Model Participation Rules.

*The ARNECC Model Participation Rules, Operating Requirements and corresponding Guidance Notes may have been updated since this article was published. Please refer to their most recent versions via the links provided at the bottom of this page.

There are several considerations that go into deciding what makes a ‘right client’. Thinking about this at the beginning and making sure it is communicated openly, can save you a headache later.

In the current financial environment requests for practitioners to advise on loans and guarantees, particularly from second and third tier lenders, appear to be increasing. Providing solicitors’ certificates in these matters is risky at the best of times, but where there is uncertainty about future financial and property market stability and clients under severe financial stress, extreme care needs to be taken.

The COVID-19 pandemic has caused major disruptions to our usual approach to both work and life. The stress of juggling commitments and adapting to new working arrangements means added risk as we find ourselves more distracted than usual. Although these distractions may be unavoidable during a pandemic, there are a few critical issues to keep in mind that will help you to work safely.

Does your firm have effective policies for maintaining the security of digital certificates? Are digital certificates being shared within your firm? Below are some of the risks and consequences and what you should do about it.

Have you been asked to provide a statement as to the circumstances surrounding the preparation and execution of a will and to also provide copies of the will file? Did the request refer to Larke v Nugus? This article covers some key issues you should consider.

LPLC has previously warned practitioners about bad cheque scams, also known as advance fee scams. These appear to still be alive and well.

Providing a solicitor’s certificate for a borrower or guarantor is risky. It is essential to treat it as providing professional advice and not just witnessing documents.

LPLC regularly receives calls from practitioners seeking guidance about a potential conflict when acting for both the vendor and purchaser of real estate.

Principals need to be proactive in supervising all employees, including experienced lawyers and clerks, to ensure the firm’s policies and procedures are followed and matters are progressed in a timely manner.

Sometimes claims arise where a practitioner acts for both the vendor and purchaser in a conveyancing transaction.

You should always be aware of the risks when a matter moves into unfamiliar territory beyond your expertise. This often happens where the matter starts within a practitioner’s normal area of practice but subsequently takes a turn into another area. Sometimes the practitioner thinks ‘it can’t be that different’ from the area familiar to them.

Tactics are an essential part of mediations as practitioners seek to reach an outcome favourable to their clients. However, there are legal and ethical limits to how far practitioners can go in settlement negotiations. Practitioners in mediations should be mindful of the provisions of Part 2.3 of the Civil Procedure Act 2010 (Vic) and section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cwlth), known as The Australian Consumer Law.

With the introduction of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 practitioners should no longer provide certificates of advice for borrowers and guarantors to lenders other than those referred to in rule 11.

When a person loses capacity it is usually a lot simpler to deal with any financial and legal decisions where that person has appointed an attorney via an enduring power of attorney (financial). This is part of the advice often given by practitioners to clients. It is not clear how many practitioners have taken their own advice.

The following article contains a case-study discussion of what constitutes an undertaking.