Author

Alan Weiss

23rd March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Lawyers must advise clients of ways of resolving the dispute without starting legal action

In our legal system, the solicitor/client relationship has long been recognised as a fiduciary relationship.

Lawyers must, as early as practicable:

  • (a)advise clients of ways of resolving the dispute without starting legal action
  • (b)advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty
  • (c)subject to it being in the best interests of the client and any child, endeavour to reach a solution by settlement rather than start or continue legal action
  • (d)notify the client if, in the lawyer’s opinion, it is in the client’s best interests to accept a compromise or settlement if, in the lawyer’s opinion, the compromise or settlement is a reasonable one(e)in cases of unexpected delay, explain the delay and whether or not the client may assist to resolve the delay
  • (f)advise clients of the estimated costs of legal action (See rule 19.03; [Parenting] and clause 6.03 of schedule 6)
  • (g)advise clients about the factors that may affect the court in considering costs orders
  • (h)give clients documents prepared by the court (if applicable) about:
  • (i) the legal aid services and dispute resolution services available to them
  • (ii) the legal and social effects and the possible consequences for children of proposed litigation,
  • and
  • (iii) actively discourage clients from making ambit claims or seeking orders that the evidence and established principle, including recent case law, indicates is not reasonably achievable.
  • (2)The court recognises that the pre-action procedures cannot override a lawyer’s duty to his or her client.
  • (3)It is accepted that it is sometimes impossible to comply with a procedure because a client may refuse to take advice, however, a lawyer has a duty as an officer of the court and must not mislead the court.
  • (4)If a client wishes not to disclose a fact or document that is relevant to the case, a lawyer has an obligation to take the appropriate action, that is, to cease to act for the client.

Note:Section12E of the Act requires legal practitioners to give persons considering instituting proceedings documents containing information about non-court based family services and courts processes and services.

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