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,
- (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.