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Duty, of solicitor

Constantinidis v Kehagiadis [2011] NSWSC 974. Davies J.

13 The basis for a solicitor's duty of care is not the Legal Profession Act 2004 or the Solicitors' Rules. The duty exists as a result of the relationship and, in most cases, by reason of the retainer between the solicitor and the client. Generally speaking, breaches of the Act and Rules do not give rise to a cause of action by the client against the solicitor and, where matters of professional conduct and/or costs are concerned, will not ordinarily inform a breach of the retainer or the duty of care owed by the solicitor.

Hamze v Bradstreet [2008] NSWCA 191. Handley AJA, Hodgson & Ipp JJA concurring.

The solicitor did not advise of common law rights before the Carr amendments of 2001.

Handley AJA noted without demur Rein DCJ finding the solicitor was dutibound to have advised on thresholds and elections, quantum prospects and risks.

The solicitor should have contacted his client before the November 2001 restraints.

"Thus the worker established that the solicitor had breached his duty of care in June and November 2001. The remaining questions were whether these breaches of duty caused, or materially contributed to, the loss of the worker's common law rights on 27 November, and the value of the lost rights.

"The question of causation turns on the worker's probable reaction to the advice the judge found should have been given to him, and whether he had established on the civil onus that had he been given that advice on either date he would have decided to commence common law proceedings," Handley AJA said [19].

Keesing v Adams [2010] NSWSC 336. Brereton J.

36 Although, in some respects, a solicitor is an agent for his or her client, and although the cases to which I have referred show that a solicitor has authority to retain a barrister, that authority does not extend to making a contract on behalf of the client with the barrister.

Centuries of practice dictate that the solicitor is treated as the party to whom the barrister ordinarily looks for his or her fees and is primarily liable for that fee, even only if in honour and not at law.

In the absence of what Gillard J described as evidence to the contrary, an informed observer knowing of the historical practices of barristers and solicitors would ordinarily conclude from the delivery of a brief by a solicitor to a barrister, in a case that is not a direct access case, that any contract was made with the solicitor. ...

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