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Duty, of solicitor to former client

Cooper v Winter [2012] NSWSC 161. Adamson J.

  1. The question of whether a retainer arises is to be judged on an objective assessment of the state of affairs between the parties: Hendriks v McGeoch [2008] NSWCA 53 per Giles JA at [11], with whom Spigelman CJ agreed. 
  1. Once a retainer (to undertake a particular task) ends, there is no continuing duty of care, nor fiduciary duty. The only duty a solicitor owes a former client subsequent to the ending of a retainer is one of confidentiality. There is neither a continuing duty of care nor fiduciary duty: Kallinicos v Hunt [2005] NSWSC 118164 NSWLR 561 at 582-583.

 

 

 

 

 

 

 

Kallinicos v Hunt [2005] NSWSC 1181. Brereton J.

76 The foregoing authorities establish the following:-


· During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri].

· Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri].

· After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer [Prince JefriBelan v CaseyPhotocureBritish American TobaccoAsia Pacific Telecommunications; contra SpincodeMcVeigh;Sent].

· However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v TaylorGrimwade v MeagherNewman v Phillips FoxMitchell v Pattern HoldingsSpincodeHolborowWilliamson v NilantBowen v StottLaw Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.

· The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v OntarioBlack v TaylorGrimwade v MeagherHolborow; Bowen v StottAsia Pacific Telecommunications].

· The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott]. 

· Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott].

· The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott].

 

 

 

 

 

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