May it please the Court, my name is Thompson, T-H-O-M-PS-O-N, initial L. My task today is to speak with Your Honour
about the topic of the Lawyer-Client Relationship,
particularly as it pertains to the matter of Joe v (and) Petra,
and Dan v (and) Petra respectively.
Your Honour, in the matter of Joe and Petra, Petra, a New
South Wales Barrister was approached by Joe seeking legal
representation. In accordance with the facts, the barrister
Petra was concerned about the mental stability of Joe and,
without reference to her concern, declined the brief
presented to her by Joe for representation.
As such, in accordance with the facts, a complaint was
brought by Joe to the NSW Bar Association, who are
prosecuting this complaint in this court.
Your Honour, I submit that in the matter of Joe and Petra, I
would like to begin by referring to the Legal Profession Act
2004 as it pertains to rules surrounding Barristers, before
discussing the NSW Barristers’ Rules 2011 as well as some
relevant case law to validate my arguments in this case.
Your Honour, I submit to first discuss the Cab-Rank principle
outlined in the NSW Barristers Rules 2011.
First, I submit that under section 81 of the NSW legislation
entitled the Legal Profession Act 2004, it is a statutory
requirement that practicing Barristers in NSW are subject to
the NSW Barristers’ Rules 2011 and are not subject to any
other rules of the Bar Association or Bar Council.
Rule 21 of the NSW Barristers’ Rules 2011 requires all NSW
Barristers to accept briefs from solicitor’s to appear in court
on the provision that the brief is within the skill and capacity
of the Barrister being briefed, the Barrister is available to
work without conflict with another professional or personal
engagement, the offered fee is acceptable to the barrister
and the barrister is not restricted from accepting the brief in
accordance with Rules 95, 97, 98 or 99.
The notion of the cab-rank principle, and a lawyer’s legal
obligation to accept a brief is one corroborated and outlined
in the case of Rondel v Worsley [1969] 1 AC 191 by Lord
Upjohn, and the case of Giannarelli v Wraith (1988) 165 CLR
543 when Justice Brennan stated “…it is unacceptable that
the privileges of legal representation should be available
only according to the predilections of counsel or only on the
payment of extravagant fees…” – at 580.
Furthermore, Lord Hobhouse has spoken of the cab-rank
principal in the case of Arthur JS Hall & Co v Simons, calling it
a “fundamental and essential part of a liberal legal system” –
at 739
In the same case of Hall v Simons, Lord Hoffmann states “It is a
valuable professional ethic of the English bar that a barrister
may not refuse to act for a client on the ground that he
disapproves of him or his case…”
In the present case of Joe and Petra, it can be seen that, as
expressly stated in Rule 21 of the NSW Barristers’ Rules
2011, Joe would need to be represented by a solicitor in
order for the cab-rank principle, and thus Rule 21 to apply.
Upon the facts of the case, it appears that Joe is a lay client,
providing a direct brief to Petra as a NSW Barrister, not
through a solicitor. As such, I submit to the court that Rule
21 and the cab-rank principle do not apply to Joe.
Your Honour, I submit that the exceptions to the Cab-Rank
principle outlined in Rules 21-24 are dictated by Rules 95 –
99, which stipulate circumstances under which a NSW
Barrister must or may decline a brief. Rule 95 outlines
situations where a NSW Barrister MUST decline a brief.
Your Honour, I submit that Rule 95 is irrelevant to the crux
of the present case, and as such in the interest of saving time
I have omitted the specifics of the Rule, however I have them
available to discuss at your leisure if it pleases you.
Your Honour, I submit that in the present case, one of the
most significant exceptions under which a NSW Barrister
MAY decline a brief is stipulated in Rule 99(a) of the NSW
Barristers’ Rules 2011, in which it is explicitly stated that a
Barrister may refuse or return a brief to appear before a
court if the brief is not offered by a solicitor.
In corroboration of Rule 99, I turn Your Honour’s attention
to Rule 24A and Rule 24B of the NSW Barristers’ Rules 2011.
Your Honour, I submit that Rule 24A states that ‘Nothing in
these Rules shall be taken to oblige a barrister to accept
instructions directly from a person who is not a solicitor
Rule 24B states that ‘A barrister who proposes to accept
instructions directly from a person who is not a solicitor
must:
a) Inform the prospective client in writing of:
i)
The effect of Rules 15 and 17
ii)
The fact that circumstances may require the
client to retain an instructing solicitor at short
notice
iii)
Any other disadvantage which the barrister
reasonably believes may be suffered by the
client if the client does not retain an instructing
solicitor
iv)
The relative capacity of the barrister in
performing barristers’ work to supply the
requested facilities or services to the client
compared to the capacity of the barrister
together with an instructing solicitor to supply
them; and
v)
A fair description of the advocacy experience of
the barrister; and
(b) Obtain a written acknowledgement, signed by the
prospective client that he or she has been informed of
the matters in (a).
Your honour, on the basis of Rules 99(a), 24A and Rule 24B
of the NSW Barristers’ Rules 2011, I submit to the court
Petra is not in breach of the Barrister’s rules by declining a
brief from Joe on the basis of his mental stability. I submit
this because on the basis of the current facts, he is a lay
client coming without representation by a solicitor and
therefore in accordance with Rule 24A, and in the absence of
written agreement and consent to the terms outlined in (a)
and (b) of Rule 24B, the cab-rank principle laid out in the
NSW Barristers’ Rules 2011 does not apply.
Your Honour, I submit that Petra had no obligation to
represent Joe, and as such the NSW Bar Association’s
prosecution should be dismissed.
Your Honour I now submit to turn to the matter of Dan and
Petra. In this matter, Petra interviewed Dan, where the facts
state a Draft costs agreement was drawn up. Petra, however
failed to attend a call-over on his behalf, which Petra, by way
of explanation, has said that Dan only asked her about the
‘possibility of legal representation’, but that she had not
been properly instructed before Dan sought advice from
Petra’s colleague at another set of Chambers. Dan submits
that this was in relation to another legal matter, not the
current one and as such has complained to the NSW Bar
Association that Petra has breached her contract with him.
I submit that the issue faced by the courts in this matter is
whether or not a lawyer-client contract was entered into by
Dan and Petra, on the basis of the draft costs agreement
outlined in the facts, and if such a contract were to exist,
whether Petra was in breach of that contract.
Your Honour I submit to begin by examining the Legal
Profession Act 2004, and will be corroborating my
statements utilising relevant case law to substantiate my
argument.
Your Honour I begin by examining the NSW Legislation
entitled the Legal Profession Act 2004.
Section 322(1)(a) of this Act stipulates that a costs
agreement may be made between a client and a law practice
retained by the client. Section 4 of the Act defines ‘law
practice’ as a licensed Australian Legal Practitioner, which
includes Barristers such as Petra.
Section 322(2) requires said costs agreement to be
evidenced in writing and section 322(3) states that a costs
agreement may consist of a written offer…accepted in
writing or by ‘other conduct’.
Upon the facts, it appears there has been a
miscommunication between Dan and Petra as to Petra’s
duties to Dan. The facts stipulate that a draft costs
agreement had been drawn up, and a copy is retained by
Dan as evidence of the alleged contract between he and
Petra.
Under the aforementioned section 322(1)(a), Dan was
eligible as a client to enter into a costs agreement with Petra
as a licensed Legal Practitioner of NSW. While it is
mentioned to only be a draft, there is a copy of the costs
agreement evidenced in writing as per the requirement
made by section 322(2). To this extent, it appears there is
the existence of a proper costs agreement. However, I turn
the courts attention to the requirement made by section
322(3) that the costs agreement may consist of a written
offer…accepted in writing or by ‘other conduct’. In this case,
the facts seem to suggest that no written acceptance of the
offer of the costs agreement was made by Dan, and so the
court must rely on the conduct of Dan to ascertain whether
his conduct could be legally considered acceptance of the
offer. Dan is said to have sought legal counsel from a
colleague of Petra’s which he alleges was regarding a
different matter to the one at hand. This behaviour may have
been construed by Petra as the seeking of counsel
elsewhere, which she alleges is the reason for her failure to
attend the call-over on Dan’s behalf.
Your Honour, I submit that Dan alleges that the meeting with
Petra’s colleague was pertaining to a separate legal matter to
the present one. This shows that his conduct of attending the
interview with Petra, the drawing up of the draft costs
agreement in writing, and the absence of oral or written
evidence that Dan was seeking any kind of counsel on this
matter elsewhere should imply acceptance of said costs
agreement in accordance with section 322(3) of the Legal
Profession Act 2004.
As per section 322(4) of the act, the costs agreement offer
requires a statement contained in the agreement that (a) it is
an offer to enter into a costs agreement, (b) that the client
may accept in writing or by other conduct and (c) the type of
conduct that will constitute acceptance.
In the present case, facts have not been given as to whether
or not the provisions in section 322(4) were met, and so
further investigation is suggested into this fact. It can be said
that if those terms were within the agreement but were
ambiguous, in accordance with Owners-Strata Plan No
45205, which states that any ambiguity in the terms of the
retainer or contract will be construed against the lawyer.
If it were to be found, however, that the requirements of
section 322(4) were met, then the costs agreement could be
found to satisfy statutory requirements of its existence, and
section 326 would apply, which stipulates that a costs
agreement may be enforced the same way as any other
contract, which was also a finding in the case of Wong v Kelly
which stipulated that a retainer is a legal contract between a
lawyer and client and must be proved like any other
contract.
I submit to the court the matter of Pegrum v Fatharly in
which Justice Anderson, at paragraph 102 provides the
principle that a retainer or legally binding lawyer-client
relationship may be implied from the circumstances of the
case. This principle stated in Pegrum promotes the
submission that Dan sought counsel from Petra and relied
upon her on the basis of the costs agreement offer.
Also along this line, I submit the case of Griffiths v Evans
[1953] 1 WLR 1424 in which Lord Justice Denning (at 1428)
postulated that where an oral or implied retainer is deemed
to have been made between a lawyer and client, and a
dispute arises over the existence of that retainer, “The word
of the client is to be preferred to the word of the solicitor”
and that a lawyer who does not take the precaution of
getting a written retainer “has only himself to thank for
being at variance with his client over it and must take the
consequences.”
Corroborating Lord Justice Denning’s findings was the
judgment of Justice Rougier (at 892-893) in the case of Gray
v Buss Merton (a firm) [1999] PNLR 882 that “…it is the
solicitor’s business to ascertain the client’s wishes
accurately, bearing in mind the possibility that the client,
through ignorance of the correct terminology may not have
correctly expressed it.”
Finally, the case of Caldwell v Treloar lays out the Doctrine of
Entire Contract, which details the requirement of a lawyer
legally retained by contract by a client to fulfill the duties for
which they are retained.
Therefore, I conclude Your Honour, that in accordance with
section 322 subsections (1) and (2) of the Legal Profession
Act 2004 that a legally binding relationship did exist between
Dan and Petra by way of the draft costs agreement.
I submit that in accordance with section 322(3) of the Legal
Profession Act 2004 that Dan, by way of conduct, did accept
the costs agreement offer by Petra, hence creating the
contractual relationship.
Finally, I submit, Your Honour, that by failing to attend the
call-over on behalf of Dan, Petra was in breach of that
contract, and has a duty and obligation to complete the
Doctrine of Entire Contract laid out in Caldwell v Treloar.
Arthur JS Hall & Co (a firm) v Simons [2002] UKHL 38 –
United Kingdom House of Lords
(Arthur J S Hall & Co (a firm) v Simons; Barratt v Ansell and others (trading as
Woolf Seddon (a firm)); Harris v Scholfield Roberts & Hill (a firm) and another)
HOUSE OF LORDS
LORD STEYN, LORD BROWNE-WILKINSON, LORD HOFFMANN, LORD HOPE OF
CRAIGHEAD, LORD HUTTON, LORD HOBHOUSE OF WOODBOROUGH AND LORD
MILLETT
FACTS:

Mr Simons says that his solicitors negligently allowed him to become
involved in lengthy and expensive litigation when they should have
advised him to settle.

Lord Hoffmann states that the solicitors say that even if they were
negligent, they cannot be sued. They claim immunity under a modern
version of an ancient rule of common law, which prevented barristers
from being sued for negligence.

The old rule was that barristers, unlike solicitors, had no contract with
their clients. They could not sue for their fees. And in the absence of a
contract there could be no liability.

Rondel v Worsley saw a ‘new immunity’ set up by the House of Lords: even
without a contract, a person who negligently performed professional or
other duties which he had undertaken could be sued in tort
PROCEDURAL HISTORY:

Decision of the Court of Appeal (Lord Bingham of Cornhill CJ, Morritt and
Waller LJJ) on 14 December 1998 ([1999] 3 WLR 873) allowing an appeal
by the defendant client, Melvyn Keith Simons, from the decision of Judge
Mackay at the Liverpool County Court on 14 October 1997 whereby, on
the determination of a preliminary issue, he struck out Mr Simons'
counterclaim for damages for negligence in an action brought by the
solicitors for the recovery of fees for services rendered in the conduct of
proceedings arising out of a building dispute which had been
compromised on 19 August 1991.
DECISION:

Appeal dismissed

Immunity of barristers was abolished
RELEVANT QUOTES:

The “cab rank” principle has been branded as a “fundamental and
essential part of a liberal legal system” – Lord Hobhouse at 739

About the cab rank rule: “It is a valuable professional ethic of the English bar
that a barrister may not refuse to act for a client on the ground that he
disapproves of him or his case. Every barrister not otherwise engaged is
available for hire by any client willing and able to pay the appropriate fee…It
was said that barristers would be less inclined to honour this professional
obligation if they suspected that the client was the sort of person who would, if
he lost his case, turn on his barrister and sue for negligence.” – Lord
Hoffmann (4)

About the cab rank rule: “This argument is that a barrister, who is obliged
to accept any client, would be unfairly exposed to vexatious actions by
clients whom any sensible lawyer with freedom of action would have
refused to act for. It is, in the nature of things, intuitive, incapable of
empirical verification, and I do not believe it has any real substance.” – Lord
Hoffmann – (17)
HOW IS THIS CASE DISTINGUISHED FROM THE PRESENT?

It must be remembered that Hall v Simons is an English case brought in
the House of Lords.
Ariff

Lawyer’s core responsibility is to assist in the efficient and effective
resolution of disputes.
Bray v Ford I [1896] AC 44 (Appealed case in the HoL)

Lawyer as fiduciaries: Lawyer must shun situations involving a conflict
between the lawyer’s personal interest and the duty to the client
Breen v Williams (1996) 186 CLR 71 (High Court of Australia)

Fiduciary Duties of the lawyer to the client: A duty is fiduciary only if it is
a duty of loyalty
Bridge Products Inc v Quantum Chemical Corporation 1990 WL 70857

Proof of the retainer – A lawyer should make explicit to a prospective
client what duties, if any, the lawyer is assuming
Briscoe

No implied authority to institute proceedings
Caldwell v Treloar (1982) 30 SASR 202 (South Australia Reports)

Termination of lawyer-client relationship – duty to complete work;
Doctrine of Entire Contract
Commissioner of Inland Revenue

Confidentiality – A duty on the lawyer to maintain inviolate clients
confidences
Ford v Financial Services Authority [2012] 1 All ER 1238 (All English Reports)

Parties to the retainer – the importance of identifying the client
Giannarelli v Wraith (1988) 165 CLR 543 at 580 (High Court Australia)

“It is difficult enough to ensure that justice according to the law is
gnenerally available; it is unacceptable that the privileges of legal
representation should be available only according to the predilections of
counsel or only on the payment of extravagant fees…” Justice Brennan at
580.

This is corroborated by Arthur JS Hall & Co v Simons [2002] UKHL 38.
Gray v Buss Merton (a firm) [1999] PNLR 882 (Professional Negligence Law
Reporter)

Disputes in the existence of an oral retainer will be construed in favour of
the client

Justice Rougier (at 892-893) “…it is the solicitor’s business to ascertain
the client’s wishes accurately, bearing in mind the possibility that the
client, through ignorance of the correct terminology may not have
correctly expressed it.”
Griffiths v Evans [1953] 1 WLR 1424 (Weekly Law Reports)

Lord Justice Denning (at 1428) “The word of the client is to be preferred
to the word of the solicitor” and that a lawyer who does not take the
precaution of getting a written retainer “has only himself to thank for
being at variance with his client over it and must take the consequences.”
Groom v Crocker [1939] 1 KB 194 (Kings Bench Division)

Terms of the retainer – Various terms are implied as a matter of law (i.e
lawyer to exercise reasonable care and skill; incidental functions)

Protect and/or foster the clients interests
Harvey v Phillips (1956) 96 CLR 235 (High Court of Australia)

An exception exists where client consents to conflict
Hateley

Lawyers’ ostensible authority - Client “holding out” the lawyer to possess
the authority
IVI Pty Ltd v Baycrown Pty Ltd (2005) Q ConvR 54- 612 (Queensland
Conveyancing cases)

Ostensible authority to act as “medium of communication”
Little v Spreadbury [1910] 2 Kings Bench Division (KB) 658

Implied authority to compromise, unless the client gives clear
instructions restricting that authority
Livesey:

Parties to the retainer – Retainer agreements with counsel (independent
of extraneous influence and have the benefits of object of detachment)
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506

See case note

Enforcement of duties; remedies for breach of duty; breach of duty of
competence

Damages award; need for causation – exercise of pragmatic common
sense.
Moulton

Lawyer must make reasonable efforts to keep up with current
developments in the field of practice
Owners-Strata Plan No 45205 v Andreones Pty Ltd [2009] NSWSC 1189 (NSW
Supreme Court)

Any ambiguity in the terms of the retainer or contract will be construed
against the lawyer.
Petersen v Moloney (1951) 84 CLR 91 (High Court Australia)

Authority of lawyers under the retainer – Authority or capacity in one
person to create legal relations between a person occupying the position
of principal and third parties

Person authorized to affect legal rights and duties as between the
principal and third parties
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 (High Court
Australia)

No general implied authority to contract
Re Cook (1889) 5 TLR 407 (Times Law Reports)

Nature of duties to the client – skill, diligence, competence, honest,
honour, loyalty, trustworthiness and integrity
Re Nelson (1991) 106 ACTR 1 (Aus Capital Territory Law Reports)

Forms of authority – Ostensible (or apparent) authority – eg “held out” by
the principal as authorized to act in a certain position.

Terms of the retainer dictate the scope of the lawyer’s representation
Rondel v Worsley [1969] 1 AC 191 at 281 per Lord Upjohn (Appeal Case in the
House of Lords)

Lawyers who practice solely as barristers are professionally bound to
accept a brief in any court in which they practice, a duty recognised by the
Barristers’ Rules (rule 21) as the “cab-rank” principle.

Lawyers acceptance of work – Barristers are professionally bound to
accept a brief (exceptions apply) in any court in where they practice.
Sargen v ASL Developments Ltd (1974) 131 CLR 634 (High Court Australia)

The lawyer-client relationship is one of agency
Schiliro & Gardens Ridgeway (1995) 19 Fam LR 196
( Family court of Aus)
Implied authority of the lawyer to incur costs and disbursements
Singer v Trustee of the Property of Munro [1981] 3 All ER 215 (All English
Reports)

No general implied authority to receive notices
Simpson

Give clear and timely advice
Thompson v Howley [1977] 1 NZLR 16 (New Zealand Law Reports) at 25 per
Justice Somers:

Lawyers ostensible authority to compromise
Wild v Simpson [1919] 2 KB 544 (Kings Bench)

Termination of lawyer-client relationship – Termination of retainer
without just cause will mean a lawyer forfeits their right to claim for costs
for work done
Wong v Kelly (1999) 154 FLR 200 (Federal Law Reports)

A retainer is a legal contract between a lawyer and client and must be
proved like any other contract.
Williams v Gibbons [1994] 1 NZLR 273 (New Zealand Law Reports)

Implied authority to receive money on a client’s behalf