Instructions and documents
What are instructions?
Your solicitor will act as your agent and, before taking any action, they must have instructions from you. When they give you legal advice, they will probably be suggesting a particular course of action. It is up to you to decide if you want to pursue this action and to instruct the solicitor to proceed.
Your lawyer will probably confirm what was discussed at the first interview in writing and will keep you informed of progress in the matter. If there are any changes in your circumstances (address, work etc), or if any additional information becomes available, it is essential to tell them. They may need to contact you urgently.
Lawyers can sometimes be difficult to contact. They are often in court or attending meetings with other clients. It can be a good idea to ask how available your lawyer is going to be to take phone calls and how often they will give you a progress report. If your lawyer is particularly busy, they may give you the name of someone else in the office who will be able to assist.
Your lawyer is under a duty to follow your instructions in relation to everything under the retainer, although they also have a primary duty to the court. If your lawyer causes serious delay or knowingly acts without your authority they may be guilty of unsatisfactory professional conduct or professional misconduct. Your lawyer cannot let their own judgement override specific instructions, even if they believe it may be in your best interests. However, if the lawyer believes that you have not taken their legal advice into account when giving instructions they may choose to terminate the retainer on the basis that you no longer have confidence in them. The lawyer must inform you if there are any offers of settlement from the other side in the dispute, even if they think the amount is inadequate. The lawyer cannot reject an offer without consultation with you and should confirm acceptance or rejection in writing.
Who owns the documents?
Disputes about ownership of legal documents are common, particularly if a retainer is terminated before the matter is resolved. The situation regarding who owns the documents is not always clear, however, in general terms:
Documents belong to the lawyer:
- when they have been prepared by the lawyer for their own benefit and not charged to you (eg inter-office memos, diary entries); and
- when they have been sent by you to the lawyer, and are intended to be for the lawyer, eg letters.
Documents belong to you:
- (once you have paid) when they have been prepared by the lawyer acting on your behalf, eg instructions and letters prepared by the solicitor or sent to someone else;
- when they have been prepared by someone else during the retainer and sent to the lawyer, other than at the lawyer’s expense.
Under the Legal Profession Uniform Law (NSW), section 472, the Supreme Court can order a solicitor or barrister to give the client a bill of costs and to hand over the client’s documents. This may be on terms providing for payment or the giving of security.
If a solicitor terminates a retainer, they may be obliged to give the documents to the client or the client’s new solicitor for the time being so that they can go on with the action.