This article is aimed at those of our clients who are
unfamiliar with the professional and ethical duties that bind
Australian lawyers to their clients, or the benefits and safety
nets available to clients of Australian lawyers. We will cover:
The Australian legal profession is highly regulated. Unlike
many other industries, Australian lawyers:
Currently, each Australian State and Territory has its own
regulatory framework. This article deals with the Victorian
regulations only, though the differences across Australia should
The lawyer-client relationship is a ‘fiduciary relationship’,
where the client places confidence, good faith and trust in the
lawyer, and as a result, the lawyer has enforceable legal
obligations to act in the best interests of the client.
There are numerous aspects of this duty, and the most important
are that a lawyer must:
This rules and many others have their roots in the common law,
and are set out explicitly in the extensive Professional Conduct and
Communications between lawyers and clients are generally
covered by ‘legal professional privilege’. This means that they
cannot be disclosed without the client’s consent, including in
police or other regulatory investigations, and in court.
This is one of the most fundamental rules in the Australian
legal system. The reasoning is that allowing clients to
communicate openly with their lawyers, without fear of
disclosing any of that information to third parties, allows
lawyers to advise clients fully and properly in light of all the
In addition, one of the most important duties owed by a lawyer
is that of confidentiality. Confidential information given by a
client to a lawyer also cannot be disclosed by a lawyer except
in very exceptional circumstances.
In short, you should feel safe telling your lawyer everything
that is relevant to the matter.
Lawyers can operate ‘trust accounts’ to hold clients’ funds for
them. They are often used to:
Lawyers can only deal with a person’s trust money in a way
directed by that person.
Lawyers’ trust accounts are heavily regulated by the Legal
Services Board, with heavy penalties including jail for failing
to comply. They must be audited every year by an independent,
specially qualified accountant. Before opening a trust account,
lawyers must complete a specific trust accounting course, and
obtain a relevant practising certificate.
The Legal Services Board also operates a ‘fidelity fund’, to
compensate members of the public who have lost money or property
that was held in a trust account as a result of a lawyer’s
In short, you should feel very safe about depositing funds into
a lawyer’s trust account.
To be allowed to practice in Victoria, lawyers must be admitted
to practice, and hold a current practising certificate.
Most commonly, lawyers admitted to practice must:
To maintain a practising certificate, lawyers must also:
Conditions may be placed on a practising certificate, such as
the common condition that a relatively junior lawyer can only
engage in supervised legal practice under the supervision of an
To check whether someone is authorised to practise law in
Victoria, search the Legal Services Board online register.
Another fundamental duty of lawyers is to avoid conflicts of
interest with their clients. This means:
There are several ways you can deal with complaints against
For minor disputes, you could consider trying to sort it out
with the lawyer directly, and failing that, approaching the Legal
Services Commissioner to help deal with your complaint.
If you have suffered financial loss as a result of your lawyer,
such as if you were given wrong advice, you can make a claim
against your lawyer for compensation. All lawyers must hold
compulsory insurance with the Legal Practitioner’ Liability
Committee to cover these sorts of claims. The Committee or the
Legal Services Commission can help resolve your issue.
If you have suffered loss of trust funds or property due to the
dishonesty of a lawyer, you can also claim directly from the
Legal Services Board’s fidelity fund.
Kai is an experienced commercial lawyer, being a former senior
associate in the Competition and Consumer law team at the top
tier international law firm Allens
Call us on +61
3 9041 7733 if you would like to find out more.
Kai Legal publications provide general information, and are not
legal advice. These are not complete summaries of the law, and
only touch on select points and scenarios that may be relevant
to our readers.
This fact sheet is current as of 17 March 2015.
© Kai Legal 2015
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