Almost every business will hand a problem to a lawyer at some point. It might be a contract dispute, an employment matter, buying or selling a business, defending a regulatory complaint, or a partnership falling apart. In each case you do the same thing: you hand over information you would not show anyone else. Financial records, internal emails, the weaknesses in your own position. The law treats that exchange as serious, and it responds by loading the lawyer with duties that run for as long as the relationship lasts and, in some cases, well beyond it.
Those duties exist no matter how big the firm, how junior the solicitor, or how small the matter. Understanding them matters twice over. It tells you what good service should look like, and it tells you when you have grounds to push back, complain, or recover compensation.
Where a lawyer's duties come from
A lawyer's obligations are not a single list from one statute. They build up from four layers:
- The retainer: hiring a lawyer is a contract. The retainer sets the scope of work and the fees, and it carries an implied promise that the work will be done with reasonable care and skill.
- Fiduciary obligations: a lawyer is a fiduciary. That means a duty of loyalty: to act in your best interests, to avoid conflicts, and not to make a secret profit from the position. The High Court confirmed the strictness of these obligations in Maguire v Makaronis [1997] HCA 23, where a solicitor who lent money to clients while acting for them in the purchase of the property had breached his fiduciary duty.
- Statute and conduct rules: in New South Wales, Victoria and Western Australia, solicitors are regulated under the Legal Profession Uniform Law, which carries the Australian Solicitors' Conduct Rules as the conduct rules. Other states run their own legal profession legislation, but the same Conduct Rules apply to solicitors in every state and territory. A breach of the rules can amount to unsatisfactory professional conduct or professional misconduct, which is dealt with by the local regulator, such as the Office of the Legal Services Commissioner in New South Wales or the Legal Services Board and Commissioner in Victoria.
- The general law: if a lawyer's carelessness causes you loss, you can sue in negligence. If a lawyer breaches a fiduciary duty, equitable remedies are available.
The practical duties that matter to you sit mostly in the Conduct Rules, so it is worth knowing what the rules actually require.
Following your instructions
Rule 8.1 of the Conduct Rules requires a solicitor to follow a client's lawful, proper and competent instructions. In practice this means you call the shots. You decide the outcome you want, whether that is settling a dispute, defending a claim, or walking away from a deal. The lawyer's job is to work out how to get there and to tell you honestly what the options are worth.
The duty has real limits, and the limits are worth knowing before you test them. A lawyer cannot carry out an instruction that is unlawful, and a lawyer cannot help you mislead anyone, least of all a court. Solicitors must exercise independent judgment rather than act as a mere mouthpiece, and their duty to the court and the administration of justice is paramount, prevailing over every other duty where they conflict. If you instruct a lawyer to do something improper, the lawyer may decline and, in serious cases, end the retainer.
A practical example: you are defending a debt claim and instruct your lawyer to simply not respond to the court documents. Your lawyer can explain the consequences, but cannot help you bury the case or conceal assets. The decision not to respond is yours; the warning about default judgment is the lawyer doing their job.
One point flows back to you. Advice is only as good as the information behind it, and the Conduct Rules assume you will be honest. If you withhold facts or dress them up, the advice will be wrong and the consequences will land on you, not the lawyer.
Keeping your information confidential
Rule 9.1 says a solicitor must not disclose information that is confidential to a client and acquired during the engagement, to anyone outside the practice. The exceptions are narrow: you authorise the disclosure, the law compels it, the solicitor needs advice on their own legal or ethical obligations, disclosure is needed to avoid the probable commission of a serious criminal offence, to prevent imminent serious physical harm, or to notify a professional indemnity insurer. So the simple version is right: your lawyer generally cannot discuss your matter with anyone, including police or the other side, without your say-so.
Privilege adds a further layer
On top of the conduct rule sits client legal privilege. It protects confidential communications between you and your lawyer made for the dominant purpose of obtaining or giving legal advice, or for use in actual or anticipated litigation. It is recognised in ss 118-119 of the Evidence Act 1995 (Cth) and the equivalent state legislation, and the dominant purpose test comes from the High Court's decision in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.
Two practical points. First, privilege belongs to you, not the lawyer. Only you can waive it, and it survives the end of the engagement. Second, privilege is not a blanket over everything. A document that would have existed anyway, such as an ordinary board minute or an accountant's report prepared outside the litigation, does not become protected simply because a lawyer later sees it. If you want something protected, it should be created for the purpose of getting legal advice.
Avoiding conflicts of interest
The duty of loyalty means a lawyer cannot serve two masters whose interests clash. The Conduct Rules deal with this in three settings. A solicitor must avoid conflicts between duties owed to current and former clients. A solicitor cannot act for a new client using confidential information from a former client if the information is material to the new matter and would hurt the former client, unless the former client consents or an effective information barrier is in place. And a solicitor must not act for two current clients with adverse interests in the same or related matters unless each client knows about the arrangement and gives informed consent. If an actual conflict erupts mid-matter, the firm can only keep acting for one of the clients.
The rules also catch the solicitor's own interests. A solicitor must not borrow money from a client except in limited circumstances, such as where the client is a bank, and must not arrange a benefit for themselves beyond fair fees.
If a conflict exists, the lawyer must tell you, and usually must stop acting. Breach is serious: in Maguire v Makaronis the High Court held that a fiduciary breach of this kind exposes the solicitor to equitable remedies, not just a complaint. Before you sign up, it is reasonable to ask whether the firm has acted for the other side in the matter or in related matters. If a firm you have used before suddenly appears for the other party, that is a conflict question worth raising at once.
Keeping you informed, including about costs
Rule 7.1 requires a solicitor to provide clear and timely advice so you can understand the legal issues and make informed choices. That includes telling you about alternatives to fully contested litigation, such as negotiation, mediation or arbitration, where they are reasonably available. In practice, you should be getting updates as the matter progresses and answers to reasonable questions within a sensible time.
Costs are part of the communication duty. Under the Legal Profession Uniform Law, law practices have disclosure obligations to clients, and legal costs must be fair and reasonable. Contingency fees, where the lawyer takes a cut of the outcome, are prohibited. Regulators make the point plainly: get your lawyer's costs in writing. Before work starts you should be told how you will be billed and given an estimate of the total, and if the estimate changes materially, you should hear about it. If a bill arrives and makes no sense, ask for an itemised bill first, then check the firm's internal complaint process, and then the regulator's costs dispute process if it is not resolved.
Acting with skill and care
Rule 4.1.3 requires a solicitor to deliver legal services competently, diligently and as promptly as reasonably possible. The same standard is implied into the retainer and owed in tort. A lawyer who gives negligent advice that causes you loss can be liable in damages, and that exposure is one reason firms carry professional indemnity insurance.
The standard is not perfection. It is the care and skill of a reasonably competent solicitor in the same field. A bad outcome does not prove negligence; a court will look at whether the advice fell below the standard. That said, the duty bites early. It covers whether the lawyer identified the issues, advised on risks, followed your instructions, and kept you informed.
Before you engage someone, asking about experience in your type of matter is a legitimate question, and it is part of what the duty of skill is about: competence starts with taking on work the firm can actually do.
Being honest with you and with the court
A solicitor must be honest and courteous in all dealings in the course of legal practice. That includes honest advice about your prospects. A lawyer who tells you only what you want to hear, and lets you fund a hopeless case on a rosy forecast, is not doing the job the rules describe.
Honesty also runs toward the court. A solicitor must not deceive or knowingly or recklessly mislead a court, must correct any misleading statement they have made, and must tell the court about binding authority against their client's case. This is where the paramount duty to the court becomes real for you. If you are tempted to put your lawyer in a position of advancing something you know is false, expect resistance, and if the lawyer concludes you are misleading the court, they may have to stop acting. The duty that protects the system also protects you from being talked into an approach that destroys your credibility.
When it is too early to worry, and when it is time to act
Most dissatisfaction with lawyers is not a breach of duty at all. It is poor communication, usually about progress or costs, and it is usually fixable. Start in-house: put your concern in writing to the firm, ask for a meeting, and ask for a clear explanation of where the matter stands. You are entitled to your file. Under rule 14, client documents must be given to you or your new lawyer on request, subject to any lien for unpaid costs.
It does not cost anything to check where you stand. Most lawyers, including Artificer Legal, offer a free initial consultation, and a short enquiry is usually enough to tell you whether you have a genuine issue or a misunderstanding.
Escalate when the problem is real: suspected dishonesty, an undisclosed conflict, a refusal to return your money or documents, or loss that flowed from negligent advice. Complaints to the local regulator are free to lodge, and the regulator can investigate, discipline the lawyer and, in some cases, order compensation. There are time limits for making complaints, so do not sit on a serious concern. Where you have suffered financial loss, a civil claim for negligence, breach of fiduciary duty or breach of contract is the route, and the earlier you get advice on prospects, the better, because limitation periods do not wait.
The duty that limits the rest
If there is one thing to remember about a lawyer's duties, it is that the duty to follow your instructions is not the top of the list. The paramount duty to the court and the administration of justice sits above it, and that is why a good lawyer will sometimes tell you no. It is the duty that keeps you from being led into conduct that would sink your case and your credibility.
Everything else is a service promise you can rely on: your instructions are followed, your information stays confidential, your interests are put ahead of the firm's, you are kept informed about the matter and the costs, the work is done competently, and the advice is honest. When one of those promises is broken, you have options, starting with a conversation, moving to a free consultation, and ending, if needed, with a complaint or a claim.
Ask questions early, get the important things in writing, and treat a second opinion as a normal step rather than a betrayal.