ByLawyers News and Updates

Non-disclosure – All states

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Non-disclosure agreements and clauses have been added to all By Lawyers guides. These precedents augment the existing Confidentiality Deed and clauses in the Folder of Blank Deeds, Agreements and Statutory Declarations in Folder A. Getting the matter underway on every By Lawyers matter plan.

In general, non-disclosure is passive and unilateral, whereas confidentiality is active and bipartite. The former generally requires a party simply not to reveal or release confidential information, whereas the latter requires a party to take positive steps to keep information secret and safe.

There are also other distinctions to be drawn when dealing with confidential information. Sometimes only one party is to provide confidential information to the other. In other cases, two or more parties propose to exchange it. Sometimes the parties wish only to protect the contents of their agreement, whereas sometimes they wish to protect other specific information relevant to their decision to enter into the agreement, or relevant to the subject matter of the agreement.

The various By Lawyers deeds and agreements and precedent clauses have been revised and enhanced to encompass these distinctions.

The commentary on Deeds and agreements in the Folder of Blank Deeds, Agreements and Statutory Declarations has also been enhanced to cover these points.

Apart from the precedents available in the Folder of Blank Deeds, Agreements and Statutory Declarations, relevant precedents relating to non-disclosure and confidentiality are also located in various guides as required.

Adding these non-disclosure agreements and clauses, and revising the existing confidentiality deeds and clauses, is part of By Lawyers continual commitment to the expansion and enhancement of our content.

Amended precedents:

Deed for general use

Agreement for general use

Confidentiality deed

Confidentiality clause for defined information – All parties

Confidentiality clause for defined information – One party

New precedents:

Non-disclosure agreements – Informal

Non-disclosure agreement – Formal

Confidentiality clause for terms of agreement – All parties

Confidentiality clause for terms of agreement – One party

New article by Donna Cooper on Wills and POAs – VIC

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By Lawyers is pleased to be able to share with you Donna Cooper’s article, Should you hand over a copy of a will to an attorney under power?, published in the Reference material folder in our Will, Powers and Estates VIC publications.

Donna’s article commences:

Consider the following common ethical dilemma: You have a long standing elderly client whose adult son telephones to say that he’s moving his mother into a nursing home and would like to come in to a collect a copy of her will from your office this afternoon.  You know the adult son and you are aware of the fact that he is the sole attorney under power for his mother as well as the sole executor of her estate.  He tells you that his mother has recently lost capacity and is not capable of managing her affairs.  Should you hand over a copy of the will to him when he arrives this afternoon?

Donna’s article considers:

  • the duty of confidentiality a solicitor owes to the principal;
  • the application of the Powers of Attorney Act 2014 (Vic) to various scenarios;
  • the options available to a solicitor when approached by an attorney seeking access to the principal’s will; and
  • guidance including the 2013 Succession Laws Report from the Victorian Law Reform Commission and Ethics Committee Ruling R4839, published in 2015 by the Law Institute of Victoria’s Ethics Committee.

Donna Cooper is an Ethics Consultant with ethics4lawyers and an Australian legal practitioner. Donna’s very practical and considered article first appeared in the Institute of Legal Executives September-October 2018 journal, The Legal Executive.

Relationship management

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By Guy Dawson, CEO

In ordinary exchanges with fellow humans, respect, common courtesy, and respect for equality are the norms of good relationships. However, the solicitor client relationship, unlike neighbourly relationships, is multi-layered and susceptible to imbalance as clients seek to unload their problems onto their advisors – to put the monkey on their back.

The fundamental basis of the relationship is the retainer. This is essentially a contractual relationship. It is at this starting point that the scope of the work must be agreed and the nature of the relationship established and the monkey on the back notion firmly dispelled.

The solicitor also owes a tortious duty to the client.

And finally a solicitor is regarded as being in a fiduciary relationship with the client.

The Australian Consumer Law, found in Schedule 2 of the Competition and Consumer Act 2010, is generic consumer protection legislation. The Legal Profession Uniform Law and the Rules made pursuant thereto, are specialised consumer protection legislation aimed solely at regulating lawyers and the provision of legal services.

Some interesting incidents of the relationship of interest are:

–     An actual conflict of interest between solicitor and client is in breach of the solicitor’s duty to the client.

–     The duty of confidentiality survives termination of instructions and the death of the client.

–     The solicitor is authorised by the relationship to act on behalf of the client, becoming the agent of the client, but owing to the fiduciary nature of the relationship, the solicitor must exercise that authority strictly in the interests of the client.

–     Any failure to achieve the standard of a reasonably competent solicitor in the performance of the retainer will expose a solicitor to an action for negligence by the client. Specialist Accreditation results in a higher duty of care to clients.

–     A solicitor has a common law possessory lien over a client’s documents until the solicitor’s costs have been paid.

–     Upon termination of the solicitor–client relationship, and payment of costs, the client is entitled to the file.

–     Communications between solicitor and client are privileged if the communication was made for the purposes of giving legal advice, or for use in existing or anticipated legal proceedings. Privilege will rarely arise in relation to conveyancing transactions.

–     The police or other authorised persons – ATO, ASIC, et cetera – may be authorised to search and remove documents from a solicitor’s office.

Despite these special incidents, a good relationship remains founded in respect, courtesy, a sense of equality between client and advisor, and an honest and earnest application of the adviser’s special skills to achieve the outcomes sought by the client.

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