|Published||9 December 2017|
You can ordinarily represent yourself in a court or have a lawyer represent you. The general rule is that you cannot be represented by someone who is not a lawyer, but exceptions can be made. Companies and other corporates, however, are not usually allowed to conduct court cases except through lawyers in the High Court and some other courts. See those parts of this text dealing with representation in relation to specific courts and tribunals for more about this.
The legal profession is heavily regulated. This helps to prevent lawyers from abusing the trust that their clients place in them. The Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 set out some of the most important consumer protection rules that relate to lawyers. This from the preface to those rules:
Client care and service information
Whatever legal services your lawyer is providing, he or she must –
– act competently, in a timely way, and in accordance with instructions received and arrangements made:
– protect and promote your interests and act for you free from compromising influences or loyalties:
– discuss with you your objectives and how they should best be achieved:
– provide you with information about the work to be done, who will do it and the way the services will be provided:
– charge you a fee that is fair and reasonable and let you know how and when you will be billed:
– give you clear information and advice:
– protect your privacy and ensure appropriate confidentiality:
– treat you fairly, respectfully, and without discrimination:
– keep you informed about the work being done and advise you when it is completed:
– let you know how to make a complaint and deal with any complaint promptly and fairly.
Regarding disputes, advice on efficient solutions is to be expected because lawyers owe a fundamental obligation to protect the interests of their clients. These may include alternatives to litigation such as negotiation, conciliation, mediation and arbitration. See those parts of CourtKeys.com dealing with alternative dispute resolution for more about those.
Privilege and confidentiality
Communications between lawyers and their clients are confidential and may also be subject to privilege. Chapter 8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides:
A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.
The chapter goes on to provide some exceptions to the duty of confidence but, in general, you would expect that your lawyer would not disclose information you have supplied without your permission.
Communications with your lawyer are also subject to legal professional privilege. That means your lawyer must not pass on information you have supplied or advice given to you without your permission. Like confidentiality, however, privilege can also be subject to some specific exceptions.
The Evidence Act 2006 does not affect the general law governing legal professional privilege, although it does deal with some specific privileges relating to communications with or involving lawyers.
Section 54(1) of the Evidence Act 2006 provides:
A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was –
(a) intended to be confidential; and
(b) made in the course of and for the purpose of –
(i) the person obtaining professional legal services from the legal adviser; or
(ii) the legal adviser giving such services to the person.
Section 56 of the Evidence Act 2006 provides:
(1) Subsection (2)applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the proceeding).
(2) A person (the party) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of –
(a) a communication between the party and any other person:
(b) a communication between the party’s legal adviser and any other person:
(c) information compiled or prepared by the party or the party’s legal adviser:
(d) information compiled or prepared at the request of the party, or the party’s legal adviser, by any other person.
Section 57 of the Evidence Act 2006 provides:
(1) A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication –
(a) was intended to be confidential; and
(b) was made in connection with an attempt to settle or mediate the dispute between the persons.
(2) A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.
Lawyers are often thought to be expensive. A lawyer with a reasonable level of skill and experience in dealing with civil disputes might charge something in the order of $250 to $450 per hour, plus Goods and Services Tax and plus any expenses incurred on behalf of clients.
Legal fees are regulated though, chapter 9 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 provides:
A lawyer must not charge a client more than a fee that is fair and reasonable for the services provided, having regard to the interests of both client and lawyer and having regard also to the factors set out in rule 9.1.
Reasonable fee factors
9.1 The factors to be taken into account in determining the reasonableness of a fee in respect of any service provided by a lawyer to a client include the following:
(a) the time and labour expended:
(b) the skill, specialised knowledge, and responsibility required to perform the services properly:
(c) the importance of the matter to the client and the results achieved:
(d) the urgency and circumstances in which the matter is undertaken and any time limitations imposed, including those imposed by the client:
(e) the degree of risk assumed by the lawyer in undertaking the services, including the amount or value of any property involved:
(f) the complexity of the matter and the difficulty or novelty of the questions involved:
(g) the experience, reputation, and ability of the lawyer:
(h) the possibility that the acceptance of the particular retainer will preclude engagement of the lawyer by other clients:
(i) whether the fee is fixed or conditional (whether in litigation or otherwise):
(j) any quote or estimate of fees given by the lawyer:
(k) any fee agreement (including a conditional fee agreement) entered into between the lawyer and client:
(l) the reasonable costs of running a practice:
(m) the fee customarily charged in the market and locality for similar legal services.
You would have an interest in knowing how much a lawyer might charge you to deal with a particular dispute. Some lawyers might be prepared to agree a fixed fee with you, but there is a real risk that either you or your lawyer would not receive fair value out of such an arrangement. That is because every dispute is different. Battle can be a fluid thing that requires you to react to issues you could not anticipate at the outset. The law might be reasonably well established but the relevant facts might shift or change as the parties interact with one another. Or the facts might be reasonably well established but the legal arguments go off on a tangent because of uncertainty or development of applicable laws.
A typical answer to the question of “how much will my case cost”, if asked at an early stage or before the case is even filed, is “how long is a piece of string”. That is obviously unhelpful because the response is actually another question rather than an answer. It does, however, suggest that every case is different and total costs, calculated on an hourly basis, are difficult if not impossible to estimate early on.
That said, however, lawyers are required to give fee information and advice by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008:
9.4 A lawyer must upon request provide an estimate of fees and inform the client promptly if it becomes apparent that the fee estimate is likely to be exceeded.
9.5 Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters.