The Junior's Overstated Advice
You are the supervising partner in a mid-sized firm. A second-year solicitor, Amira, has been running a small commercial lease dispute for a client, Bexley Cafes Pty Ltd, for four months. You have had little involvement. On Friday afternoon Amira leaves you a voicemail: 'I think I've messed up. I told the client in writing that we had a strong case on the break clause and that the landlord's notice was invalid. I didn't check the lease's service provisions properly. The landlord's solicitor has now sent the notice and it looks valid. The client has already spent $40,000 on fit-out relying on my advice, and mediation is on Tuesday. I'm going away this weekend and won't have phone reception.' The client has not been told of the error. The firm's insurance policy requires notification of circumstances that may give rise to a claim.
1. What are your immediate professional and supervisory obligations on receiving this voicemail?
Read the worked answer
The voicemail discloses a probable error causing significant client loss, an imminent mediation, and an absent responsible solicitor. Several duties are engaged at once.
1. Duty to the client. Bexley has relied on written advice that appears wrong and has incurred $40,000 in fit-out costs. The client must be told promptly and accurately. Delay until after mediation, or allowing the client to settle on a false premise, would compound the harm and may itself be misleading conduct.
2. Supervisory duty. As the supervising partner, you are responsible for the file. You must take control immediately: read the file, the lease, the notice, and Amira's written advice. You cannot wait for Amira to return.
3. Notification to insurer. The policy requires notification of circumstances that may give rise to a claim. You should notify promptly and in accordance with the policy, without admitting liability to the client.
4. Conflict between firm and client. The firm's interest in limiting its exposure may conflict with the client's interest in full advice. The client should be advised to obtain independent legal advice about the error and about any claim against the firm.
5. Mediation on Tuesday. You must decide whether the mediation can proceed fairly. If the client's position is weaker than advised, the mediation strategy must be reset, and the client must understand the true strength of the case before attending.
6. Amira. Do not blame or scapegoat her. Address the conduct through proper supervision and, if necessary, the firm's internal processes.
2. Draft the substance of what you would say to Bexley Cafes, and explain how you would handle the mediation and Amira's position.
Read the worked answer
Substance of the communication to Bexley (in writing, followed by a call):
- 'We have reviewed the file and the landlord's notice. Our earlier advice that the break clause notice was invalid appears to have been wrong. The lease's service provisions likely validate the notice.'
- 'This means your position is weaker than we advised, and the $40,000 fit-out decision may have been affected by that advice.'
- 'We are sorry. We are notifying our insurer. We recommend you obtain independent legal advice about your options, including any claim against this firm.'
- 'The mediation is on Tuesday. We can attend to protect your interests, but you should decide whether to proceed, adjourn, or attend with independent advice.'
- 'We will not charge for the review of this error.'
Handling the mediation: Do not let Bexley attend believing it has a strong case. Either reset the strategy with candid advice on the weakness, or seek an adjournment so the client can obtain independent advice. Proceeding without correction would be misleading.
Amira's position: She did the right thing by reporting promptly. The response should be proportionate: review her supervision, provide training, and ensure she is not left to manage a matter beyond her experience. Disciplinary action against her is not the priority; the priority is the client. Her absence should be managed, not punished. Record the steps taken and the reasons.