Duties to Clients: Competence, Care, Loyalty and Confidentiality
The four duties
A solicitor owes the client competence (the knowledge, skill and diligence reasonably expected for the matter), care (attention and diligence in conduct), loyalty (single-minded pursuit of the client's interests, free of conflicting personal or third-party interests), and confidentiality (protection of information imparted in the relationship).
Competence and care in practice
Competence is assessed objectively against the standard of a reasonably competent practitioner in that field. A solicitor who takes on a matter outside their expertise without seeking guidance or referral may breach the duty. Care includes keeping the client informed, complying with time limits, and not allowing a matter to go stale. File management, diary systems and supervision of juniors are all competence issues.
Confidentiality
Confidentiality attaches to all information received in the course of the retainer, whether or not it is in a document marked confidential, and survives termination of the retainer. It is broader than legal professional privilege: privilege is an evidentiary immunity, confidentiality is an ethical obligation. Exceptions include client consent, disclosure required by law, and disclosure necessary to prevent a serious criminal act (jurisdiction-dependent).
Traps
- Confusing privilege with confidentiality: questions often ask about one while describing the other.
- Assuming confidentiality ends when the retainer ends. It does not.
- Overlooking that the duty of loyalty continues after the retainer in the form of the conflict rules.
- Treating a client's instruction as a defence to incompetence: an instruction to cut corners does not relieve the solicitor of the duty of care.
Worked example
A solicitor accepts a conveyancing matter despite never having done one and misses a search deadline. The client says "I told you to hurry." The instruction does not cure the breach; the solicitor should have declined or sought supervision.