Worth Richard: Lawyers and Conveyancers Bill — In Committee 
Worth Richard: Lawyers and Conveyancers Bill — In Committee 
[Volume:629;Page:1502] 
Dr RICHARD WORTH (National) 
: 
 This is resumed debate in Committee of the Lawyers and Conveyancers Bill. It is fair to say it is a bill that certainly in terms of its progress through the House has had a substantially delayed passage. As the Chairman commented but a short moment ago we last looked at the legislation on 30 March 2005 with the start of the Committee stage. It is a substantial bill to some extent because of the way it is drafted in some 11 parts. It effects major change to the legal profession—to the way legal business is done and to issues such as the provision of complaints and disciplinary measures for the legal profession at large. 
I will speak briefly in respect of Part 1 on an issue that is concerned with the fundamental obligations of a lawyer. I pose the question of what those fundamental obligations might be. I suggest that a good starting point is one that has been picked up by the Federation of Law Societies of Canada. The federation says that lawyers should practise law ethically and competently. In particular it says first that lawyers should be honest and courteous. Second they should keep clients informed respond promptly to phone calls and letters and work in a timely fashion. Third they should respect client confidences. Fourth they should safeguard clients’ funds and property and account for money entrusted to them. Fifth they should maintain adequate skills to represent clients effectively. Finally—and perhaps obviously—lawyers should not act in a conflict of interest such as improperly acting against a former client or improperly sharing a business interest with a client. Those obligations are able to be translated into action by dint of the passage of the bill not only as a result of provisions appearing on the face of the bill which when enacted will be binding on the legal profession but also because of the ability to make practice rules in a wide range of circumstances. 
In looking at issues of fundamental obligation three questions arise. I put them as follows. First of all what are the bounds of the rule of law? Second what is the duty of care concept that underpins fundamental obligations? Finally do ethical duties transcend legal obligations to the client? Time does not permit me to expound on the bounds of the rule of law but I will say something about the duty of care. 
The duty of care is a concept used in the law both to define the existence of a legal relationship and to establish a benchmark for a standard of professional care and skill. Of course failure to meet the benchmark creates legal liability. So the concept is inextricably linked to considerations of quality. There is a need for the client to understand the advice that he or she is receiving. There is also a need for that advice to be pragmatic in the sense that it is workable and properly related to the factual framework. 
 I think we all know there are some dangers of course in the provision of advice that is too dominated by pragmatism. It is very easy for lawyers to be drawn into meeting a client’s need for sign-off on a transaction and not sufficiently consider the black-letter law position or to be drawn into meeting the needs of the client by glossing the black-letter law position in a way that might have consequences for both the law firm and the client. 
It is also a reality—perhaps unlike surgery—that much legal work is not subject to absolute judgments as to quality. Just to give an illustration of that it is only for transactions where the commercial relationship between the parties breaks down that the document wording will be reviewed to determine the respective rights and interests of the parties. The vast majority of transactions are implemented without a close focus on those issues. If legal work is perceived as satisfactory the parties rest content on that albeit the reality may be otherwise. 
And so it is that this bill clearly provides for a regime where quality systems need to be implemented and maintained.