MEMORANDUM

A range of plausible policy arguments for and against the High Court of Australia
adopting Allsop P’s passage in Dominic v Riz [2009] NSWCA 216 at [90], which considers
exceptional circumstances arise for a lawyer obliged to take additional steps outside the scope of
the retainer on account of protecting the client’s interests, as a legal principle. This memorandum
will discuss the policy issues stemming from duties may be owed by lawyers, the contested
ethical role of lawyers between a lawyer’s amoral role and the role as a moral agent, and the
commercialization in the legal practice.

LAWYER’S DUTIES
Argument for

The proper role of a lawyer involves a duty to the court, as an ‘officer of the court’, and a
duty to the client.1 The lawyer is regulated by a retainer and regulations which aim to balance the
two duties.2 The solicitor’ rules and civil procedure regulations are significant to address the
concerns that emerge from the adversarial approach in civil proceedings which interferes with
the administration of justice.3 Meanwhile, the retainer generally constitutes a contractual
document with expressed provisions of the lawyer’s roles and responsibilities to his/her clients.
Moreover, there are expressed provisions for termination of the retainer which gives rise to
lawyer’s implied tortious duty to the client which may include acting beyond the scope of the
retainer in protecting the client’s interest especially in circumstances where a client’s interest is
at risk.4 It is impossible to ignore the tacit duty of care owed by a lawyer as the clients are placed
in a vulnerable position being dependent on the lawyer’s service to assist them gaining ‘access to
justice’.5 A lawyer’s legal competence should not only rely on their legal professional expertise,

1
Zuckerman, ‘Zuckerman on Australian Civil Procedure’ (2018), Materials, 578.
2
Ibid, 578; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Vic), r20.3.
3
Zuckerman, ‘Zuckerman on Australian Civil Procedure’ 2018, Materials, 16, 440; Legal Profession Uniform Law
Australian Solicitors’ Conduct Rules 2015 (Vic); Civil Procedure Act 2010 (Vic).
4
G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, 2016), Materials, 155; Legal Profession Uniform Law
Australian Solicitors’ Conduct Rules 2015 (Vic), r13.1.
5
G E Dal Pont, Lawyers’ Professional Responsibility (6th ed, 2016), Materials, 150.
but a lawyer is also expected to identify issues beyond his/her legal competence that relevant to
the matter undertaken. 6 However, a lawyer may not be expected to provide solution to non-legal
issue, but failure to bring these issues to the client’s attention may deem the lawyer as legally
incompetent. The High Court has recognized a lawyer’s implied duty as long as it does not
impose prescriptive duties to act in the client’s interests, but instead duties implied must be
proscriptive in nature.7 This is to prevent the displacing of lawyer’s role under the contract and
tort law. Therefore, the High Court should adopt the passage as a legal principle on the grounds
that in exceptional circumstances the lawyer may be guided by an implication from the retainer
to take additional steps outside the retainer to protect the client’s interest at risk, and as long as it
imposes proscriptive duties which would protect the lawyer from a breach of duty of care.

ETHICAL ROLE
i. Argument against

Stephen Pepper’s theory describes the ultimate autonomy of the client and the ‘amoral
role’ of the lawyer would not impose on the lawyer to act beyond the limits of the retainer as the
law has taken into account the ethical reality.8 The lawyer’s objective should be to help client in
accessing the law within the agreed “quid pro quo” agreement (ie. retainer).9 Unless a client asks
for more time, such as to engage in a moral dialogue, than a lawyer would not have to consider
acting beyond the scope of the retainer.10 However, more time required means higher price on
the legal service. With confidence of the law and the current amoral role of the lawyer, the client
will gain or preserve his/her autonomy. Consequently, it is important for lawyers to act pursuant
to the scope of the retainer in providing their client the autonomy embedded in gaining access to
the law.

ii. Argument for

6
Ibid, 116.
7
Ibid, 120; Breen v Williams (1996) 186 CLR 71 at 113.
8
S L Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities (1986), Materials,
615.
9
Ibd, 615-616.
10
Ibid, 631.
 David Luban refutes Pepper’s assumption on the parallels between legality and
morality.11 The lawyer should not rely on the amoral role, but rather a lawyer acts as the moral
agent whom may be obliged to act beyond the scope of the retainer especially when there is a
risk of engaging in an immoral conduct. Luban recognizes the non-exhaustive nature of the law
in prescribing all moral conduct. While increasing autonomy is generally morally good, it is
misguided to believe the exercise of autonomy would not include immoral actions.12 As human
beings we cannot ignore the informal social pressure that guide our behaviour and hence, we turn
to lawyers to be our moral agent.13 Thus, the role of moral agent supports the argument for a
lawyer to take further steps beyond the limits of the retainer is justifiable on the grounds moral
values would help client realize his/her true autonomy.

COMMERCIALIZATION IN THE LEGAL PRACTICE

Argument against

Joanne Bagust’s theory argues that the commercialization of the legal practice
demonstrates a social concern of threatening the integrity of the profession.14 As more law firms
practice corporate law and are driven to maximize their profits, a lawyer is prepared to
circumvent the strict execution of the retainer to suit the increasing number of corporate clients.15
The lawyer’s identity as a professional autonomous worker is reformed and subjected to adopt
the perceived necessary skills associated with being business savvy to satisfy the demands of the
corporate clients.16 In understanding the impacts of commercialization on the legal practice, it
would be disadvantageous for the High Court to adopt Allsop P’s passage as a legal principle
because by enabling lawyers to act beyond the scope of the retainer would undermine the
professional autonomy of the individual lawyer and ultimately, the integrity of the profession.

11
D Luban, ‘The Lysistration Prerogative: A Response to Stephen Pepper’ (1986), 638.
12
Ibid, 639.
13
Ibid, 641.
14
J Bagust, ‘The Legal Profession and the Business of Law’ (2013), Materials, 32.
15
Ibid, 40-42.
16
Ibid, 38.
 CONCLUSION

In conclusion, these policy arguments suggest the High Court should adopt the passage
provided by Allsop P in Dominic v Riz as a legal principle. The support for this refers to lawyers
acting outside the bounds of the retainer restricted only in exceptional circumstances where it
addresses a potential negligence claim to be made against the lawyer or limited moral values are
upheld in the law. Otherwise, the general rule should prevail for lawyers to abide by the limits of
the retainer to protect the integrity of the profession.