Professional Considerations When Acting for a Legally Aided Client
The ordinary solicitor-client relationship arises between you and your aided client. However, you have certain additional duties, set out in Australian Solicitors' Conduct Rules 16A and in the Legal Services Commission Act 1977 (SA).
When accepting legal aid work
- you must advise the Commission frankly of your views about merits, even where this may result in the termination or limitation of aid to your client
- you must likewise inform us of any change in your client's means or situation which could affect eligibility
- you must tell the client what you have told us
- you may not disclose your client's aided status, unless expressly and necessarily instructed to do so, or required by law.
Your client will also be expected to follow your advice in the matter. Aid will be stopped if he or she unreasonably refuses to do so. Again, it is wise to ensure that the client understands this from the outset, so as to avoid later complaint.
Clients sometimes ask the Commission for copies of their files maintained by the Commission, or documents from those files, such as your letters. You should not assume that any correspondence you send us can be kept from your client. We take notes of all telephone or in person communications with lawyers about legal aid cases, and keep any letters you write to us on file. Our notes and your letters must be released to a client who wishes to know how a legal aid decision was made. The fact that you have asked for the communication to be kept confidential or secret from the client will not protect it from such release. The Commission routinely grants clients' requests for access to their files, and may be compelled to do so under the Freedom of Information Act 1991 (SA).
Your client may request a re-assignment to another solicitor during a grant of aid. In that case, he or she should write to the Commission giving the name and address of the proposed new practitioner, and brief reasons. We will consider the request and will let the client know whether it is granted. Such requests are not granted as a matter of course but are considered individually. A re-assignment generally incurs further costs, as the new solicitor has to become familiar with the matter, and may have to repeat work done previously such as reading the file and taking instructions.
Re-assignments are only possible where a grant of aid exists, so, for example, if aid has been terminated because the client will not accept your advice, they will not necessarily be granted further aid to receive advice elsewhere.
If your client's grant of aid is reassigned, you should immediately supply the file to the client or their new solicitor, unless you have a lien over the file, or an unpaid contribution, or any other proper reason not to do so. There is no need to contact the Commission for permission to supply the file to the client. However you should send us your final account at this time.
It sometimes happens in the course of a matter that you become aware of information which suggests that some other party, whom you may consider to be ineligible, is in receipt of a grant of aid. (Australian Solicitors' Conduct Rules r 16A is relevant here also).
If you believe that we may be unaware of any specific facts or facts going to the question of whether aid should be granted, you can write to us stating the facts and supplying any documents you consider relevant, and we will look into the matter. Please direct this correspondence to the client relations officer. We will acknowledge receipt of your letter, but because because of section 31A of the Legal Services Commission 1977 (SA), we are not at liberty to provide you with any confirmation or otherwise of the matters alleged.
Likewise, should your client complain to you that someone else is undeservingly in receipt of aid, your client may phone or write to us providing such information as they consider relevant. Again, we cannot disclose any information to them about another person's situation.