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Supreme Court examines NSW solicitor’s alleged ‘incompetence’

A Supreme Court waived legal professional privilege on the communications between a client and her former solicitor due to the latter’s alleged “incompetence” and failure to take instructions.

user iconNaomi Neilson 04 August 2023 Big Law
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A conversation between a client and her former Sydney firm, Lexsons Law Firm, was called into question in the NSW Supreme Court because of what the client alleged was a “miscommunication” about an intent to add a defendant to a dispute concerning a loan.

The court heard the client had instructed Lexsons to add the third defendant but “did not know the reasons why that did not occur”.

Through her new representation, the client was “putting in issue either the competency of Lexsons or that Lexsons had deliberately not acted in accordance with the instructions given”.

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While Justice Michael Walton found it would be “theoretically possible” the miscommunication may be due to “something other than the former solicitor’s incompetence” in not giving effect to the client’s instructions, this possibility was “somewhat remote”.

Justice Walton found the description of the instructions to the former solicitor were “expressed in clear and emphatic terms” and that there was evidence of a discussion between the former solicitor’s and the defendant’s solicitor “that made it clear that it was communicated”.

“I agree with the [defendant] that what is left in the balance after this analysis is that…the former solicitors were acting incompetently or in deliberate defiance of instructions,” Justice Walton said.

In the absence of communications between the former solicitor and the client about adding the third defendant to the proceedings, the court found the existing defendants were “unable to test the plaintiff’s contention that she gave instructions and that they were not obeyed through incompetence or maligned design”.

The assertion then that the client “had no knowledge” the former solicitor failed to act on the instructions “opens the question of examination” by the defendants of their communications, including whether advice was given by the former solicitor on the issue.

“The plaintiff has, therefore, in my view, directly put in issue what communications passed between her and her former solicitors, including what the solicitors said to her on receipt of the instructions, what the former solicitor did with those instructions and why the solicitor so responded,” Justice Walton said.

“In doing so, the plaintiff has waived privilege.”

The matter is Bin Li v Changshun Wang & Jianrong Su.

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