Whistleblowers Australia

Finding a Lawyer

If you wanted a good mechanic or painter or doctor, you would probably look on the net and in the phone book and ask a few friends. You would probably consider their track record, whether they listened, treated you as a twit, explained what needed to be done in language you could understand with a view to you understanding (without being patronising), and whether they were prepared to give a free quote and encourage you to get a few other quotes before deciding.

Well, it is not so different with lawyers and you need to be upfront about it. Contact the Law Society in your state and get (say) three names of lawyers accredited in the area you need and go from there, assuming none of your friends can recommend a lawyer or two to start with.

What you do need to keep in mind is that the law is a big body of information and it is not possible or economically sensible for any lawyer to practice in all areas of law. So, ask whether they have had experience in the relevant area, and be prepared to chase a number of leads before you line up a couple of interviews (of the no-charge, in-person or on-the-phone variety).

Be prepared to take a bit of time. It is generally not that urgent, but if there is some urgency, be sensible with it, as a good choice at the beginning will save a lot of heartache, disappointment and money later.

Be comfortable with saying, after the first interview and before you decide, that you will think about it and get back to them. Be prepared to swap lawyers along the way, although there are a few traps here. If you know you can be comfortable with doing all of this, you will feel less urgent and less unhealthily dependent on your lawyer.

Don’t defer to them just because they are the lawyer and you are not. Do your homework. Look it up and follow your intuition and good sense.

If your instinct tells you something is not right, ask the question. Don’t ever agree if all of your senses are on high alert. Do your homework, because the law is based on practical good sense and fairness, even if the practice of it sometimes is not. Then think about what you are told and find a friend or colleague who has a good head for thinking things through. Talk it through and then, and only then, make a choice.

 
Giving Instructions

Lawyers often talk about having got their "instructions' from their clients. It should mean what it says, that is, that you have told your lawyer to do one thing or another. It shouldn’t mean that you’ve simply been told what is going to happen.

Obviously, if you want to be in a position to give instructions, you need to be able to work out what you want to be done on your behalf.

In the medical setting, this exchange between doctor and patient is talked about as being put in a position to be able to give an "informed consent". That is, your doctor has taken the time to explain what can be done, how it could be done and what the likely outcomes might be in terms of best practice and evidence-based medicine. The law says that you have a right to be so informed and that your doctor has a legal obligation to inform you adequately as to the options and outcomes.

You and your lawyer are in no different a situation. Your lawyer has a legal duty and obligation to advise you about the law applying in your circumstances, the legal options open to you, the likely outcome of each possibility, how that can be accomplished, and the potential cost of attempting to do it all before getting your instructions.

For example, sending you an extract from the legislation applying in your circumstances, without telling you (in writing or in person) what that might mean for you, is just not good enough. You need that information and the advice about the law’s operation and effect on your circumstances upfront, so you can develop a view, ask questions and make an informed choice.

Don’t buy the "not enough time, we have to (etc.)… it’s urgent" line. If the other side is pressing your lawyer for an answer, tell your lawyer to tell them they will have to wait, because you (and your lawyer) need to ensure that you have full information and advice before you give instructions.

Also, don’t buy the "the court ordered us to do this or that" line without question. Courts, or registrars and judges are bound by the rules that give them their jurisdiction (authority). Orders made by the court, except for the final decision on hearing the substantive matter or on a motion, are generally made by consent between the two sides or in court, when one side concedes or gives ground. That is, your lawyer probably asked for whatever it was that was done, so ask the question.

Orders made by a registrar at a mention and directions hearing are orders made by consent because generally the registrar does not have the power (authority) to decide between the competing demands of your lawyer and the lawyer on the other side. If there is no agreement between the parties after a bit of nudging by the registrar, it usually has to be brought before a judge. So, ask how the system works, look up the Court Rules on the net, and let your lawyer know by your actions that you are going to think about what you are told and you intend to give "instructions", not just supply him or her with information.