Prior to entering any retainer or agreement to act, you should consider any potential risks to your own independence or objectivity raised by the prospective client.

You should either have a credible plan for ameliorating such risks, or be prepared to recommend alternative representation. Avoiding a relationship in which your professional boundaries will be tested is more manageable than agreeing to act for a client and subsequently needing to extricate yourself from the relationship.

There are some situations where the risk that your professional boundaries will be compromised is higher than normal. Common higher-risk situations and supplementary information and guidance are outlined below.

• Acting for family members
• Acting for someone with whom you have a commercial relationship
• Acting for clients from within a community with which you identify
• Acting for clients experiencing vulnerability, including those in the criminal justice system
• Acting for someone who is exerting significant and unreasonable pressure on you
• Acting for someone with whom you commence, or are in, a sexual relationship

Whether your relationship with your client existed prior to, or came into being as a result of, your retainer or agreement to act, it is important to be clear with them about:

• your respective roles and responsibilities
• your goals and appropriate timing, purposes and methods of communication, including when and where you are available to receive instructions and/or provide legal advice
• when you may need to terminate a retainer or agreement to act—for example, if a conflict arises where you cannot act in their best interests, or they expose you to potential risks you are not willing to accept, or ask you to act in a way that would be unethical or illegal (see Legal Practitioners Liability Committee 2018 ‘When to say goodbye’ Law Institute Journal).

Instructions and advice should be conveyed/provided in settings that are appropriately confidential. What is appropriate will be a question of fact and your own judgement in the circumstances, but it is generally wise to meet your clients in your office or another professional setting, rather than a personal setting, such as either of your homes, or social setting like a bar, club, or entertainment venue.

Any circumstance which could negatively affect your capacity to receive instructions and provide advice may render the setting inappropriate. This includes being in a noisy or crowded social or sporting venue or in the presence of alcohol. Therefore, if you meet your client in a cafe or restaurant for convenience, ensure you have sufficient privacy to enable a confidential discussion.

Beyond the more obvious risks to confidentiality or privacy of discussing legal matters outside of the office setting, it is easier for you to prepare contemporaneous and accurate file notes and other records when you have discussions in the office. 

It is not uncommon for lawyers to be asked for some form of legal assistance, advice or opinion in social settings, so it is wise to have a plan for dealing with such requests.

Sometimes it’s a matter of simply referring people to a colleague that you think will be able to help them, or providing a general view about aspects of their matter that they need to consider or seek advice on. Alternatively, it may be a matter that you or your firm would be prepared to work on. However, in all cases you should try to avoid or divert in-depth discussions or requests for advice in social settings. A retainer or agreement to act may subsequently be implied by the court, even if that wasn’t your intention.

If the person you’re talking to is an existing client, or expresses a desire to retain or engage your services, invite them to make an appointment through your office so that you can discuss the issues in detail in a confidential setting where you can sort through the issues fully.

Our supplementary resource Managing legal discussions in social settings has more detailed guidance on how to navigate these situations.

A note on acting for friends

Deciding whether to act for a friend is a judgement call for you to make, depending on the nature of the relationship and the circumstances. You should be aware that some of the risks that arise when acting for family may be present: these are outlined in greater detail in our supplementary resource Acting for family.

In general, it is not a good idea to volunteer to your client information about your personal life. Keeping boundaries between your work and personal lives helps to ensure that clients don’t develop unhealthy dependencies on you.

If you are subjected to pressure from a client to breach your professional obligations, or the law, you can inform them that it is an offence (carrying 100 penalty units) to cause or induce or attempt to cause or induce a lawyer to contravene the Uniform Law, the Uniform Rules or their other professional duties (s 39, Legal Profession Uniform Law). 

The ability to have difficult conversations and tell people things that they do not want to hear is a critical professional skill for lawyers. Shying away from, or not being able to have, such conversations is an indication that you would benefit from some mentoring or other development in this area, or through accessing advice from the Law Institute of Victoria (LIV) ethics line.

It can be very difficult to provide independent, competent, and high-quality legal services to your client if you are simultaneously concerned that your professional boundaries are threatened. If your professional boundaries are compromised to the extent that you feel unable to meet your professional duties – or you find yourself in circumstances in which your professional boundaries could be perceived as being compromised - you should consider whether you are in a position to cease acting for the client and/or to terminate the retainer or agreement to act.

You can terminate a retainer in the circumstances set out in r 13 of the professional conduct rules. Note that specific rules of court apply when litigation is on foot, and also to criminal law proceedings. Detailed guidance on this topic has also been published by the Legal Practitioners’ Liability Committee in its 2018 Law Institute Journal article ‘When to say goodbye’ and in Michael Dolan's Law Institute Journal article 'The client from hell' (at pp 42-45). 

It is also important to maintain appropriate professional boundaries with other parties, including opposing counsel, prosecutors, police officers or judicial officers involved in a matter, and third parties such as social workers, court report writers and journalists. You may regularly work or have some social contact with these people, or they may even be friends. Whatever the case, you need to make sure that you aren’t inadvertently sharing information about your clients that could be considered confidential, e.g. through the sharing of war stories. 

Lawyers involved in criminal matters need to take particular care to ensure that they maintain appropriate professional distance from lawyers from the opposing side and police officers with carriage of, or involvement in, the matter. The risk of not doing so is explored in more detail in our supplementary resource Being mindful of your conduct with other parties.