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Providing legal services to partially vaccinated and unvaccinated clients

This guidance deals with solicitors’ obligations when it comes to providing legal services to clients who are unvaccinated, or partially vaccinated, against COVID-19

It sets out principles, rules and factors we consider to be relevant to decisions you make about this issue. Our intention is to support you to make decisions that are well-reasoned and to specifically highlight considerations we will take into account in the event of a client complaint to us, e.g. that they were exposed to disadvantage or detriment because of your decision.

Factors to consider generally

There are many factors to consider and balance. 

As a member of the legal profession, you have ethical obligations and duties you owe to the court and administration of justice, as well as to your clients.  There are also ways to manage risks to yourself, your staff and other clients that may arise from unvaccinated or partially vaccinated clients, and in so doing facilitate access to justice for these individuals, e.g. by implementing COVID safe measures.

You are also subject to Federal and State anti-discrimination laws in providing legal services.

The Australian Human Rights Commission and Victorian Human Rights and Equal Opportunity Commission urge businesses to exercise caution in refusing goods and services to unvaccinated individuals. You should especially keep in mind that some people won’t be able to access vaccination for medical reasons, by reason of age or for reasons connected with another protected attribute under equal opportunity legislation.

As a member of the community you are also obligated to comply with public health orders, and if you are a business owner you need to meet occupational health and safety requirements.  Valid considerations are also your business viability and needs, your personal health situation, and the health status of your staff.

Current public health orders and information on ensuring a COVID safe business workplace can be found at Victorian Government Coronavirus website.

The following scenarios explore how your competing interests and obligations may factor into your decision-making in relation to new and existing clients. Note that if you can’t verify a client’s vaccination status, it is reasonable for you to assume that client is unvaccinated.

Safe work Australia provides helpful information for businesses including how to approach a conversation with clients about their vaccination status.

Solicitors do not have an obligation to accept instructions from a new client. 

If you do offer services in person at your office you will need to ensure they are delivered in a manner that complies with current public health orders applying to office premises. If you have employees, you are responsible for their health and safety in the workplace, so ensure you obtain relevant advice about how you should properly manage this.

If, taking into account all relevant considerations, you do not generally wish to offer services to unvaccinated or partially vaccinated new clients in person, a respectful approach is to be clear about your position, by having it stated on your website and advertising material. You should describe the types of legal services that are unlikely to require in person meetings, e.g. advising on contracts of sale, reviewing documentation, initial or subsequent client interviews to obtain instructions in family law or personal injury matters, providing advice about settlement offers in litigation proceedings, etc. You should also describe how you will provide services, such as by video conference or telephone. Being upfront and transparent with clients reduces the potential for embarrassment and conflict. 

You should also develop referral options to assist prospective clients who are vulnerable, who may have difficulty accessing or communicating in an online environment, or whose matters are urgent or are already in court, to ensure they are not disadvantaged or denied access to justice.

Having a clear and transparent policy for your law practice that is the responsibility of a senior practitioner can help you avoid reputational damage to your firm and ensure more efficient management of your business. Keep revising your policy in light of updated public health orders and information; for example, you may decide to change your policy once you have evaluated new factors such as rapid antigen testing or a reduction in community transmission.

The factors you must consider in managing unvaccinated or partially vaccinated clients are more complex when they are existing clients. Your fundamental ethical duty to act in their best interests does not change according to whether or not they are vaccinated. 

It is important you proactively evaluate your intended policy regarding vaccination status carefully against your existing client matters, in light of the likelihood those matters will require in person interaction in the near future.  These situations are likely to arise where the work is in connection with a court or must be done in person, e.g. witnessing some types of documents, or verifications of identity. 

Terminating your engagement with your client on the basis of their vaccination status is a very serious step and one you must consider carefully.  Your action can have the potential to cause significant disadvantage to your client’s matter and negatively affect the administration of justice.  It may adversely affect your right to exercise a general retaining lien over the client’s file and other documents to secure payment of outstanding professional fees and disbursements. It may also potentially expose you to damages for breach of contract.

Although your client can terminate your services at any time without notice, you are subject to Rule 13 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, which deals with the completion or termination of a retainer. Rule 13.1.3 contemplates termination of a retainer by a law practice for ‘just cause and on reasonable notice’.

What amounts to ‘just cause’ and ‘reasonable notice’ is determined on the facts of the matter.  Common examples of ‘just cause’ include where it becomes apparent a solicitor will be a witness in their client’s case, or where the client refuses to give instructions to allow the solicitor to proceed or where there has been a complete breakdown in the solicitor-client relationship.  What constitutes ‘reasonable notice’ will vary with the facts, but you should act promptly, once you have determined it is proper to terminate an engagement in the circumstances.  Being proactive with your current client list will also assist you to potentially provide greater notice periods.

Merely disagreeing with your client’s decision about whether to be vaccinated is unlikely to constitute ‘just cause’ to terminate an engagement. However, risks to your own health or that of your family or employees (especially where specific health vulnerabilities exist) are likely to be relevant to the assessment of whether termination of the engagement with the client is appropriate.  Other factors you must balance against this are:

  • The disadvantage or potential injustice that might be caused to your client’s case
  • The urgency of the matter and any particular vulnerabilities or dangers to the client
  • The particular point at which the matter is poised
  • Whether the matter may result in a conviction and a term of imprisonment
  • Whether other colleagues are prepared to progress the matter, e.g. a colleague, agent or barrister.

Matters before a court

Even greater diligence must be applied to the situation where the matter is already before a court. In addition to the considerations listed above, you must also ensure you comply with the applicable rules of the court when seeking to cease to act, which may require you to seek the court’s leave.

Currently, the courts are open to persons who are unvaccinated or partially vaccinated and judges and court employees are not subject to vaccination mandates.  Public health orders applying to legal professionals mirror this situation.  Lawyers must be fully vaccinated to work outside of their place of residence, such as in the office, except where the work is in connection with the court or must be done in person.  We consider the fact that courts remain open to unvaccinated or partially vaccinated people to be an important consideration for you in weighing up the relevant factors where a client has a matter already before a court.

If you are involved in litigation, you should become familiar with directions or protocols released by the courts regarding their expectations around maintaining a COVID safe environment. The situation in the courts may continue to evolve regarding the attendance of unvaccinated and partially vaccinated persons. If that occurs, we will update this guidance accordingly.

Whatever decision you make, be respectful and take care and time explaining the decision to your client.  It is very important to take notes of all conversations with your clients about these issues and file written material relating to the decision.  This should include notes about how you balanced the relevant factors and why you came to the decision you did.

If you have concerns about your particular fact scenario, you can access the LIV Ethics line, which is a free and confidential service, available to every lawyer with a practising certificate. The LIV COVID Hub provides excellent and up to the minute information specific to the legal profession.

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