It should not be assumed that lawyers always hold the authority or balance of power in a lawyer-client relationship. Significant pressure can arise when your business or reputation depends on a particular client, or when your client is sophisticated and highly demanding or threatening, or adept at influencing or manipulating processes, systems or people. In certain circumstances, you may be under significant pressure to:

• act on instructions that conflict with your independent judgement. Regardless of your client’s wishes, you must exercise your independent forensic judgement and not ‘slavishly … follow a client’s instructions as to how a case is to be conducted’ (Queensland Law Society v Stevens [1996] 17 Qld Lawyer Reps 27, 30)
• abuse the court process and privilege through delaying tactics, invoking the coercive powers of the court, frustrating the discovery process, pursuing groundless actions or allegations, or deceiving or misleading the court 
• engage in conduct that is dishonest, illegal, or that may otherwise bring the profession into disrepute, or that is prejudicial to the administration of justice
• accept unusual payments of money into your trust account or accept large sums of cash in payment for your services
• accept large gifts or favours (e.g. luxury goods, expensive tickets, cars, renovations etc.) which creates a sense of obligation
• provide advice on how to avoid compliance with legal obligations, conceal an offence or avoid detection or punishment, or
• improperly assert legal professional privilege.

If you succumb to such pressures, you can leave yourself vulnerable to civil liability, criminal responsibility and professional disciplinary sanction. In this regard, Gino Dal Pont notes in Lawyers’ Professional Responsibility that the following counsel, though directed at accountants, is equally pertinent to lawyers:

As soon as you step over the line for your client, you not only put at stake your integrity and professionalism, you give your whole career and life to your client on a platter to do with as your client pleases, because your client is then able to put pressure on you to do further “favours” that involve you even more in the client’s own fraud or misconduct. In a worst case scenario, if your client does the wrong thing, he or she will take you down too (at [19.30], citing Arthur Athanasiou, ‘Who’d be an Accountant?’ (2004) 38 Taxation in Australia 362).

Situations where client pressure comes to bear can develop slowly and progressively, and not always obviously and overtly. All lawyers should be alive to these risks and how they may manifest in their own practice area. The following three scenarios provide examples of how client pressure in particular areas of law can compromise a lawyer’s professional boundaries. These are not exhaustive examples; such pressures can arise in any area of law. 

High-value commercial settings 

It can be challenging to maintain independence, objectivity and integrity in the face of pressure to meet the goals of clients on whose business your law practice relies. This risk may be present in any firm which relies heavily on a small number of high-value clients, including in niche areas of law, or smaller communities.

Lawyers in smaller practices may feel pressured to undertake legal work outside of their areas of expertise for long-term or loyal clients, to avoid the risk of losing the client to another firm. Lawyers who rely on ongoing lucrative work from high-value clients and their networks may feel pressure—from the client, or from within their own firm—to provide legal advice or representation that reflects their client’s wishes or makes their client ‘happy’. Your firm’s own commercial interests may be so closely aligned to the reputation or income stream provided by a high-value client that it is challenging to insist upon the degree of independence and objectivity required to maintain appropriate professional detachment from your client’s goals.

For example, you may feel pressure to advise a high-value commercial client as to how they can (in essence) avoid their tax obligations, or thwart regulatory requirements, processes or investigations related to their business or conduct. Sophisticated clients who are well-versed in their common law rights may exhort you to claim privilege over documents created for purposes arguably other than obtaining advice or preparing for litigation. 

A clear sign that you are not sufficiently independent of your client is if you do not feel able to advise them on their legal obligations, counsel them against breaking the law, and terminate the retainer or agreement to act if they do break it. 

It should be noted that there is a distinction between presenting your client with ‘an analysis of legal aspects of questionable conduct’, in good faith, to test the validity or scope of the law, and ‘recommending the means by which a crime or fraud might be committed with impunity’ (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [19.50]). The former represents a legitimate part of your role, whereas the latter is clearly not part of your role and is in breach of a number of your professional obligations.

Whether or not you initiate or derive any personal financial benefit from your client’s unlawful conduct does not protect you from sanction if you were aware of it and ‘did not object to it for fear of upsetting the client’. (See Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [19.45], citing Re Scarfone [1998] 2 LPDR 26, in which the lawyer made no objection to a contract that understated the purchase price by $20,000).  

The practice of criminal law

The practice of criminal law can also involve pressure from clients to turn a blind eye to apparent illegality. This might include being less vigilant than required in terms of how, and for what purpose, monies are paid to you or into your trust account. If a client seeks to pay you in large amounts of cash, and you fail to undertake an appropriate risk assessment and obtain a clear explanation and documentary evidence of the source you put yourself at risk of participating in money laundering activities or receiving the proceeds of crime.  You also have duties to report large or multiple cash transactions to the Australian Transaction Reports and Analysis Centre. (See Queensland Law Society, Proceeds of crime compliance and Anti-Money Laundering). 

Another risk in criminal law practice is that of your clients and their associates revealing information about potentially criminal conduct (other than the subject matter of your retainer or agreement to act) which may be of interest to authorities. Such knowledge could create a conflict between your professional and ethical duties and put your safety at risk. 

Mixing socially with your clients and their associates can also blur the distinction between information shared with you in your professional capacity, as part of your retainer, and information shared with you in a conversation that is not necessarily privileged or confidential.

In certain circumstances, multiple members of a group, club or association can find themselves facing criminal charges. The allegations giving rise to the charges may relate to one, some or all of the relevant group. In all circumstances, we strongly discourage you from acting for two or more co-accused at the same time in the same (or a related) matter where their interests are adverse, as this creates a conflict of interest.

You should also be aware that serious ethical risks arise if you socialise with your client in circumstances where co-accused (who you don’t represent) are also present. If you become aware of confidential information about one or more co-accused, which is relevant to your current client's case, this likely creates a conflict of interest. Further, as our Regulatory Guideline – Lawyer conduct in providing information to the police states, it is your obligation to ensure that people understand when you are not acting for them, and that therefore what they may tell you is not covered by legal professional privilege or other professional duties, and you could be compelled to divulge what they tell you to authorities. 

Further, pressure from a criminal law client may make you more susceptible to situations in which you:

• find it more difficult to discharge your professional duties where your client has lied, falsified a document, or suppressed material evidence (r 20.1); confesses guilt but maintains a plea of not guilty (r 20.2); or informs you that they intend to disobey a court order (r 20.3).  
• risk perverting the course of justice through dealing inappropriately with witnesses, for example, by pressuring them in relation to their evidence or participation in a proceeding (see Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 where the respondent lawyer’s personal relationship with a client charged with a criminal offence led her to pressure a witness to withdraw his evidence). 
• make unjustified or spurious allegations of fact or against other people (in breach of r 21.1 and r 21.3 and potentially r 34).
• abuse the privilege of lawyer-client prison visits for ulterior purposes, thereby jeopardising the trust and confidence that the public and prison authorities have in the profession (see Legal Practitioners Conduct Board v Morel [2004] SASC 168, para. 46).
   

A note on the Human Source Management Act 2023

The Royal Commission into the Management of Police Informants recommended establishing a legislative scheme for the management of human sources, and this recommendation has been implemented following the passage of the Human Source Management Act 2023.

It is important to be aware that, although the Act permits Victoria Police to register lawyers as human sources and use privileged information in specific circumstances (i.e. with the prior authorisation of the Supreme Court of Victoria), the Act does not change lawyers’ professional obligations and duties. 

Lawyers are ethically and professionally obliged to maintain client confidentiality, other than in specific and confined circumstances. If they choose to inform on their clients to police they are likely to do so in breach of this obligation, as well as their obligation to act in their clients' best interest, and disclose or avoid any potential or actual conflict of interest. 
 

Attempts to understate or conceal financial or asset positions

There are a number of circumstances in which a client may desire to either understate or take steps to outright conceal their interests in, and full holdings of, cash and other assets. This can include family law clients in combative divorce proceedings, clients at risk of or experiencing personal or business insolvency, or clients who are under tax auditing/investigations or looking to restructure their tax affairs.

You should be particularly attuned to exercising independent forensic judgement if you receive any seemingly unusual or unexpected instructions or documents from these clients regarding their financial or asset position. The same applies to proposals to restructure their arrangements or transfer assets in ways that seem to lack a straightforward personal or financial justification.

Do not succumb to any temptation to be less vigilant than required in terms of how, and for what purpose, monies are paid to you or into your trust account.

As a lawyer, you are ultimately responsible for managing your relationship with your clients and accountable for the advice you give and actions you take on their behalf.