I have always been curious about the extent to which a term might be implied into a retainer giving contractual force to the rules of conduct whether found in rules of the Law Institute or found in the regulatory Acts.
In Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164, Byrne J said at [101] that it was not open to the plaintiff to contend that a breach of s. 174 of the Legal Practice Act, 1996, which governed the withdrawal of moneys from solicitors’ trust accounts, constituted a breach of an implied contractual term in a particular retainer to comply with the Act.
He suggested, in the same paragraph, that a party who wishes to rely on the solicitors’ professional conduct rules ought to adduce them into evidence.
