Some Relevant

Circumstances
Sale of Land etc to Attorney
Price must be fair; Client must be fully
informed; and receive competent independent
advice

Knowles v Francis
[where Attorney purchased
land - subject matter of
litigation from client
without advising client to
get independent legal
advice - held
presumption of undue
influence not rebutted - transaction
set aside]

Fiduciary Relationship
Relationship between
Lawyer/Client
is a fiduciary one

Lalor v Campbell

Nocton v Lord Ashburton

[where a claimant was
entitled to relief on footing
of breach of fiduciary
duty for advise re
mortgage security given
in the best interest of
the solicitor and not in
good faith]

McMaster v Byrne
[where sale of shares
in company from client to
attorney -attorney didnt
disclose fully to client
all matters he knew
and so had
to account for profit he
made on the transactions]

Presumption of Undue
influence

Gifts from Client to Attorney

Rule is far more stringent
than purchases - Attorney
almost virtually incapable
of receiving gift in addition
to remuneration esp. where
gift is of material value;
presumption
not easily rebutted - client
having separate solicitor
not enough to rebut

Reasons for Disability

Fiduciary Relationship between
Attorney and Client
Presumption of Undue Influence

Wright v Carter
[held - gifts will be
presumed to
be procured by undue
influence especially
if of material value]

Bequest by Client to Attorney

in Will prepared by Attorney
Burden of proof
is on the Attorney to
show that
- the client knew and approved
the contents of the will
- he was under no undue influence
from the attorney
-he received proper independent
advice
Wintle v Nye
[where residuary estate
was left to attorney who
drafted the will - attorney
alleged to advise Testatrix to
get independent legal
advice which she declined will held valid since
Testatrix appeared to know
and approve of contents]

Re a Solicitor
[where independent
advice suggested to
testator but refused
and attorney took
gift any way - attorney
brought before disciplinary
committe and struck off held penalty was not
too severe]

Interest on Client Funds

Fiduciary is not allowed to
profit at the expense
of beneficiary - so any
financial benefits as a result
of use of property of beneficiary
cannot be kept unless authorized
Brown v IRC
[held - principle
well settled that
interest earned on
client funds to be
property of the client]

Legal Profession Accounts

and Records Regulations 8,9,11
[require Attorney to supply accountant
report to GLC annually]
[require account to client for
interest on the funds where
-interest bearing account, or
where funds not on
interest bearing account but
is > 200K and held for
more than 30 days]

Loans from Attorney

to Client
Cockburn v Edwards
[held best to seek
intervention of
another attorney before
lending client money]

Proof of disclosure
and independent
legal advice rebuts
presumption

Disabilities of
the Attorney

In transaction between
fiduciaries
there will be a
presumption of
undue influence unless
contrary shown
Attorney must prove full
disclosure to client
and independent legal
advice to rebut
presumption

Demerara Bauxite
v Hubbard
[where transaction between
lawyer client created a
presumption of undue influence
which could only be displaced
by attorney showing that
the transaction was beneficial
to the client as it would have
been if entered into with a
stranger and that client had
independent legal advice]

Circumstances
Introduction
There are a number of things
which an Attorney is prevented
from doing
The disabilities may well
outlast the period of employment
Allison v Clayhills
[disability flows
not necessarily from the
contract but from
fiduciary relationship
between Attorney and
Client]

Demerara Bauxite v Hubbard

[PC held that even if
relationship ends, same
principle re confidentiality
of info is presumed to continue]

McMaster v Byrne
[Where solicitor
client relationship
was held
to continue to
exist at date of
transaction even
though solicitor
was no longer acting
officially for client
at that date]

Presumption in
fiduciary
relationship
National Westminister
Bank v Morgan
[held that relationship of
trust and confidence
had to be
proven before
undue influence could
arise]

Lalor v Campbell
[where respondent arranged
with counsel to sell him an acre of land
as a payment of fees - held
attorney purchasing property of client
owes him a duty to more
full and free disclosure on
every material fact he knows
and must satisfy the court that the
contract is one of full advantage to the
client]