The Tenants’ Union of Tasmania is not for profit organisation dedicated to advancing the cause of residential tenants. This involves, amongst other things, lobbying government for legislative change, speaking to the media, and providing legaleducation to the community, but our primary function is to provide tenants with free legal advice and representation. Specifically, we focus on trying to maintain our client’s tenancies when they are in jeopardy.

As lawyers, we owe a fiduciary duty to our clients. This means we are legally required to provide them with the best advice we can. This even extends to situations where it might be financially detrimental to the lawyer to give the advice – for example a private lawyer may be in breach of their fiduciary duty by not letting a client with a tenancy issue know that the Tenants’ Union provides free advice.

Our own moral quandaries cannot be taken into account when giving advice. Even if a client is $10,000.00 in rental arrears, and has no intention of rectifying them, if there is an error on the notice to vacate we must let the tenant know that it is unenforceable. We also must let them know when they are in the wrong – and how to correct their mistake(s). If we gave clients poor advice on the basis of our distaste for their actions we would likely be disciplined by the Legal Profession Board. As such, there is no point in trying to convince us that the tenant is a bad person – unless it effects their legal position, it is irrelevant.

While we encourage our clients to follow our advice, and in general they do, they are not required to. They issue us with instructions, which we must carry out (as long as they are lawful) even if we don’t think they are wise. For example, proceeding to hearing rather than agreeing to a generous
settlement offer. When we are engaging with you in relation to a client we are never acting under our own volition – it is always at the instruction of our client. However, as our resources are limited we generally only represent clients when we don’t believe they have the capacity to do so themselves.

We do not owe any duty to the opposing party. In fact, providing advice, assistance or confidential client information to an opposing party, or even a potential opposing party, could result in professional disciplinary action. This is why we regularly turn down calls to our advice line from owners or
agents.

That is not to say that the interests of our clients and your clients do not overlap. We will generally advise our clients to instruct us to negotiate a solution that is mutually agreeable to both parties. Of course, there are some situations where this is not possible, or not advisable. But if your client or our client has issued a claim, or has appealed a bond determination, there is almost always a middle ground that can reached that will avoid the cost, stress and time involved in going to court. A letter of demand from us is just that – a demand – but it is also an invitation to provide reasonable counter offers or solutions. Around 95% of civil matters are resolved before they go to hearing – we encourage you to assess claims dispassionately and with regard to the evidence and the law.

Even if there is no prospect of settlement, and the relationship between our client and your client is hostile, we will maintain a level of professionalism and amicability when dealing with you. We will fight as hard as we can for our clients but ultimately the dispute is legal, not personal. We would be
doing a disservice to our clients, the court and the profession if we let our personal feelings interfere with our professionalism.

If you have any questions about our organisation, or want to organise your own information session for your staff, please don’t hesitate to contact us. We hope we can continue to work together productively and cooperatively.

This article by Tenants’ Union of Tasmania solicitor Alex Bomford was first published in the Property Agents Board of Tasmania‘s Information Bulletin No. 23, December 2017