4. The Retainer Flashcards
The contract between a solicitor and the client is often referred to as a ‘…….’. As with any
other contract, the relationship between the solicitor and the client is governed by the general
law. However, in addition to considering the general law, a solicitor must also comply with
obligations placed upon them by the requirements of ……. …….
Retainer
Professional conduct
Accepting Instructions - Terms of the retainer
One critical issue is to ensure that the client understands exactly what work the solicitor has
agreed to undertake. Although not required by the Code of Conduct for Solicitors, it would
be good practice for a solicitor to send a letter to the client at the start of the transaction,
confi rming to the client exactly what the solicitor understands their …… to be. This will
help to avoid any misunderstandings at a later date.
Instructions.
Accepting Instructions - Identity of the client
A solicitor must identify whom they are acting for in relation to any matter (Paragraph 8.1).
Purpose is to try to prevent solicitors inadvertently
becoming involved in …….
Known case P&P Property Ltd v Owen White & Catlin LLP and Another; Dreamvar (UK) Ltd v Mishcon
De Reya and Another
Fraud
Accepting Instructions - Identity of the client
A solicitor is also under a separate duty to obtain ‘…… …….’ of the identity of
their clients (ie is the client actually the person they claim to be?). This obligation is imposed
by the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer)
Regulations 2017 (SI 2017/ 692) (see Legal Services).
Satisfactory evidence
Accepting Instructions - Third Party Instructions
When considering whether to accept instructions from or on behalf of a number of clients, the solicitor must also take into account any actual or potential …… of …….
The Code of Conduct for Solicitors provides that a solicitor only acts for clients on instructions
from the ……, or from someone properly ……… to provide instructions on their behalf.
(Paragraph 3.1).
Warner v Masefi eld [2008] EWHC 1129
Conflict of interest
Client
Authorised
Refusal of instructions to act
A solicitor must not unfairly discriminate
by allowing their views to affect their professional relationships and the way in which the
solicitor provides services (Paragraph 1.1).
A solicitor would therefore be in breach of the
Code of Conduct for Solicitors if, by refusing to accept a client’s instructions, it could be shown
that the solicitor was unfairly …….. against that client because of, for example, the
client’s race or gender.
Discriminating
Duty to act in the client’s best interest:
A solicitor must act in the best interests of each client (Principle …). Accordingly, a solicitor
must not accept instructions in circumstances where the solicitor will be unable to meet this
fundamental requirement. This might occur where there is an own interest conflict or a ….. .. …… (see Chapter 7) or where the solicitor holds ‘material’ confidential information for an existing or former client which would be relevant to a new instruction (see Chapter 6).
7
Conflict of interest
Drafting a Will - Offering a Will
The Law Society has issued a practice note which offers some guidance. It advises that a solicitor should carefully consider any gift worth more than £…. to determine whether it may be considered significant in the particular circumstances, and that it can be assumed that it would be significant if:
(a) it is worth more than 1% of the client’s current estimated net estate;
(b) it might become valuable at some point, especially after the death of the client;
(c) it provides a benefit to an individual which is more valuable than his relationship to the deceased reasonably justifies.
The SRA says that usually the effect of Paragraph 6.1 will be to prevent the solicitor acting unless the client agrees to take …… …. …… on making the gift. However, each case must be considered on its own facts.
£500.00
If the acceptance of the instructions would place the solicitor in breach of the ….. .. …… for Solicitors, the solicitor must refuse to act.
A solicitor must also be able to ….. their decisions and actions in order to demonstrate
compliance with the solicitor’s obligations under the SRA’s regulatory arrangements
(Paragraph 7.2).
Code of conduct
Justify
In addition to the solicitor’s …. .. … in common law, …. Supply of Goods and Services Act 1982 provides that a supplier of services will carry out those services with ….. …. … …… This term is implied into the retainer between a solicitor and the client, and therefore the solicitor may be sued for a breach of contract if the term is breached.
However, this implied term does not apply to advocacy services provided before a court, tribunal, inquiry or
arbitrator (Supply of Services (Exclusion of Implied Terms) Order 1982 (SI 1982/ 1771), art 2).
Nevertheless, the solicitor may be sued for …… in both contentious and non- contentious
proceedings. The House of Lords removed an advocate’s protection from negligence claims
in Arthur JS Hall & Co v Simons [2002] 1 AC 615. Accordingly, a solicitor who acts as an advocate may be sued in the tort of negligence if the solicitor breaches their duty of care to the client within court proceedings.
Duty of care
S13
Reasonable care and skill.
Negligence
Under the common law, a …… ……. between solicitor– client is one where one party must act in the best interests of the other party.
This means that the solicitor must put the interests of the client before their own.
Fiduciary relationship
A solicitor may derive authority from the retainer to …. the client in certain circumstances.
This authority can be limited expressly by the client in the terms of the retainer. However,
the solicitor should never seek to rely on this …… …… to …. the client. Express instructions (Form of instructions) should always be taken from the client prior to the solicitor taking any step in the proceedings or matter.
Bind
Implied authority
Termination by the client
A client may terminate the retainer .. …. ….. for any …… However, the client is likely to be liable to pay the solicitor’s ….. for work done up until the point of termination. A solicitor may require their costs to be paid prior to forwarding the file to the client.
at any time
reason
fees
In contrast to the right of a client to terminate the retainer at will, a solicitor must consider
whether the solicitor will be able to …. a decision to terminate the retainer having regard
to their obligations under the SRA’s regulatory arrangements (including the Principles and the
Code of Conduct for Solicitors) (Paragraph 7.2). Good reasons for terminating the retainer
may include:
(a) the solicitor has to terminate the retainer because the instructions would involve the
solicitor in a ….. of the …… or the requirements of professional conduct;
(b) the solicitor cannot obtain proper …… from the client;
(c) there has been a breakdown in confidence within the relationship between the solicitor and client (eg the client is not willing to accept the advice of the solicitor).
Good practice dictates that a client be provided with reasonable notice of termination.
justify
breach of the law
instructions
Responsibilities of termination
As a matter of good ……, a solicitor should confirm to the client in writing that the retainer has been terminated, explain, where appropriate, the client’s possible options for pursuing the matter and take steps to deal with any property of the client which may be held by the solicitor.
For example, the solicitor may be holding client ….. which, subject to the position
on costs, should be ……. to the client as soon as possible, together with any interest.
Practice
Monies
returned
