Retainer Flashcards
How are certain terms implied into retainer?
By law and professional conduct requirements
What is good practice to include in CCL?
- What agreed to do
- Both parties responsibilities
(e.g. keep updated) - Any limitations on what can do for client (e.g. if funded by an insurer)
- Best possible info re costs
(all in client friendly way) - right to cancel without liability during cancellation period (esp if off-premises)
Considerations re proportionate approach to ID requirements
Size of firm, client, risks, number of fee earners
Can a solicitor take instructions from a third party on a client’s behalf?
Yes, if they are satisfied TP is properly authorised to do so
Risks in litigation if taking third party instructions
Warrants as having authority
Personally liable for costs incurred
(e.g. only authority from 2/3 trustees so breached code of conduct)
What must solicitors be careful of when declining instructions?
Discrimination
If suspect TP is not authorised to provide instructions, what must they do?
Not act unless satisfied themselves by taking appropriate steps
(e.g. interview client alone)
Or ask for protection from High Court
If can’t obtain instructions from client who have legal authority to act for, what must they do?
Overriding obligation best interests
(e.g. authorised Court of Protection)
What should you do if client wants to act in detrimental way but no evidence of undue influence?
Explain the risks, check if still want to proceed and document this/their consent
If lack time, resources and expertise, should you accept instruction? What principle does this engage?
No. Best interests (7)
If a client wishes to make a gift of £____, consider if it is significant
£500
What will be relevant in considering significance of gift from client in will
- Represent more than 1% client’s estimated net assets
- Valuable in future?
- Provides benefit more than relationship justifies
Can you draft a will for a non-relative which you receive something in?
Yes - but advise need independent legal advice on the gift
Can you draft a will for relative in which you receive something?
Yes - if for parents and survivor wishes to leave estate equally with siblings
What principle will fraud/conflicts of interest/misleading court engage?
Rule of law
Can solicitors be sued for duty reasonable care and skill? If so, in what and do they need to state this in retainer?
Yes.
Negligence.
No - it is implied.
What type of relationship does a client and solicitor have and what does this impose?
Fiduciary. Duty of care.
Can a solicitor bind a client?
Sometimes (implied authority) but shouldn’t.
Client can limit this in terms of retainer.
Can solicitors and client’s terminate retainer at anytime?
No - clients only (but must pay fees for work done so far)
When can a solicitor terminate a retainer?
- Client instructing to break law/breach professional conduct
- Can’t obtain proper instructions
- Breakdown in confidence (e.g. client not willing accept advice)
What is good practice when terminating a retainer with a client?
Reasonable notice (considering nature of case)
Can a retainer be terminated by law?
Yes, automatically.
If:
- Solicitor declared bankrupt
- Either party loses mental capacity
(usually colleague takes on)
What should you do on termination?
Confirm termination in writing and (if apt) their possible next steps
Deal with anything of clients they hold
(e.g. money - return with interest)
Paperwork - if ongoing, retain copies (only for purpose collected)
Can a solicitor exercise a lien (keep until pay) over client’s property (e.g. paperwork)?
Yes, but may prefer to accept undertaking to pay costs
How must you give information to clients?
Way they understand so can make informed decisions
What should you discuss with client at start of matter re costs in litigation?
Whether risk outweighs expense
Risk of paying other’s fees
Legal expenses insurance
Key aspects of level of service
Timely
Knowledge/skills up to date
Consider individual client
What should you check with client re costs at start?
Is there any third party funding? E.g. an insurer. This will limit what you can do without authority from TP.
Are supervisors/managers accountable for work of those under them?
Yes - must make sure they are up to date, competent and effectively supervised
How to ensure clients understand how services are regulated
Explaining what carried out by solicitor (as an authorised person)
What services are regulated
Not representing someone who isn’t SRA regulated as such
What info should client be given re costs
Best possible info as to overall costs
Warn of any other payments
When do you need to provide client with costs info?
At start and (if apt) throughout