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
What should cost include?
Fees and disbursements
VAT (or state that doesn’t)
Can a solicitor be held to a costs estimate?
Yes - example where increased substantially but no unusual developments
Is providing with chargeout rate only sufficient?
Not usualy
If can’t provide a precise figure, what should you do?
Explain why and agree either a ceiling figure or review date
Are CCLs required?
No but good practice
How to determine costs?
Individual judgment
Litigation - can you charge client for your fees which can’t be matched by losing party?
Yes, if have written agreement
What should you check about payment of costs at start?
Who is paying (e.g. insurer or trade union) and whether could be eligible for funding (e.g. Legal Aid)
What is classed as an off-premises contract and what is the effect of this?
Not at office (even if visit home and then they ring the office next day to accept)
Must inform of right to cancel without reason/liability during cancellation period
(standard CCL should include)
When does contentious business start?
Once proceedings have been ISSUED
What is not obviously inc in non-contentious business?
All proceedings before tribunals, except land and employment tribunal
(check that in ethics manual)
(checked it and is actually true)
(i suppose there’s not loads of other tribunals)
Resolving claims via online pre-action portals
eg for road traffic claims
Is hourly rate sufficient on its own?
No
Can you alter a fixed fee at a later date?
No (unless client agrees).
What is a variable fee?
Fee that varies according to outcome
What should solicitor consider when deciding whether to enter fee arrangement?
Client’s needs and whether agreement is legal (legal if it is a CFA or DBA)
Likelihood of client winning
Likely damages
Length of time to reach trial
Hours likely to spend working on case
(if CFA, use the above to help decide success fee)
What is a CFA?
no win no fee (or no win LESS fee - but less of a ring to it!)
but pay success fee if win (higher than normal)
Can you enter a CFA for any service?
Litigation or advocacy services.
Or non-contentious if in form of non-contentious business arrangement.
And not in criminal work or family proceedings.
CFA - c for crim - f for family!
Formality requirements for CFA?
Impact of not following?
In writing
Signed by both
Specify any percent payable if success
(nb there is a maximum - sep card)
Agreement void so not entitled to recover any fees under it
Will CFA client have to pay any legal costs if lose?
Not for solicitor (unless no win limited fee) but usually disbursements (e.g. barristers’ fees and VAT).
May have to pay o/s costs.
What should solicitor check before CFA/DBA?
Whether client can obtain insurance to cover costs for disbursements and other side if lose.
(before-the-event or after-the-event cover)
What is a DBA? damages based agreement
If client recovers damages, solicitor’s fee will be a percentage of them
Only get paid if client successful
Max percentage solicitor can recover of their fees under a DBA?
(nb there are cases where it differs)
50% inc VAT of sums recovered
35% employment cases
25% PI cases
No cap on appeal cases
Can a solicitor be remunerated via shares?
Yes - but client should be advised to seek independent advice on this
Can you terminate a retainer if client does not pay money on account?
Only in contentious business
(non-contentious you could just not start work until paid)
What must a solicitor’s bill contain?
- Period to which it relates
- Enough info to show reasonable
- Signed (by solicitor or authorised employee - or covering letter)
- Delivered by hand, post or email if agreed
What type of interim bill can you sue for non-payment of?
Interim statute bills
(client can apply to court to assess)
(nb interim statute bills are diff to interim bills - they are self-contained final bills for work covered by them, even though they are interim, so can apply to have them assessed by the court)
When do interim statute bills arise?
- Natural break in lengthy proceedings (hard to show)
- Agreement with client, where reserve right to terminate if non-payment by specified time (better)
Common form of interim bill
Bill on account
What is a bill on account?
Payment of final bill before it is delivered
Advantage of interim bill
Is it same as statute interim bill?
Does not need to represent final figure
Diff to statute interim bill - can’t sue for non-payment and client can’t apply to court to assess
BUT solicitor can terminate retainer if don’t pay within reasonable time and contentious business
Client can request solicitor issues statute bill if regard as excessive - which can apply to court to assess
When can you charge interest on a bill in a non-contentious matter?
From one month after delivery
If client given notice of right to challenge
Must not be over amount payable on judgment debts (8%)
When can you charge interest on unpaid bill in contentious matter?
- Expressly reserved right in retainer; or
- Client later agrees for contractual consideration to pay interest; or
- Court can award if solicitor suing client for non-payment (Senior Courts Act - same as in disputes)
What must interest on bills not exceed?
Amount payable on judgment debts
Requirements for commencing claim to recover legal fees
One month (or less if High Court think something will happen to delay payment )
Bill in proper form
limitation period for client apply for bill to be assessed by a court?
- Apply within one month
- Or 12 months if leave of court
How does court assess costs where client taken solicitor to court for excessive bill?
Indemnity basis - those which reasonably incurred and reasonable in amount
rrrrichard
only allows costs which have been reasonably incurred by solicitor and reasonable in amount. any doubt resolved in favour of solicitor.
Can client be liable to pay solicitors costs arising from bill assessment process?
Yes
Court’s considerations for whether a bill is reasonable
Complexity
Skill, labour, specialist knowledge, resp involved
Time spent
Documents (contentious only)
Location
Property involved
Registered land
Importance to client
Approval to solicitor for costs (non-contentious only)
Conduct of parties (contentious only)
Are LeO findings binding?
Only if complainant accepts
If does not, either party can pursue other remedies (eg suing in negligence)
Payment implications of non-contentious business arrangement for solicitor and client?
(esp client)
Solicitor paid by salary, gross sum, commission or otherwise
Client can’t apply for bill to be assessed by court if formalities complied with.
However court may set aside or reduce remuneration if amount charged is unfair or unreasonable.
Requirements for non-contentious business agreement to be enforceable
- In writing
- Signed by client
- Contain all terms (inc whether disbursements and VAT included)
Contentious business agreement formalities
- State its a contentious business agreement
- Writing
- Signed by client
- Contain all terms
Payment under contentious business agreement
Paid through gross sum, hourly rate, salary etc BUT NOT CONTINGENCY FEE
Can a client apply for court assessment of costs under contentious business arrangement?
No
- except where agreement states that solicitor paid at hourly rate
But court may set aside/reduce fees if unfair or unreasonable
(nb court setting aside is different to assessment of costs - that makes it make more sense)
When must costs officer involve the SRA?
Reduced bill by over 50%
(costs officer assess a solicitor’s bill in a NON contentious matter)
What should you do when get commission due to client instructions?
- Pay to client
- Offset against fees
- Pay where client agrees
(ideally deal with in CCL)
CFA success fee
- does client need to give INFORMED consent?
- can you have a standard success fee used for all cases?
- yes need informed consent
- no - need to consider individual circumstances
(e.g. couldn’t have 100% as standard without considering individual risk)
In what time period should client apply to court to have bill assessed?
In first month
because if do at this early stage, leave of court not required and order to assess bill automatically made
