The Retainer Flashcards

1
Q

Whats the primarily purpose behind a solicitor identifying who they are acting for in relation to matter?

A

To prevent solicitors inadvertently becoming involved in fraud

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2
Q

What was the case study outcome of fraudulent sellers?

A

Although the buyers solicitors were not negligent, they were liable for the looses because they received money on trust for genuine completion.

The Code was changed and now expressly provides that the seller’s solicitor holds the purchase moneys on trust for the buyer and is under a fiduciary duty not to deal with that money other than in accordance with the terms of the Code

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3
Q

How do solicitors mitigate fraud risks?

A

To mitigate fraud risks, solicitors must verify the identity of parties involved and adopt proportionate measures suggested by the SRA. Additionally, solicitors are obligated under the Money Laundering Regulations 2017 to obtain satisfactory evidence of their clients’ identity

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4
Q

Can Third party give instructions to the solicitor on behalf of the client? e.g clients daughter

A

solicitor only acts based on instructions directly from the client or from someone authorised to provide instructions on behalf of the client.

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5
Q

What if solicitor conducts proceeding without that authority?

A

Solicitor will be personally liable for the cost incurred

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6
Q

Is a solicitor free to decide whether to accept or decline instructions to act for a particular client?

A

Yes, but cannot unfairly discriminate by allowing their views to affect their professional relationship and the provides they services

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7
Q

What should a solicitor do if they have reason to suspect that the instructions received from client or someone authorised on their behalf do not represent clients wishes? e.g. Duress or undue influence and vulnerable clients

A

Solicitor must not act unless they have satisfied themselves that they do

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8
Q

Example: solicitor has to act for a client who lacks mental capacity. What should they do?

A

solicitor is subject to the overriding obligation to protect the client’s best interest.

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9
Q

What would be advisable if there is no evidence of undue influence but Client insists on acting in a way which appears to be to the disadvantage?

A

To explain the consequences at the instructions and ask client whether they wish to proceed and for this advice and consent to be documented

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10
Q

Gifts from client?

A

Solicitor should be careful when any gift is more than £5OO
Needs to consider:
- is it worth more than 1% of clients current estimated net estate
- it might become valuable at some point, especially after death of client
-It provides benefit to un individual which is more valuable than his relationship to the deceased reasonably justifies

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11
Q

Can client sue solicitor for duty of reasonable care and skill implied in the term into the retainer?

A

Yes, solicitor may be sued for breach of contract if the term is breached.
However, implied term does not apply to advocacy services provided before a court room.
Nevertheless, 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

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12
Q

whats the relationship between solicitor and client?

A

fiduciary relationship -> (common law) one party must act in the best interests of the the other party

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13
Q

Duty to act in best interest?

A

solicitors have broader obligations to safeguard money and assets entrusted to them by clients and are not allowed to hold client money unless operating within an authorized body

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14
Q

Does the solicitor need express or implied authority to deprive from the retainer to bind the client?

A

Express instructions/authority

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15
Q

Can a client terminate the retainer?

A

Can at any time for any reason but client likely to be liable to pay solicitors fees for work done up until the point of termination -> solicitor may require their costs to be paid prior to forwarding the file to the client

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16
Q

Can a solicitor terminate the retainer?

A

Solicitor will a good reason. Needs to provide with reasonable notice of termination (unlikely to be acceptable to stop acting right before court hearing)

17
Q

Can the law terminate the retainer?

A

Yes, in certain circumstances,

e.g solicitor declares bankrupt or either party loses mental capacity after the retainer has commenced

18
Q

What are the responsibilities on termination

A

(Good practice) solicitor should confirm to client in writing that retainer has been terminate, explain, where appropriate the clients options for pursing the matter and take steps to deal with any property of the client which may be held by the solicitor

19
Q

What is advisable for a solicitor to do when terminating a retainer?

A

To retain a copy of the file - to defend them from any future claims of negligence

20
Q

What is a lien and how can solicitors use it?

A

lien grants a creditor the legal right to retain a debtor’s property until payment is made.

Solicitors can use a lien to withhold property, like client papers, until their fees are settled, but they can also accept an undertaking to pay costs instead.

21
Q
A

the court can compel a solicitor to return papers to the client, with similar authority held by the SRA

Solicitors can get a charging order, which lets them ensure they get paid for their work by using any personal property that’s been recovered or kept during legal proceedings.

22
Q
A