The Retainer Flashcards
Whats the primarily purpose behind a solicitor identifying who they are acting for in relation to matter?
To prevent solicitors inadvertently becoming involved in fraud
What was the case study outcome of fraudulent sellers?
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
How do solicitors mitigate fraud risks?
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
Can Third party give instructions to the solicitor on behalf of the client? e.g clients daughter
solicitor only acts based on instructions directly from the client or from someone authorised to provide instructions on behalf of the client.
What if solicitor conducts proceeding without that authority?
Solicitor will be personally liable for the cost incurred
Is a solicitor free to decide whether to accept or decline instructions to act for a particular client?
Yes, but cannot unfairly discriminate by allowing their views to affect their professional relationship and the provides they services
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
Solicitor must not act unless they have satisfied themselves that they do
Example: solicitor has to act for a client who lacks mental capacity. What should they do?
solicitor is subject to the overriding obligation to protect the client’s best interest.
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?
To explain the consequences at the instructions and ask client whether they wish to proceed and for this advice and consent to be documented
Gifts from client?
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
Can client sue solicitor for duty of reasonable care and skill implied in the term into the retainer?
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
whats the relationship between solicitor and client?
fiduciary relationship -> (common law) one party must act in the best interests of the the other party
Duty to act in best interest?
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
Does the solicitor need express or implied authority to deprive from the retainer to bind the client?
Express instructions/authority
Can a client terminate the retainer?
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