The Retainer Flashcards
What must the solicitor do in terms of identifying the client they are working for?
Client identity must be known
Solicitor must take a proportionate approach to finding out their identity, which varies based on various factors, such as size of the firm, number of fee earners, the client profile
If a third party engages the solicitor on the client’s behalf, solicitor must satisfy themselves that this third party has proper authorisation to provide instructions
When can a solicitor refuse instructions from a client?
If a solicitor believes the instructions don’t represent the client’s wishes, the solicitor must not act unless they have satisfied themselves that they do
If they have a conflict of interest which prevents them acting in client’s best interests or if they lack time, expertise or resources to act properly
If accepting instructions would result in a breach of Code of Conduct, they must refuse
Where a solicitor suspects instructions don’t represent a client’s genuine wishes, what must they do?
If they suspect duress or undue influence, the solicitor would need to take appropriate steps to check that these are the genuine wishes of the client; such as by interviewing the client alone
Where there is no evidence of duress or undue influence, but the client insists on acting in a way that is disadvantageous to them, explain the consequences of the instructions and ask the client if they want to proceed, and for this advice and consent to be documented
Solicitors should be careful before accepting ‘significant’ gifts. Would amounts to ‘significant?’
(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
Law Society Practice Note says carefully consider gifts over £500
What are some of the key duties a solicitor owes to a client during the retainer?
Duty of reasonable care and skill – solicitor can be sued for a breach of contract if this is breached
Duty to act in client’s best interests
Duty not to take advantage of the client
Confidentiality – duty continues after the retainer has terminated and after client’s death, it is owed to their PRs
Disclosure – solicitor must disclose all relevant information to the client, regardless of the source
When can a client terminate the retainer?
Client can terminate at any time for any reason, but likely liable for fees for work done up to that point
When can a solicitor terminate the retainer?
(a) If complying with the client’s instructions would involve the solicitor in a breach of the law or the requirements of professional conduct;
(b) If the solicitor cannot obtain proper instructions from the client;
(c) If 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).
Reasonable notice of termination must also be given
Termination should be confirmed in writing
When a client refuses to pay a solicitor, what can they do?
Solicitor could hold onto a client’s papers in their possession until their fees are paid, but they could accept an undertaking to pay the costs instead of exercising the lien
A lien is a legal right that allows a creditor to retain a debtor’s property until payment
