The Retainer Flashcards
What is a retainer?
This is the contract between a solicitor and a client
What are the terms of the retainer?
Many of the terms will be implied into the contract, by law or professional conduct.
Must make sure the client understands what the solicitor has AGREED to UNDERTAKE
Important that clients expectations are managed early on.
Why must you identify the client in a retainer?
Must identify, as the solicitor owes many duties to the client.
This is also to prevent solicitors inadvertently becoming involved in fraud
Can solicitors receive instructions from a third party on behalf o a client?
They may, yes.
Alternatively, a solicitor may receive instructions from one client, purporting to instruct the solicitor on behalf of a number of clients.
The code of conduct provides that a solicitor ONLY acts for clients on instructions from the client.
Can solicitors decline/refuse to act?
Yes, you can.
A solicitor may decline to act for a client who is KNOWN for not paying their legal fees.
A solicitor, as it is a business, is generally free to decide whether to accept or decline instructions to act.
However, this discretion is limited by the requirements of professional conduct and general law.
What should a solicitor do if they have reason to suspect that instructions they have received do not represent the clients wishes?
The solicitor must not act.
This is duress or undue influence.
If elderly, language or learning difficulties, or health issues, this may e undue pressure from others.
A solicitor must take appropriate steps to satisfy themselves that the instructions represent the clients genuine wishes.
When must the solicitor decline instructions in order for best interests of the client?
Because of principle 7 - interests of client, a solicitor must not accept instructions in circumstances where the solicitor will be unable to meet this fundamental requirement.
Eg. If they have an own interest conflict, or a confluct of interest. If solicitor holds material confidentual information that would be relevant to a new instruction.
Can solicitors keep gifts from clients?
A solicitor should carefully consider any gift worth more than £500, to determine if it is considered significant in the particular circumstances.
When is a gift from a client considered significant?
If the gift is worth more than 1% of the clients current estimated net estate
If it might become valuable at some point (after the death of the client)
It provides a benefit to an individual which is more valuable than their relationship to the decreased reasonably justifies.
What duties does the client owe throughout the retainer?
Duty of reasonable care and skill (common law)
Duty to act in clients best interests (principle 7)
Duty not to take advantage of the client
Confidentiality
Disclosure
Client care and costs
Which does the solicitor owe a duty of reasonable care and skill throughout the retainer?
S 13 of supply of goods and services act, provides that a supplier of services will carry out those activities with reasonable care and skill.
This is IMPLIED into the retainer.
What is the clients authority during a retainer?
Solicitor may derive authority from the retainer to bind the client in certain circumstnaces.
This authority can be limited express by the client, in the terms of the retainer.
How can the retainer be terminated by the client?
Can be terminated at any time, for any reason.
However, the client is likely to be liable to pay the solicitors fees for work done up until the point of termination.
When can a solicitor terminate a retainer?
Must be able to JUSTIFY a decision to terminate the retainer, having regards to their obligations under SRA.
Client must be provided with reasonable notice of termination
What are examples of good reasons where a solicitor can terminate a retainer?
Complying with clients instructions would result in a BREACH OF LAW
Solicitor cannot obtain proper instructions from client
There has been a breakdown in confidence within relationship
