Advising the client

PI_John_Morris_Collins By Mr John Collins

 

  1. The result of the virtual destruction of the legal aid system is that inevitably people are not merely trying to represent themselves before the court, but they are trying to mitigate the cost to themselves by simply using solicitors and indeed barristers for some limited functions. It is certainly better that they should do at least this, rather than make use of the paid McKenzie friends who have made their appearance recently. But the difficulty which is likely to arise is the extent to which the professional adviser is taking on a burden over and above that which he or she intends to take on.
  2. This has been highlighted in a recent family case in the Court of Appeal, Minkin v Landsberg (t/a Barnet Family Law) [2016] 1WLR 1489. Although it dealt with limited retainer cases in family matters, as Jackson LJ pointed out, the same problem may well be arising in personal injury cases because the solicitors are also being asked to deal with limited aspects of a case.
  3. Minkin v Landsberg arose from a divorce with disputes about the financial consequences. Mr and Mrs Minkin finally reached agreement about the division of their assets and prepared a home-made document. Then the wife came to the conclusion that she had entered into the agreement under duress. Then, having withdrawn her consent, she consented. A draft Consent Order was presented to the court for approval. The District Judge refused to approve the Consent Order. He adjourned the matter for a proper order to be drawn up. Mrs Minkin went to her second firm of solicitors. They drew up a draft Consent Order in cooperation with the solicitors acting for Mr Minkin. The court approved the draft Order and made a formal Order in the terms of the draft. Thereafter endless problems arose and litigation. Mrs Minkin sued the second solicitors for failing to advise her. The defendant solicitor said that she had carried out all that she had been required to do. The judge upheld that contention, as did the Court of Appeal. The courts held that because it was clearly agreed that the solicitor was acting under a limited retainer, she was not under any duty to give further advice or warnings.
  4. King LJ pointed out that this case illustrated the problems solicitors face in relation to instructions to act on the limited retainer basis. The last thing they want is to find that a comparatively small job, such as drafting a document, has rendered them liable to take on a duty of care to advise on aspects of the case far beyond that in which they believe themselves to be instructed. Accordingly, she recommended that “Where a solicitor acts upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client’s specific instructions”. This had not been done in Minkin v Landsberg and the litigation was the result.
  5. In drafting such client care letter and formal written retainer, one has to bear in mind that if it is not precise the solicitor may be caught by the principle that it is implicit in a solicitor’s retainer that he/she would proffer advice which is reasonably incidental to the work that he/she is carrying out. (I quote Jackson LJ at paragraph 38.)
  6. That seems to me to be an indication of the limits to which even careful drafting of the necessary client care letter can go. Whilst it is plain that that should be done as is advised by the Court of Appeal, I do not think it can be regarded as a panacea for all problems. In the end, a solicitor may well find that notwithstanding the limitations imposed by the client care letter, he must still recognise that in common sense he must give advice over and above carrying out the particular function which he has agreed to carry out. In other words, I do not think that merely carrying out the necessary steps of clarifying and defining the work that the solicitor will do is going to relieve the solicitor (and the same of course applies to barristers) if the situation arises where advice really is called for and the solicitor can reasonably see that, but fails to take the necessary steps to give that advice. In those circumstances I fear that not even the precautions advised by the Court of Appeal would prove an adequate defence.
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