29 January 2016
Tell Your Solicitor Exactly What You Need and Understand the Retainer in Place
Solicitors instructed on a limited retainer do not owe a duty of care to their clients to advise on the broader implications of their work, the Court of Appeal recently decided.
The decision in the case of Minkin v Landsberg (practicing as Barnet Family Law) reiterates a long established principle, but acts as a useful reminder to solicitors and clients – both current and prospective – to have a clear understanding of the work to be undertaken by the solicitor.
Sharon Minkin, an accountant, instructed the defendant solicitor to put a consent order into an acceptable form so that it might be approved by the court, following problems that arose surrounding a consent order covering the financial arrangements of her divorce.
Minkin’s instructions did not include a duty to advise upon the merits of the agreement she had reached with her husband, and in fact she had already disregarded advice from her previous solicitors to not compromise her financial remedy claim against her husband in such terms.
The consent order, as drafted by the defendant solicitor, was later approved by the court.
It is reported that Minkin subsequently regretted entering into the consent order, alleging the settlement was less advantageous than it might have been, and commenced an action in negligence on the basis that the defendant solicitor failed to advise or warn her against entering into the consent order.
A central issue became the scope of the defendant’s solicitor’s retainer and the extent to which a solicitor can provide unbundled legal services.
The Court of Appeal, in dismissing Minkin’s appeal, agreed that the retainer between Minkin and her solicitor was limited to putting into effect the terms of the agreement she had reached with her former husband so that the agreement might be approved by the Court. It did not include a duty to advise on the merits of that agreement, that the agreement may be unfair or to carry out investigations into the former husband’s means.
Furthermore, the Court of Appeal considered that advice on the merits of the agreement could not be considered to be reasonably incidental to the limited retainer as Minkin was an intelligent woman, well versed in litigation and her correspondence demonstrated she had a good grasp of the issues in hand. Minkin had also previously obtained legal advice about the proposed order, warning her against entering into an order in such terms, but she chose to ignore that. Minkin wanted to conclude the agreement in the form of an order, and wanted to submit it to the court quickly.
What might be implications of the Minkin decision for you?
The decision in Minkin does not establish any new principle but rather reiterates the importance of discussing with your solicitor the work you require to be carried out and what you require advice on.
Solicitors are able to offer their services “unbundled”, i.e. one service or selection of services rather than their full range of expertise. For instance, you may instruct your conveyancing solicitor to solely effect a transfer of a property and not to advise on the risks associated with the purchase by carrying out searches or due diligence. Similarly, you may instruct your litigation solicitor to compromise terms of settlement in an agreement or consent order, but not to consider the merits of any agreement or enforceability of the same, if you were happy to conclude negotiations yourself. This may also depend upon your familiarity with legal or commercial processes.
A solicitor is under an obligation to define their retainer with you in their engagement letter, to set out clearly the work that they will be undertaking, as well as considering with you the associated costs and the benefit to you of that work. This should be your first port of call when considering the extent of the retainer in place.
If you are new to instructing solicitors, you are well advised to explain your unfamiliarity with the legal process or any wider commercial or economic concerns to your solicitor. If your solicitor is unable to advise you, they will point you in the direction of a professional who can offer such advice.
If you are in doubt as to the extent of your retainer in place, and what work you have instructed a solicitor to carry out on your behalf, you should review the instructions you have provided and any retainer documentation you may have received from the firm. Furthermore, it is advisable to discuss with your solicitor so that you may clarify the nature of the retainer, and ensure any clarification or agreement is committed to writing.
When you instruct a solicitor to work on your behalf, make sure you tell them exactly what it is you would like them to do from the outset. A failure to do so may mean that the retainer is limited and this could have detrimental impact later on. No matter what you ask your solicitor to do, they still have to act in a professional manner. If you believe that you did not receive the service that you instructed the solicitor to carry out, and this has had a detrimental impact, then you may have a valid claim for professional negligence.
If you believe that you have not received the correct advice or that a solicitor has not acted in your best interests in carrying out your instructions, please contact Slater and Gordon’s expert team of professional negligence lawyers. Call us on freephone 0808 175 8000 or contact us online and we will arrange a convenient time to call you to discuss matters.
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