Commencing to Act
The decision of a solicitor to accept instructions from a client is a matter of his discretion. However, he should not discriminate unfairly between members of the public. He should not refuse to act on a basis which would constitute discrimination.
Solicitors are recommended to provide a client with a copy of the firm’s terms and conditions. Where practicable, he should confirm the instructions in writing and set out in general terms the services he proposes to provide. There is no obligation for the client to accept the terms of business in writing, although it is good practice to do so.
A solicitor should not accept instructions that he knows he will be unable to carry them out adequately. This may be from the pespective of expertise or time resources. Where a solicitor can or should not accept the instruction, he should inform the person immediately preferably in writing of his decision not to act.
A solicitor should generally take instructions directly from a client. Where they are taken from a third party, they should be confirmed with the client. A solicitor who is employed in an organization may receive instructions from one or more of the employees in the organization.
The solicitor must inform the client as soon as reasonably practicable regarding charges which will be incurred for the provision of legal services. Charges include professional fees and outlay. This is a requirement under the Solicitors Act and under the Legal Services Regulation Act.
Where costs are charged on a time basis, it is recommended that the solicitor keeps the client informed on a regular basis of the time spent on the case or matter. Time records must be maintained and be available for inspection by the Law Society in the event of the dispute=-
A solicitor may charge fees in advance, as they arise or in arrears. The solicitor may refuse to act if the client does not agree to the terms by which the solicitor is to be paid as communicated at the commencement. The solicitor may terminate a retainer if the client does not abide by the payment terms agreed.
Legal Aid Panel
Where a solicitor is on the Legal Aid Panel and is instructed by a defendant or nominated by a court on behalf of the defendant, he must comply with instructions unless he has reasonable grounds for refusing to act in that particular case for the particular client. This is subject to the agreement of court where necessary. There are legislative requirements regarding the Civil Legal Aids scheme, with which the solicitor must comply.
Dealings with Clients
A solicitor must be open, frank and honest in all dealings with his clients. He must act with the utmost skill and care. The standard expected is that of reasonable care and skill which should be exercised by a solicitor who has the relevant expertise. The relationship is a fiduciary relationship and certain consequences follow that are set out in different chapters.
Solicitor in some instances owes a duty of care to third parties when acting in a case or transaction. The circumstances are relatively limited, but arise for example where a solicitor is acting for a seller in a conveyancing matter and provides information on which he knows a third party will reasonably rely.
A solicitor should as soon as practicable, explain to his client the procedures to be followed in any particular matter and the length of time they are likely to take. He should keep the client informed of the progress of the matter and where appropriate, copy relevant correspondence to the client where it is important to notify the client of a particular matter or to confirm or clarify details, where appropriate, in n writing.
A solicitor should reply promptly to letters written to him on a professional basis He should answer correspondence from other solicitors including those making enquiries on behalf of a client.
A solicitor must have a system in place for dealing with complaints in particular in relation to dealing with the client;s file. Clients should be advised of actions that may be taken in relation to the complaint.
At the conclusion of a matter, the solicitor must account to the client for monies received setting out details of the charges.
Where a client lacks mental capacity, a decision must be made in relation to issues about which the client should give instructions having regard to his level of understanding and the complexity of the situation or matter. The solicitor should take instruction from the client where he appears to have the requisite capacity.
A solicitor has a special duty of care to vulnerable clients. He should be aware of the characteristics that make the client vulnerable, including youth, inexperience, lack of business acumen and the lack of ability to make an informed and independent decision.
In particular a solicitor should be alert to the danger of clients being forced to give money or assets to another,being denied access to money or assets, having signatures forged or being pressed to make or change a will or power of attorney.
Where a solicitor suspects that a client may be under undue influence or duress, he should not accept instructions. In cases of suspected duress or undue influence she should see the client alone.
Conciliation & ADR
In family law cases, the practitioner should assist and should have the requisite skills to assist, the parties to reach a constructive settlement of their differences. The welfare of children should be a priority. A conciliatory approach should be adopted.
In relation to litigation, the solicitor should acquaint himself with alternative dispute resolution. This is now a legal requirement under the Mediation Act 2017. Solicitors are encouraged to recommend their client to use ADR where appropriate. The solicitor should not, without good reason characterize a suggestion of mediation or settlement as a sign of weakness.
A solicitor should not terminate an appointment without good cause and on reasonable notice. Where a client’s solicitor determines that he cannot continue to act, and it is reasonable for him to so do, he should give as much notice as possible of his intention to cease to act. He should confirm that he has ceased to act in writing. Procedures are applicable to coming off the record, if court proceedings have been commenced.
Termination of Retainer
If the solicitor terminates his appointment for good cause and gives reasonable notice he is entitled to be paid for work done. In the case of instructions accepted on a contingency basis, it may be implied that the solicitor should continue to have the prosecution of the case. If the retainer is terminated, the solicitor is entitled to be paid for work done.
A retainer may be terminated where a client has been asked to put the solicitor in funds in accordance with the terms of business, and the client has refused to do so.
A solicitor may be forced to cease to act for a client because he refuses to accept advice given and the circumstances are such as to destroy the basis of the relationship between the solicitor and client. The solicitor should cease to act for a client where the client refuses or fails to give further instructions.
Where a client suffers a permanent loss of capacity, the retainer is terminated by law and the solicitor may not take further instructions.
A solicitor who has accepted instructions to appear in court for a client who is in custody may not withdraw without permission from the court before which the client is scheduled to appear. A client may change his solicitor when he wishes to do so but is liable to the solicitor for reasonable charges incurred for legal services properly provided.
Solicitors are required by regulation to undertake continuing professional development annually.