LLB197 Lecture Notes - Lecture 3: Contra Proferentem, Victorian Civil And Administrative Tribunal, Alfred Denning, Baron Denning
TOPIC 3: Duty to the Client
Retainer = a contract between a law practice and a client for the provision of legal services by the law
practice (NB – Law practice can be sole practitioner multi-partner firm, incorp practice barrister )
– Governs the scope of the lawyer/client contract
• Upon whose instructions the lawyer is to act
• The scope of authority in carrying out the instructions
• The scope of the lawyer’s duties
Retainer
– May be created: in writing, Orally, Inferred from the conduct of the parties
– Both express and implied terms
– General rules of contract apply to construction
– See pp. 243-245 text – when will lawyer/client relationship be established? Will depend on facts/
circumstances, what was said. (fiduciary relationship based on trust and integrity).
– Importance of confirming status of relationship at outset (inc whether or not lawyer is accepting retainer to
act) and what each party is expected to do
Proof of retainer
Written retainer
- not essential, but best practice (usually set out in a ‘costs agreement’)
Oral retainer
-person alleging retainer bears the burden of proof
- ‘the word of the client is to be preferred over the word of the solicitor’…and a lawyer who does not
obtain a written retainer ‘has only himself to thank for being at variance with his client over it and must
take the consequences’
-Griffiths v Evans [1953] 1 WLR 1424 at 1428 per Denning LJ
Implied retainer
– Follows basic contract rules of formation
– Relates to existence – terms must then be proved
– Onus of proof rests on person who alleges the existence of a retainer. Regard may be had to:
• Lawyer’s file and diary notes
• Nature of work conducted
• Who instructed the lawyer
• Who is liable for the lawyer’s charges
• Where a contractual relationship has existed in the past
McGeoch v Hendriks & Ors [2007] NSWSC 311
-‘the question whether [M] expressly retained [H] as his solicitor depends upon findings of fact
sufficient to constitute a contract between the two’
-‘the extent of the fiduciary obligations owed by a solicitor to his or her client depends upon the scope
of the applicable retainer’
-‘a professional engagement may be implied if the relevant relationship is established’
-‘He [H] did not advise them to seek independent advice. And when asked for advice…by [M]… freely
gave it. … He thereby assumed a responsibility for that advice. He knew [M] was relying on him to
provide appropriate advice and in doing so to look after his interests.’
Solicitors can choose client
No obligation to take on any client.
-Must decline to take on a matter if not competent to act or if conflict between solicitor and client
interests. Can refer to another solicitor Competence
-Rule 4.1.3
-Un v Schroter [2002] NTSC 2 at [58], Vulic v Bilinsky (1983) 2 NSWLR 472, at 483.
Barristers – r17 Uniform Conduct Rules (Barristers)
Cab rank principle “Servants of all yet none”. They must accept a brief from a solicitor. Can be used to get
monopoly on expertise (See pp.249-251 text)
Barristers must decline a brief in situations set out Rules 101, 103 and 104) including:
-Independence
-Competence
May decline for number of reasons (r 105) inc: Proper fee unavailable, Not adequate time
Costs & Costs Disclosure – Uniform Law Pt 4.3 text pp.252-258)
-S. 172(1) – law practice must charge costs that ‘are no more than fair and reasonable’; Fair and
reasonable determined having regard to matters at 172(2) including:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Retainer = a contract between a law practice and a client for the provision of legal services by the law practice (nb law practice can be sole practitioner multi-partner firm, incorp practice barrister ) Governs the scope of the lawyer/client contract: upon whose instructions the lawyer is to act, the scope of authority in carrying out the instructions, the scope of the lawyer"s duties. May be created: in writing, orally, inferred from the conduct of the parties. General rules of contract apply to construction. Will depend on facts/ circumstances, what was said. (fiduciary relationship based on trust and integrity). Importance of confirming status of relationship at outset (inc whether or not lawyer is accepting retainer to act) and what each party is expected to do. Not essential, but best practice (usually set out in a costs agreement") Oral retainer person alleging retainer bears the burden of proof. Griffiths v evans [1953] 1 wlr 1424 at 1428 per denning lj.
