It is important to be aware of the extent of your solicitor’s duties if you want to make a claim in negligence.
Generally a high standard of competence is expected of a solicitor but judges acknowledge that they must be cautious not to impose duties that go beyond the scope of what the solicitor has been requested and undertaken to do.
A solicitor “is not a general insurer against the client’s legal problems”.
The recent appeal case of Minkin considers the scope of a solicitor’s duty and demonstrates how this duty may be limited in certain circumstances.
Assets following a divorce
Minkin involved a marital dispute over the division of assets following a divorce. The present case was an appeal by the claimant in claim against her solicitor following advice that was given in those divorce proceedings. The professional negligence claim failed at first instance but an appeal was made.
Mrs Minkin was an experienced accountant who negotiated a settlement of all financial issues with her former husband. Subsequently, she had doubts about the settlement and decided to consult a solicitor who advised that the agreement was not favourable to her. The claimant alleged that the husband had bullied her into settlement and her solicitors wrote to the husband’s solicitors in this regard. Shortly afterwards, the husband and wife attended court to present the draft consent order however it was rejected for poor drafting. The claimant therefore instructed the defendant, a different solicitor, to amend a draft consent order so that it was in a form likely to be approved by the Court. The defendant carried out these instructions and filed the consent order.
However Mrs Minkin subsequently regretted the consent order and brought a claim against the defendant for professional negligence for failure to advise or warn her against entering into the consent order.
The defendant said “I was required only to redraft the poorly drafted order” and explained that in essence the client came to her with an agreed deal, after advice from the previous solicitors, that she had no background information but she documented the deal correctly. Thus she should not be blamed for a bad deal.
The appeal court set out a number of factors to be considered in relation to the duty of care owed.
- A solicitor's contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake.
- It is implicit in the solicitor's retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out.
- In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client.
- In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told that which he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client.
- The solicitor and client may, by agreement, limit the duties which would otherwise form part of the solicitor's retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.
In Minkin, the court decided that the claimant was an intelligent woman who knew her own mind and understood the legal issues, although a solicitor would be under a duty to take a broader view of their duties where the client is less experienced.
Ultimately the claimant’s appeal was dismissed because her solicitor was under a limited duty to advise; she was instructed to re-draft the consent order to ensure that it would be approved by the court and she fulfilled this obligation.
The courts are clearly trying to tread a line between appropriate duties of care and burdening solicitors with duties which are neither practicable nor profitable for solicitor or client. Lady Justice King was very clear on the difficulties that arise when clients unquestionably need advice on complex drafting but cannot necessarily afford to pay for a full advice service:
“There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care requiring them to consider, and take it upon themselves to advise on aspects of the case far beyond that to which they believe themselves to have been instructed. It goes without saying 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.”
The solution, it seems, is for solicitors to be clear in their written retainer and leave the client in no doubt about the extent of services being provided. Even though on this occasion the court exonerated the solicitor, on any given facts the outcome could have been different.