The Gazette 1974

RIGHTS, DUTIES AND OBLIGATIONS OF SOLICITORS A LECTURE TO APPRENTICES % PATRICK C. MOORE, Vice-President, 1972-'73

This topic covers a very wide field and I intend to unit my observations primarily to the duties and obliga- tory of solicitors and primarily from the practical Point of view. RIGHTS As to solicitors' rights these are mainly contained in Statutory Provisions of the Solicitors' Acts 1954- y o0, and regard must be had to the many Statutory e nactments governing the administration of Justice Voder our legal system. The most important enactment ls of course the Courts of Justice Act 1971, which e *tends to solicitors a right of audience in all Courts. J* must be pointed out that solicitors' rights and privileges arise only when he is retained as such by a cl jent. I n other words the retainer is the foundation on lc fi the relationship of solicitor and client rests. With- out a retainer that relationship cannot come into being. I he retainer is defined in Cordery on Solicitors, 6th edition, page 65 as follows : A retainer is a contract whereby in return for the Rent's offer to employ the solicitor, the solicitor ex- pressly or by implication undertakes to fulfil certain l i g a t i o n s ." Thus "a gentleman's agreement" will not suffice. See J-H. Millar & Son re Percy BiUon Ltd. (1966) 2 All ^•R-, 894. In the absence of any agreement to the contrary the general rule is that when a client retains his solicitor, , e . s °licitor contracts to finish the business for which , e js retained. The rule applies both to contentious siness and non-contentious business. 'H te rmination °f a retainer is one to which con- siderable care should be given by the solicitor so that e may relieve himself of responsibility and also re- ?Y er costs to which he may be lawfully and reason- jV entitled up to the date of such termination. . ° f a r as the client is concerned he may as a general th ° f i a n g e his solicitor when he wishes to do so, and e client may terminate a retainer at any time and *Ploy whom he chooses. See Watts v. Official Solicitor 1 All E.R., 249, C.A. As you are aware in litigation change must be effected n a c c o r dance with the relevant Rules of Court and the w solicitor must see that his name is inserted on the ecord immediately. s I he authority, the liability and the disabilities of a k j . ^dor when a contract of retainer has been esta- 6tí! c a r e v e r V f u l l Y dealt with in Cordery on Solicitors to Edition. . PRIVILEGE OF COMMUNICATION dir w " t t e n a n d o r a I communication which pass D r e f c % or indirectly between client and solicitor in his ^oiessional capacity, and in legitimate course of pro- visional employment, are privileged in the client's c V ° U r j though not relating to a cause in progress or in ntemplation at the time when they are made. This c e J s for the protection of the client to enable him to is p . unreservedly in his legal adviser. The privilege "mited to the extent that, no Court can be called

upon to protect communications which are in them- selves part of a criminal or even unlawful proceeding, but in order to displace the prima facie right of silence by a witness who has been put in the relation of pro- fessional confidence with his client, before that confi- dence is broken, there must be some definite charge of something which displaces the privilege. (Per Halsbury L.C.) Since the privilege is that of the client, it is actively enforced in Court as well as against the solicitor's clerk or partner as against the solicitor himself, and a motion for an injunction to restrain the disclosure will lie, and may perhaps be heard in private. It is important to note that the privilege is the privi- lege of the client, not the solicitor. If the client chooses to withdraw the veil of secrecy the law interposes no further difficulty. NEGLIGENCE Negligence has been defined as the absence of such care as it was the duty of the defendant to take. The fact that a professional man has been negligent, or that his client has suffered damage, does not of itself give rise to a cause of action, for negligence alone does not give a cause of action, and damage alone does not give a cause of action : the two must co-exist. But if negli- gence constitutes a breach of contract presumably there must be a cause of action, if only for nominal damages. Actionable negligence may be said to possess three essential ingredients: the complex concept of d u t y: breach of the duty, and damage suffered by the person to whom the duty was owing. In the case of a solicitor and his client such negligence involves : (a) a legal duty towards the client to exercise care or skill, or both; (b) a breach of that duty by the solicitor, that is a failure to attain the standard of care and skill prescribed by law; (c) actual loss to the client as the direct result of such breach. Where there is professional negligence on the part of the solicitor, the client's cause of action is breach of contract and not tort. See Baggot v. Stephens, Scanlon & Co. (1946) 3 All E.R., 577. Although circum- stance may, in the absence of any contract or fiduciary relationship, create a special relationship between the advisor and the person advised sufficient to impose upon the advisor a duty of care in the giving of advice, the presence of a contract or fiduciary relationship in which an extensive duty of care is expressed or implied makes it unlikely that the client will need to rely upon the existence of any lesser duty imposed by law. The question whether the liability arises in contract or tort may be academic in so far as solicitors are con- cerned, but it is of importance to them that the damages recoverable are assessed on different principles. It has already been stated that the relationship of solicitor and client is created by the retainer given by the client to, and accepted by the solicitor and that the retainer is a contract between the parties. 25