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

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-

o0, and regard must be had to the many Statutory

nactments governing the administration of Justice

Voder our legal system. The most important enactment

of course the Courts of Justice Act 1971, which

*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

jent. I

other words the retainer is the foundation on

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,

°licitor contracts to finish the business for which

js retained. The rule applies both to contentious

siness and non-contentious business.

rmination °f

retainer is one to which con-

siderable care should be given by the solicitor so that

may relieve himself of responsibility and also re-

costs to which he may be lawfully and reason-

jV entitled up to the date of such termination.

. ° f

r as the client is concerned he may as a general

th ° f i

a n

his solicitor when he wishes to do so, and

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

solicitor must see that his name is inserted on the

ecord immediately.

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

f u l l

Y dealt with in Cordery on Solicitors

to Edition.

. PRIVILEGE OF COMMUNICATION

dir

t t e n a n

o r a

I communication which pass

r e

% or indirectly between client and solicitor in his

^oiessional capacity, and in legitimate course of pro-

visional employment, are privileged in the client's

U r

j though not relating to a cause in progress or in

ntemplation at the time when they are made. This

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;

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.