27 / 300
OBLIGATIONS ARISING
O l
I
<
>1
RETA I NER
1. To
be
Skilful and Careful
At Common Law a solicitor contracts to be skilful and
careful, for a professional man gives an implied under-
taking to bring to the exercise of his profession a reason-
able degree of care and skill. It follows that this under-
taking is not fulfilled by the solicitor who either does
not possess the requisite skill, or does not exercise it. It
seems imaterial whether the solicitor is retained for re-
ward, or volunteers his services, or whether or not he
has a practising certificate in force at th etime.
The standard of care usually adopted is that of the
reasonably competent solicitor but if the solicitor is
consulted as a specialist the standard of a specialist
may be expected. Ignorance of the law is no excuse but
as was said by Abbot C.J. "No attorney is bound to
know all the law; God forbid that it should be imagined
that an attorney, or a counsel, or even a judge is bound
to know all the law; or that an attorney is to lose his
fair recompense on account of an error, being an error
as a cautious man might fall into"
Montriou v. Jefierys
(1825) 2 C.P. 113.
Although a solicitor is not bound to know all the
statutes* there are some, e.g., Statutes of Limitations,
1957, which it is his duty to know.
Although a solicitor is not liable for a mistake as to
the construction of a doubtful statute difficult to in-
terpret, or unexplained by decisions, he may be liable
if he fails to realise that the statute presents difficulties
of interpretation. On the question as to how far a solici-
tor may be liable for negligence for delay, it has been
said that it could be wrong to hold a professional man
guilty of negligence because everything is not dealt
with by return of post. See
Potter v. London
Transport
Board
(1965)—109 Solicitors' Journal, 233.
2. To protect the Clients' Interest
Since the solicitor's duty to his client is based on the
contract of retainer, he owes no duty of care to anyone
other than his client, save where he is liable as an Officer
of the Court or where some special relationship exists.
The exact scope of the solicitor's duty to protect his
client's interest is difficult to define, but according to
Scott L.J. a solicitor should at least be able to :
(a) carry out his instructions in the matters to which the
retainer relates, by all proper means;
(b) consult with the client on all questions of doubt
which do not fall within the express or implied
discretion left to him; and
(c) keep his client informed to such an extent as may
be reasonably necessary. See
Groome v. Crocker
(1938) 2 All E.R., 394, 413.
It is however no part of the solicitor's duty, in the
absence of special instructions, to advise his clients on
matters of business. Thus a solicitor is under no duty to
advise his client whether a sale is a prudent one or
whether an independent valuation is desirable. See
Bowdage v. Harold Mitchel More & Co.
(1962) 106
Solicitor's Journal, 512.
LIABILITY IN PARTICULAR CASES
1. In Contentious Business
Skill and Care
Tingle
C.J.
observed in
Godfrey v. Dalton
as follows :
"It would be extremely difficult to define the exact
limit by which the skill and diligence which an
Attorney undertakes to furnish in the conduct of a
cause is bounded; or to trace precisely the dividing line
between that reasonable skill and diligence: which
appears to satisfy his undertaking, and that
crassd
negligentia
or
lata culpa
mentioned in some of the cases .
for which he is undoubtedly responsible. The cases,
however, which have been cited appear to establish, in
general that he is liable for the consequences of ignor-
ance, or non-observance of the rules of practice of the
Court; for want of care in the preparation of the cause
for trial or of attendance thereon with his witnesses
and for the mismanagement of so much of the conduct
of a cause as is usually and ordinarily allotted to his
department of the profession. Whilst on the other hand,
he is not answerable for error of judgment on points
of new occurrence, or of nice or doubtful construction,
or of such as are usually entrusted to specialists in their
particular spheres."
2. Informing and advising the
client
Where litigation is in prospect, it is the duty of the
solicitor to make proper investigation into the cause of
action to enable him to form an opinion as to whether
a cause of action exists which is likely to succeed, but
a solicitor need not comply with every request from
the lay client and it is a matter for the solicitor con-
cerned to consult Counsel as he shall see fit. If the
solicitor decides that no good cause of action exists, it
is the solicitor's duty to inform his client and advise
him not to proceed, and he is not liable for negligence
if the client insists on instituting proceedings. It is also
the duty of the solicitor to try to prevent useless litiga-
tion. See
Edwards v. Edwards
(1958) 2 All E.R., 179-
Where a client has alternative remedies and the soli-
citor is instructed to pursue one and fails to inform his
client of the other that is open to him, is he guilty of
negligence? These cases are doubtful and must be de-
cided on the particular facts and merits of each case. In
general a solicitor should explain to his client the legal
consequences of any step which the client proposes to
take and he is also obliged to inform the client of
alternative remedies if any, which are available to him-
It is the solicitor's duty also to communicate offers
of compromise to his client; but where the solicitor is
called upon to advise upon what terms a compromise
should be effected, he is under no duty to reason out
the matter with and quote authority to his client,
though it may be proper to inform him that the law'
is unsettled.
3. In matters of Procedure
In matters of Procedure a solicitor is liable for
ignorance of familiar points, as for not filing Plenary or
Originating Summones in time to prevent the Statutes
of Limitations running; for not taking proceedings
within the period prescribed by Statute; and for many
other matters which it is his duty to be aware of, as,
an Officer of the Court.
4. In Non-Contentious
Busine s
A solicitor is liable for loss occasioned by ignorance
on points of ordinary law.
SALE AND PURCHASE
OF LAND
In these cases the solicitor must make all usual and
relevant searches (1) He must insist on the production
of all original documents when he is purchasing part of
the property only, for the purpose of satisfying himself
that the main property is not subject to any equitable
mortgage, charge or lien : (2) when purchasing invest-
ment property he must ascertain and inform his client \
whether the lettines are protected, lettings under -the
2K