Devon professional negligence solicitor Emma Slade asks, ‘What should a lawyer tell their client and how should they be told it?’
It is strange but within the last few days, I have been asked a variation of the above questions on two separate occasions – by both a client and a colleague. ‘What should my solicitor be telling me? And how should he tell me?’ Or, from the lawyer’s perspective, ‘What should I be telling my client and how? ‘ If the solicitor gets it wrong and there could be a claim for professional negligence.
A claim for professional negligence is assessed on the basis of , “What would a reasonably competent professional with similar qualifications and experience have done in the same circumstances?” If most conveyancers, for instance, would tell their client that the road in front of the house they propose to buy is not in fact adopted and is a private road, then if a solicitor fails to tell the client that, then they could be deemed negligent if it causes the client financial loss.
But that is not always black and white.
If the issue is extremely obvious or the client is already aware of it, then the solicitor may be forgiven for not bringing it to their client’s attention. Not only that, the level or detail of advice does depend on the character and experience of the client. The idea of the “sophisticated client” was considered in the case of Minkin -v- Landsberg. In that case, the claimant was a “very intelligent” professional who had a good understanding of the litigation process so would not have needed the same attention to detail or level of advice as someone with less experience. Although the Court declined to give specific examples, it did say:
“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”
Then there is another issue. A solicitor may have a limited retainer but what if there is a risk or a hazard that can be seen but is not strictly within the terms of that retainer? Should the solicitor step outside the terms of the retainer to flag that up to the client? And if so, how far should they go?
That is a difficult one and again, Minkin considered those questions and previous case law. Technically, a solicitor is bound by the terms of their retainer but in some circumstances, they should step outside the ambit of their retainer. The courts have accepted that in general there is no duty to go beyond the instructions by, say, proffering unsought advice on the wisdom of a proposed transaction. However, where a solicitor comes across something potentially significant in the course of the work he is instructed to do, he would be under a duty to pass it on. In other words, an “obvious risk”:
“if a professional… learns of facts which reveal to him… the existence of obvious risks, then he should do more than merely advise within the strict limits of his retainer. He should call attention to and advise upon the risks.” Boyce v Rendells.
Note though that it has to be an “obvious” risk: the solicitor does not have to delve far, deep and wide.
This therefore brings us to the second question I have been asked. HOW should the client be advised?
In ideal circumstances, the client should get the advice in writing but circumstances are not always ideal and if the advice is given, say, orally, is that negligent?
It comes back to the test I referred to at the beginning: what would a reasonably competent professional with similar qualifications and experience have done etc?
In Mervyn Lambert Plant Ltd & Anor -v- Knights Solicitors 2022, a claim was made against Knights in respect of a case that had failed. The Claimants alleged that Knights gave an overly optimistic view as to prospects of success of the proposed claim and that if they had been told of Counsel’s views in detail, they would have realised it was “doomed from the outset” and not pursued it. Instead, they were given the gist of Counsel’s advice, and that was given to them orally.
The conclusion was that Knights had passed on the substance of Counsel’s views and whilst, with hindsight, it might have been better to forward the exchange of emails, it was not outside a range of options a reasonably competent solicitor had available to him to relay the information orally
So to answer the questions, it will depend on the facts of the matter – the nature of the retainer, the knowledge of the client and how obvious the risks are. The advice does not necessarily have to be in writing provided the substance of the information is passed to the Client.
And finally, one thing that I have not touched on in this article is the role of the client in all of this. As can be seen from Minkin, there are expectations of the client as well, not just the solicitor. Making clear what the client wants or expects of the solicitor is important. Asking questions or seeking clarification is another. There is always the potential argument of contributory negligence in those circumstances so to clients – be clear what you want; to Solicitors and Professionals – be clear on what you will do and how you will do it.
If this article raises issues that affect you and you think you might have a claim for professional negligence, please do not hesitate to contact Devon professional negligence solicitor Emma Slade for a free case review. Call us on 0333 888 0404 or get in touch by email at [email protected]