Who is a client?

A question is often asked as to whether someone involved in a matter in which a solicitor is acting is a 'client' of the solicitor, thus creating a retainer.


The definition of client is found in section 87 of the Solicitors Act 1974. An understanding of the definition will usually answer the question. However, solicitors must note that the definition is inclusive and not exclusive. Adjudicators are sometimes asked to make decisions in cases where the solicitor has said throughout an investigation, 'you have no jurisdiction; this person was not my client'.


Where an interested party is not a client, but has a complaint to make, he is usually a beneficiary of an estate where the solicitor is an executor or is acting for executors. Although clearly not the solicitor's client, it is good practice to inform beneficiaries of progress being made and of the likely costs involved. Many complaints arise because inadequate information is provided, and although a beneficiary is not entitled to redress personally, if inadequate professional service is confirmed in such circumstances, it may result in serious repercussions for the solicitor concerned.


Another common situation arises in divorce proceedings when a jointly owned matrimonial home is to be sold. Typically, both parties will have been separately represented in ancillary relief proceedings. However, only one firm can act in the sale and, in the absence of agreement, the court will usually direct the sale to be conducted by the solicitor for the party in occupation.


For the purposes of the sale only, both parties become clients of the solicitor and both are entitled to, and should receive, detailed client care and costs information. In the absence of any specific exclusion, either be agreement or by court order, both parties clearly come within the definition of client and are liable to pay the solicitor's costs, which would normally be deducted from the proceeds of sale prior to division.


Another frequently expressed concern is where solicitors act for institutional lenders in mortgage transactions. It is essential to clarify whether a solicitor/client relationship exists. A mortgage 'package' will often include legal costs, provided the solicitor nominated by the lender deals with the transaction.


The solicitors may consider they are acting solely for the lender. However, the real position may be far from clear. If the borrower requests and/or receives any service from the solicitor, a retainer may be created with all the implications that follow. It is a solicitor's responsibility clearly and expressly to exclude the possibility of a retainer in such circumstances, and to do so in demonstrable form in the course of correspondence and documentation. Additionally, it is good practice to advise the borrower to seek independent legal advice.


This column is written by a Law Society adjudicator