Pro bono trap

Solicitors may believe that, when acting on a pro bono basis, they are not obliged to comply with the Solicitors Costs Information and Client Care Code 1999, on the grounds that a conventional retainer has not been created. That is not the position.


Mr A consulted solicitors following an enquiry about the possible misuse of his residential property, as he was worried that he may lose entitlement to certain state benefits that he received. To help him, the solicitors contacted the Benefits Agency, and without making any charge tried to persuade the agency not to withdraw assistance, but benefits were later withdrawn.


He revisited the solicitors and instructed them to contact the agency. The solicitors said that they had not earlier been 'formally instructed' by Mr A, and that they had simply tried to help and had advised him informally. They did not consider that he was their client, and did not intend to charge him. They denied that any retainer had been created, and declined to take any further step on Mr A's behalf.


Mr A complained to the Law Society's Consumer Complaints Service (CCS). He said the solicitors had failed to take reasonable steps to carry out his instructions and to provide him with any financial or other client-care information. The solicitors maintained that no retainer had been created.


The solicitors' file was produced, which confirmed a retainer. A letter had been written to the agency, which started with the words 'We are instructed by Mr A...' The letter referred to 'our client' on several occasions.


Whatever the lack of formality, it is clear that the solicitors had regarded Mr A as their client at the material time. The adjudicator was satisfied that a retainer had been established.


The solicitors had failed to provide client-care and costs information, even if only to confirm their decision to act on a pro bono basis. They had failed to take reasonable steps to follow their client's instructions, and took no steps to attempt to conciliate Mr A's concerns.


If solicitors choose to act on a pro bono basis, they must provide the same degree of costs information as they would in any other case. They are not relieved of their obligations under the code. In this case, a letter confirming the pro bono status of the matter would have been adequate. The solicitors should also have provided general client-care information. They did neither. They left Mr A in the dark at what for him was a most difficult time.


Subsequently, the solicitors assured the CCS that their management systems had been amended to ensure compliance in the future. The adjudicator was satisfied that Mr A had suffered significant anxiety as a result of the matter, and awarded him compensation.


This case study is for illustration only and should not be treated as a precedent