Retained to do what?


Retainer letters are back in the news. Actually, they never really left. They are the foundation stone of the relationship between the solicitor and the client. In association with the firm's standard terms and conditions, they set out what the firm will, and will not, be responsible for.


Nevertheless, they are often overlooked or ignored in the rush to get the business and start work. Excuses include: 'There was no time, it was a rush job'; 'The client does not want me to waste my time and his money sending unnecessary letters'; 'I do lots of work for this client so there is no need for a retainer letter'. None of these is acceptable.


There is an expectation on the part of the judiciary and your professional regulations that you will send a retainer letter to the client. In that letter, you need at very least to address:


- The client's needs (how sophisticated is the client?);


- How you will service those needs in terms of personnel, time and expertise;



- What you need to do;



- What the client needs to do;



- What any third parties need to do;



- Time limits;



- The firm's standard terms and conditions.



The objective of the letter is to ensure, in so far as is possible, that there is no misunderstanding between solicitor and client as to what is to be done, by whom, and when. This should be extended to cover the involvement of any third parties, such as accountants. Rest assured the accountant will have submitted a detailed retainer to the client.


Where third parties are involved, a good tip is to have sight of their retainer letters to make sure all areas are covered with regard to the client's work.



While a solicitor is not under an obligation to offer unsought advice on the wisdom of the deal, there is an obligation to offer advice on what were referred to as 'legal obscurity' or 'hidden pitfalls' in Pickersgill v Riley [2004] UKPC 14.



As the retainer develops, instructions may change to accommodate latest developments, especially in fast-moving commercial cases. Again, it is important that such revisions to the original retainer are recorded, preferably in a communication with the client, or in an attendance note.


If it all goes wrong, the port of call for anyone investigating a negligence claim, including the judge, is the retainer letter. If it is not there, you are in trouble. It is reckless not to have such a letter, and reckless behaviour is not something that underwriters find particularly attractive.



This column was prepared by AFP Consulting, a division of Alexander Forbes Risk Services