Proctor : August 2017
17 PROCTOR | August 2017 Professional standards • making difficult judgments about how far to go in exploring facts and issues that are related to the work that is within the scope of the retainer, particularly if the solicitor is coming in after the matter has been going for some time. Scope of an LSR retainer Solicitors have a duty of care to apply the relevant degree of skill and exercise reasonable care in carrying out the task. While the agreed scope of the retainer is an important factor in determining this duty of care, there remains the risk that a broader scope may be found to exist for the purposes of determining professional negligence, once considerations such as the nature of the task and circumstances of the case are taken into account. In Trust Co of Australia v Perpetual Trustees WA Ltd and Others1 McClelland CJ observed: “The duty of care owed by a solicitor to his client is to exercise reasonable skill and care. What is required for the performance of this duty in a particular case depends on the scope of the solicitor’s retainer, the scope of any additional responsibility assumed by the solicitor and relied on by the client, the nature of the task entrusted to or undertaken by the solicitor, and the circumstances of the case.” The Queensland Supreme Court has also recently demonstrated a willingness to extend the scope of the retainer beyond that argued by the solicitor. 2 In the UK, a court has looked specifically at the issue of professional negligence in the context of LSR work.3 In that case, the Court of Appeal upheld a decision that a solicitor on a retainer to redraft financial orders in a family law matter had no duty to advise on the underlying financial agreement. The court noted the increasing prevalence of limited scope retainers in family law work and its importance to litigants and the court and that good practice is to limit the scope of the retainer in writing. 4. Recommendations To help solicitors to overcome the challenges presented by LSR in the dispute resolution setting, and to ensure that the client obtains the greatest benefit of this approach, it is suggested that the following approach be followed: 1. Is the matter suitable for LSR? The limited scope of the proposed representation must be reasonable in the circumstances. Factors include whether the limited role will enable the solicitor to provide proper, diligent and competent representation. Solicitors should therefore have a process in place to assess whether a matter is suitable for LSR, including assessing the: a. Characteristics of the case. As a general rule, the more complex and contested the case, the more cautious the solicitor should be about providing LSR. This may relate to: • The facts of the case. The solicitor must be able to achieve sufficient mastery of the facts and evidence to provide competent assistance on a limited scope basis. This may include verifying facts and evidence critical to the success of the matter. • The law. Where the law is complex, its application in this case may be difficult to assess, making the solicitor’s job more difficult on a limited scope basis. • The process. Processes designed for self-represented litigants, or in which self-represented litigants are common, are generally more appropriate for limited scope assistance. As the process becomes more complex, the level of knowledge and skill required to succeed in the process increases. • The level of conflict in the dispute. Cases where there is a history of entrenched conflict between the parties pose obvious challenges for limited scope assistance. • The stakes. Cases where the personal consequences to an individual are greater (i.e. potential significant monetary losses or risks to an individual’s liberty or reputation) require more careful consideration as to the appropriateness of a limited scope retainer. b. Characteristics of the client. The client must appear to the solicitor to have the skills and ability to understand and carry out those tasks for which they are responsible in the conduct of the case. Some clients may lack the skills to conduct their part of the case, or their ability may be impacted by other factors such as acute emotional distress, health or logistical problems. Assisting a client to get into a dispute resolution process when they cannot manage the obligations imposed on them by that process may not be in the client’s best interests. This is particularly so when the client is at risk of costs orders against them if they fail. c. Characteristics of the solicitor. The knowledge and experience of the solicitor in the type of case is a relevant consideration. An experienced practitioner finds it easier to make sound judgments about the extent of instructions required from the client, and is more able to anticipate, recognise and manage problems as they arise. d. Capacity of the solicitor and client to work together to achieve the desired outcome. Some litigants choose to self-represent because they have rejected the advice of their previous lawyers and want to conduct the case their way. Limited scope assistance is not appropriate unless the solicitor and the client are aligned about the best way to conduct the case, and each willing to play their part in doing so. 2. Review suitability continually. Solicitors should constantly review whether a matter remains suitable for LSR. For example, where there are inadequate or poor quality instructions provided by the client, further clarification from the client should be sought before continuing any assistance.