Proctor : August 2017
18 PROCTOR | August 2017 3. Have a written costs agreement. It is important to have a written retainer, even where a costs agreement would not otherwise be required having regard to the fees the solicitor proposes to charge. This retainer should: a. Identify the work that is within the scope of the retainer, that which is outside the scope and the client risks arising from the limited scope. This is particularly important where the LSR work involves a departure from the more common or traditional manner in which the relevant services are provided. It may require expressly informing the client that this arrangement differs from the traditional way in which the work is done, the nature of the limitations and the risks of providing legal services in this manner, and how these risks may affect the client. Ideally, provide a list of things that will be included under the retainer and the things that the solicitor would ordinarily do but which are outside the scope of the retainer and identify the risks to the client’s objectives in excluding that work. The client may also be provided with a list of the risks inherent in the work (for example a risk of a costs order). b. Establish when the retainer will be complete, and the grounds on which it can be terminated prior to completion of the work, for example failure by the client to provide adequate instructions or a divergence in opinion. 4. Clarify roles and responsibilities. In addition to defining the scope of the retainer in writing in a costs agreement, the solicitor should satisfy themselves that the client understands the limited nature of the retainer, and the roles and responsibilities of the solicitor and the client in the conduct of the matter. The solicitor should keep adequate diary notes of conversations with the client about the limited scope retainer. In some matters, this may require a face-to-face meeting with the client. Evidence of the client’s acceptance of the limited scope retainer and the risks inherent in that arrangement, or an important step in the matter, for example an acknowledgement signed by the client, will assist the solicitor to demonstrate that the client understood and accepted the limited scope retainer. 5. Manage the scope. During the course of the matter, the solicitor should continue to manage the scope of the retainer. For this purpose, it may be useful to define stages of the work, and confirm in writing when each stage is complete. Aligning the fee and payment structure with this staging of work provides a useful mechanism to ensure the solicitor and client recognise when work agreed to under the retainer is complete. If work outside the scope of the original retainer is to be done, this should be expressly communicated to the client in writing. Alternatively, consider referring the client to another lawyer where advice is needed on matters which are outside the agreed scope. For example, advice on the litigation itself, where the LSR is limited to settlement advice. 6. Confirm when the retainer is at an end. When the retainer is complete, it is good practice to confirm this in writing to the client as soon as possible. When concluding the retainer, particularly where the client is continuing to represent themselves in a legal process, the solicitor should outline for the client in plain language the next steps that they should take, the potential risks and applicable deadlines and time limits, but confirm that the retainer is now at an end. This will be particularly important in the case of individuals or others who are not ‘sophisticated’ 4 clients. However, the solicitor is not obliged to provide detailed instructions for how the client might conduct the matter themselves and without further legal representation. The written communication to the client should be explicit Our Corporate Programme rewards are engineered around You. Mercedes-Benz vehicles are the choice of those who demand the best. The Mercedes-Benz Corporate Programme is designed to make ownership easier for you. If you are eligible for the programme, the rewards available to you include: • Reduced dealer delivery fee^ • Complimentary scheduled servicing* • Total of 4 years Mercedes-Benz roadside care Take advantage of the benefits today. www.mercedes-benz.com.au/corporate * Up to 3 years or 75,000km from new (whichever comes first). AMG (excluding V12 vehicles) 3 years or 60,000 km from new (whichever comes first). All V12 vehicles 3 years or 50,000 km from new (whichever comes first). ^ Not applicable to all models.