Solicitors boosted by retainer termination case after Law Society intervenes

1 March 2010

Solicitors will no longer feel compelled to continue acting for a client who insists they put forward arguments in court which they consider to be improper or wrong, after the Law Society intervened in a Court of Appeal case over the issue.

Following the Court of Appeal decision in Buxton v Mills-Owen, where the court had to decide whether a solicitor was entitled to cease to act for a client where the client's instructions were untenable, solicitors faced with this situation will be entitled, if the client insists that they follow such instructions, to cease to act yet still be paid for the work done up to that point.

Law Society President, Robert Heslett, says:

"The judgement is an important clarification for our members who are faced with the difficult scenario of being instructed to make untenable arguments to court. The situation whereby a solicitor would be left unpaid for services rendered prior to ceasing to act where the client insists on such arguments was unfair to solicitors who owe strong duties to the court and the justice system as well as to their clients.

"Like any business, solicitors should be paid for the services they provide and be confident in refusing to make arguments which they do not think they can professionally articulate or which would breach their professional duties.

"The Law Society felt it was essential for any uncertainty around this issue to be cleared up, to make it easier for solicitors to deal with situations where clients insist that unarguable points should be put, which is why it was so important for us to intervene in this case."

The Court of Appeal overturned the judgment of Mackay J in the High Court and, accepting the Law Society's arguments, made it clear that where a client is instructing a solicitor to put arguments to a court which are not properly arguable then the solicitor is entitled to cease to act and is entitled to be paid for the work that she or he has done.