Notice that solicitor has ceased to act
CPR 1998 Part 42 and FPR 2010 Part 26 respectively deal with ‘Change of Solicitor’ in civil and family proceedings. Each Part records that a party’s address for service, if solicitors are acting, is that solicitors’ address; it provides for a party to appoint, change or give notice of acting in person (with LSC funding consequences); and it records the circumstances in which a sole practitioner solicitor ceases to be on the record (such as bankruptcy and death).
Most importantly, for present purposes, each of CPR 1998 r 42.3 and FPR 2010 r 26.3, in very similar terms, provide for an ‘Order that a solicitor has ceased to act’. The wording of the rule records is in declaratory terms and provides as follows:
(1) A solicitor may apply for an order declaring that that solicitor has ceased to be the solicitor acting for –
(a)a party; or
(b)a children’s guardian.
(2) Where an application is made under this rule –
(a)notice of the application must be given to the party, or children’s guardian, for whom the solicitor is acting, unless the court directs otherwise; and
(b)the application must be supported by evidence.
(3) Where the court makes an order declaring that a solicitor has ceased to act, a court officer will serve a copy of the order on –
(a)every party to the proceedings; and
(b)where applicable, a children’s guardian.
That is to say, the ceasing to act must be preceded by a conclusion as between solicitor and client that the solicitor’s retainer is at an end. Therefore, as the editors of Civil Practice point out: ‘no order under r 42.3 should ever be necessary’, since it declares a state of affairs. It will not apply only where the client is was unwilling to accept that his solicitors felt they could take his case no further. Normally (as in Buxton v Mills-Owen (below)) the retainer issue now under consideration arises where the retainer has come to an end, but a solicitor’s claim for costs is in issue.
PD42 and PD26A (para 3 in both cases) are in the same terms. Both require an application to be made under the Part 23 or Part 18 procedures ‘supported by evidence’. Unless a (former) client objects that a retainer has not ended (in which case formal application must be made by the solicitors on the record) any order should be capable of being dealt with alongside a notice of change of solicitors under CPR 1998 r 42.2 or FPR 2010 r 26.2.
Termination of retainer
A solicitor’s retainer is contractual. It carries with it obligations one of which is, to see the case through unless the client terminates the retainer; or for good reason the solicitor terminates it. A client can terminate a solicitors’ retainer at any time. Issues may then arise as to costs; but that is largely beyond the scope of this book. A solicitor may not terminate the retainer save for good reason and upon reasonable notice being provided. Neither of these two requirements are clearly explained for solicitors or their clients by SRA Code of Conduct.
The nature of the contract was explained in the Court of Appeal by Lord Esher MR in Underwood, Son v Piper Lewis
‘When one considers the nature of a common law action, it seems obvious that the law must imply that the contract of the solicitor upon a retainer in the action is an entire contract to conduct the action till the end. When a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step, and then give him fresh instructions to take another step, and so on; he instructs the solicitor as a skilled man to act for him in the action, to take all the necessary steps in it, and to carry it on till the end. If the meaning of the retainer is that the solicitor is to carry on the action to the end, it necessarily follows that the contract of the solicitor is an entire contract – that is, a contract to take all steps which are necessary to bring the action to a conclusion.’
However, added A.L. Smith LJ, there may be circumstances where the solicitor is not required to, or cannot, continue to act:
‘… On the other hand, it is clear that the solicitor may be placed in such a position by the client as to absolve him from any further performance of the contract. … the client may put the solicitor in such a position as to entitle him to decline to proceed; for instance, if the solicitor asks for necessary funds for disbursement, and such funds are refused by the client, the solicitor is not bound to go on; and, speaking for myself, I should say that the solicitor is not bound to go on acting for the client if the client insists on some step being taken which the solicitor knows to be dishonourable; and many other cases may be supposed in which the solicitor may be entitled to refuse to act for the client any further.’
Termination of a solicitor’s contract of retainer
In Buxton v Mills-Owens the Court of Appeal was concerned with the question of whether, and if so in what circumstances, a solicitor was entitled to terminate a client’s retainer; and if so, whether the solicitor should be paid. Mr Mills-Owens (‘MO’) retained Richard Buxton, solicitors (‘RB’), in connection with a planning appeal. The notice of appeal was drafted hastily for reasons explained in the judgment. It contained four grounds. On further consideration, and by a second barrister instructed, RB advised MO that only the first ground of appeal had any prospect of success ‘within the very tight parameters set by the law’ (para ) in this area of work. It would be ‘counter productive to raise questions “which are not going to succeed”’ the barrister had said. Despite this advice MO instructed his solicitors to proceed on all grounds, and on the basis counsel’s skeleton argument which had been amended by MO himself.
Mr Buxton discussed the matter with the Law Society. He then wrote to MO saying that he saw no choice but to terminate the retainer unless MO agreed ‘“to advance [only] legal argument [per] the first skeleton argument”’. He received no satisfactory response from MO. He therefore said to MO that he would apply to come off the court record. In his preparation for the hearing MO treated the retainer as being at an end (no application to come off the record was therefore necessary). On the hearing of the planning appeal: MO acted in person, he advanced all the arguments on the appeal. Before Ousely J the appeal failed.
Practice rules: solicitor’s conduct rules
Buxton pre-dates the present SRA Code of Conduct 2011; but the present Code and the former rules are in similar terms: a solicitor ‘must not terminate his or her retainer [cease acting for a client] except for good reason and upon [on] reasonable notice’ (emphasis supplied: new rules in parentheses). On the issue of termination only for ‘good reason and on reasonable notice’ both old rules and the Code are the same. The Buxton case is a modern assessment of the meaning of this expression, and of the applicable law.
The question for the Court of Appeal was then: did Richard Buxton have a good reason to terminate their retainer. As Dyson LJ pointed out: ‘There is no comprehensive definition of what amounts to a good reason to terminate in the’ Code (as it now is). However, as he says, this is perhaps unsurprising since what is a good reason will depend of the facts of each case; and he accepted the Law Society’s submission that:
‘….it would be wrong to restrict the circumstances in which a solicitor can lawfully terminate his retainer to those in which he is instructed to do something improper’.
Dyson LJ relied on the passage from Underwood (cited above: per AL Smith LJ at 314) and, with this in mind, proceeded to put the following questions to himself:
 The particular question that arises on this appeal is whether a solicitor has good reason for terminating a retainer if a client insists on his putting forward a case and instructing counsel to argue a case which is “doomed to disaster” (Master O’Hare) or which the solicitor believes “is bound to fail” (Mackay J). I agree with Mackay J that it may be difficult to draw the line between an argument which can properly be articulated and put forward (but which has little, if any, prospect of success) and an argument which cannot properly be articulated and which is believed to be bound to fail. The Bar Code of Conduct puts the matter very clearly. Counsel may not draft any document (which must include a skeleton argument) containing a contention which he does not consider to be properly arguable; and he may not make any submission in court which he does not consider to be properly arguable.… I am in no doubt that even before the point was spelt out in the [Solicitors’] 2007 Code, it would have been understood by all solicitors that, as officers of the court, they were under a professional duty (i) not to include in the court documents that they drafted any contention which they did not consider to be properly arguable and (ii) not to instruct counsel to advance contentions which they did not consider to be properly arguable. That duty was reinforced by CPR 1998 r 1.3.
Dyson LJ then concluded by reference to the specific case and the lawyers involved, and the advice tendered by each to enable himself to reach the conclusion (a) that a solicitor was entitled to terminate a retainer if urged by a client to proceed on grounds which the client was advised ‘could not properly be put forward because they were hopeless arguments’; and (b) that in the Mills-Owen case Richard Buxton was entitled to terminate his retainer (and to be paid ):
‘ Thus the appellants and Mr Harrison were of the opinion that grounds (b) to (d) could not properly be put forward because they were hopeless arguments. They shared the view expressed by Mr Findlay who (unlike the appellants and Mr Harrison) had not been able to find a single argument which had any prospect of success. Mr Findlay had said that the case had “no reasonable prospect of success” and that it was “doomed to fail”. ….if the correspondence is viewed as a whole, it is clear that Mr Buxton did not consider that he could properly submit a skeleton argument which included grounds (b) to (d) or instruct counsel to argue those grounds and Mr Harrison agreed with him.’
‘Good reason’: client advancing a hopeless case against advice
‘Reasonable notice’, a prerequisite of a retainer termination, implies that the notice contain some proposal to the client of a way forward: for example that, subject to acceptable terms being agreed, the solicitor will continue to act. For both parties’ sakes the terms must be clear: for example, the advice on which the case is to proceed, arrangements about payments on account; emails to be no more than one a day, and so on. The solicitor and the client need to co-operate to get the best for the client, after all.
The following are examples of circumstances where it may be appropriate to give notice:
(1) Client refuses to permit disclosure of a material document or material information: the case can only then be conducted illegally.
(2) Similarly the client refuses or fails to give information s/he has. This will depend on the materiality of the information, whether it should be disclosed; or is it just a client who is being difficult in helping to set up his/her case for trial? Either way, if warnings are given it will be rare, short of client dishonesty, that such cases will result in the client being sacked.
(3) The client for whom nothing is right, who frequently complains of a trick missed or alludes to non-existent mistakes and does not assist a constructive solicitor/client relationship. Notice may be given.
(4) Inappropriate sexual advances or innuendoes, especially to junior staff; violence; or other inappropriate behaviour. Any of these, if continued, are certain to be good reason to sack the client, sometimes without notice.
If ‘reasonable notice’ needs to be given:
(1) The reasons for the notice must be set out as briefly and as clearly as possible; terms for continuance should be summarised; and if any financial issue arises as one of those terms the notice letter should clearly so state.
(2) The consequences for a client of being sacked must be considered objectively by the solicitor; and a reference to this included the notice letter. For example a case soon to come on for trial creates particular pressures on both sides. Lawyers do not need a client who impedes progress to his own trail; but to sack a client in the run-up to trial is a serious matter. The hill to proof of good reason rises steeply as trial approaches (the Buxton case is a good example of this).