ISSUE 54 EWJ web - Journal - Page 4
Striking the Balance:
Too Much or Not Enough?
Author, Katy Giles, Manchester - www.dacbeachcroft.com
You would be forgiven for thinking that those
currently scrutinising the solicitors' profession whether it be the SRA or clients turned claimants have a case of the Goldilocks: either solicitors have
gone too far, or they have not done enough. To protect themselves from claims or regulatory scrutiny,
how do solicitors get the balance right?
on a pension sharing order including obtaining an
expensive actuarial report. Without evidence on file
that clients were advised of the potential cost and
benefits of carrying out such work or obtaining external advice, defending such claims becomes more
complicated.
Top Tips
How can solicitors navigate these competing
extremes? We recommend:
Two Ends of the Spectrum
We have seen a number of ways in which, and reasons
why, solicitors have gone too far for their clients.
1. Taking the time at the outset to clearly define your
retainer and keep it under review;
Sometimes solicitors have pushed the boundaries
because they want to help a vulnerable client, such as
in the recently well-publicised cases of immigration
lawyers allegedly encouraging clients to embellish
their applications for asylum in order to improve their
prospects of success. As a profession, we must always
balance our duty to act in our clients' best interests,
and often our wish to do as much as we can for our
clients, against our professional obligations to act with
honest and integrity.
2. Ensuring that any changes or limitations to a retainer are agreed with the client and recorded on file;
3. When advising clients, making sure to explain
options that you have considered and discounted;
4. Where a client declines to obtain expert input or
enters into a settlement against advice, asking them to
sign a waiver setting out the advice and their contrary
instructions;
5. Always remembering your professional obligations
to act with honesty and integrity. If you are not sure,
speak to a colleague, to the SRA or to another
solicitor who might be able to help.
It is that requirement to act with integrity that
solicitors must bear in mind when clients ask them to
take questionable steps on their behalf. This can manifest itself in the case of SLAPPs (Strategic Lawsuits
Against Public Participation), a current area of focus
for the SRA. In the current economic climate, with
firms and lawyers under increasing pressure to keep
their clients happy, we anticipate that this issue will
come into even sharper focus.
Andrew
Andr
ew Acquier
Acquier, FRICS
CHAR
ARTE
TERED
ED ARTS
AR S S
SURVEYO
VEYOR
R
It is not only in relation to regulatory obligations that
we see solicitors going too far. There have been a
number of recent examples of firms facing claims
where it has been alleged that additional duties were
assumed as the firm either failed to keep a close eye on
the scope of their retainer or, as in Spire Property Development LLP v Withers LLP [2023] 4. W.L.R. 56,
did not clearly define the scope in the first place.
Andrew Acquier FRICS has been working as an independent
valuer since 1982, specialising in fine art and antiques.
Instructions for probate, divorce settlement, tax/asset and
insurance valuations as well as expert witness work are
regularly received from solicitors and other professionals.
Andrew has many years experience of compiling reports
for litigious cases, several of which have necessitated a
subsequent court appearance as an expert witness to argue
At the other extreme, firms are facing allegations that
they failed to do enough for their clients. Solicitors
must consider what advice might be reasonably incidental to the purpose of the work they are carrying
out for their client, or they risk claims due to work that
was not done, rather than errors in work that was
done. It is difficult when, for example, clients have
limited funds and cannot afford to instruct an array of
experts or specialist advisors, but solicitors must not
fall into the trap of presuming what a client will or will
not want to pay for.
quantum. Divorce valuations are a speciality, usually as Single
Joint Expert. He is an Associate Member of Resolution.
Work is carried out throughout the UK and abroad.
23 York Street
Broadstairs
Kent
CT10 1PB
Tel: 0207 353 6440
Mobile: 07787 518 861
In recent years there has been a raft of claims against
matrimonial solicitors alleging under-settlement of
financial proceedings due to failures to – amongst other
things – fully investigate an ex-partner's assets or advise
EXPERT WITNESS JOURNAL
Email: andrew@andrewacquier.co.uk
Website: www.andrewacquier.co.uk
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APRIL 2024