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Flashcards by P. M-Sylvester, updated more than 1 year ago
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Created by P. M-Sylvester
over 9 years ago
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| Question | Answer |
| CHAPTER 1 - RETAINER | DEFINITION - Bundle of contractual terms and obligations made between the attorney and the client. Sets out what the attorney has agreed to do and what the client has agreed to pay. |
| FEATURES OF ATTORNEY/CLIENT RELATIONSHIP | 1) By accepting retainer, attorney acquires the authority to act for and to bind the client in respect of business for which he is retained. 2) Client becomes bound between himself, the attorney and any 3rd person with whom the attorney deals on his behalf in respect of the matter for which the attorney was retained. |
| Is there any such thing as a general relationship of attorney and client? | Saffron Walden v. Rayner - there is no such thing as a general relationship of attorney and client. An attorney is only his client's attorney when the client chooses to employ him and in the matter in which he is employed. The relationship of attorney/client does not extend beyond this. |
| Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp | 1) Extent of attorney's duties depends on terms and limits of retainer; 2) The attorney is not under a duty to consider all aspects of his client's interest generally (Saffron supra.); 3) Attorney's duties directly related to confines of the retainer; 4) Attorney has a duty to exercise due care and skill as well as a duty not to injure his client by failing to do what he has been retained to do; 5) TEST: what would the reasonably competent practitioner do having regard to the standards normally adopted in his profession. |
| MODES OF RETAINER | 1) Express Retainer 2) Implied Retainer |
| (1) EXPRESS RETAINER Signified by a clear meeting of the minds of the parties (i.e. the attorney and the client(s)). It may be:- | 1) Written 2) Oral 3) Hybrid |
| (a) Written Retainer | The form of writing is irrelevant PROVIDED there is a note or memorandum signed by the party to be charged (i.e. the client) or some other party lawfully authorised by him/her to do so. Preferred practise for a retainer to be reduced into writing. |
| (b) Oral Retainer | Not a strict requirement that retainer be in writing UNLESS the contract has special terms or if one of the parties is under some sort of disability (for e.g. when presumption of undue influence arises or there is a conflict). When retainer made orally, it is advised to reduce it into writing asap. |
| Downfalls of an Oral Retainer | 1) If attorney acts on oral retainer which client denies, attorney will bear the risks involved (Wiggins v. Peppin). 2) Burden of proof lies on attorney (Griffiths v. Evans). |
| Downfalls of Oral Retainer (CONT'D) | 4) If attorney fails to discharge burden, court will hold that he acted without authority (Allen v. Bone). 3) Difficulty ascertaining express or implied terms since retainer not in writing. |
| GRIFFITHS V. EVANS (Hint 1: Burden of Proof on Attorney) (Hint 2: Attorney bears the consequences of failing to reduce retainer into writing) | Where there is the relationship of attorney and client, the word of the client is to be preferred and more weight is to be given to it. The client is ignorant and the attorney is learned. If attorney fails to reduce retainer into writing, he only has himself to blame and must bear the consequences. |
| ALLEN V. BONE (Hint 1: Proceed without authority - urgency) (Hint 2: Acquiescence and Adoption) | An attorney can proceed on oral instructions in urgent situations BUT must seek to obtain written authority asap. (NB - This case also applies to IMPLIED RETAINER with regards to acquiescence and adoption of proceedings by client.) |
| (c) Hybrid Retainer | A mixture of oral and written. Some terms of retainer are written. When conflict arises between oral and written terms, the written ones would take precedence. Amendment of written terms must also be in writing. |
| (2) IMPLIED RETAINER Arises where there is no clear or express meeting of the minds and there is no oral or written retainer. Retainer may be implied by:- | 1) Acquiescence and Adoption 2) Ratification 3) Part Performance 4) Client's consent to consolidation order 5) Estoppel |
| (a) Acquiescence and Adoption | The client is not present nor is he aware of the attorney's actions which amount to a breach of his authority BUT the client, at a later stage, acquiesces and adopts the proceedings, giving the attorney authority to continue. However, if questions about the retainer later arise, the attorney will bear the risk (Allen v. Bone). |
| (b) Ratification | When an attorney acts without authority or under a wrong assumption with regards to his authority and the client ratifies the attorney's actions, instructing him to continue. For e.g. the client is present in court and adopts the attorney's advocacy (Danish Mercantile v. Beaumont). |
| (c) Part Performance | Where a client by his conduct has performed part of the retainer. E.g. where client called attorney and left his writ and notice of declaration, afterwards expressing his desire to "get to the bottom of it." (Parrott v. Echells) |
| (d) Client consents to consolidation order | Order to consolidate operates as a joint retainer by the clients of the attorney and the said clients are jointly liable to the attorney for his costs (Anderson v. Boynton). E.g. Once clients consent to consolidation order, the litigation brings a joint retainer into effect. |
| (e) Estoppel | Even if there is no express retainer, the relationship of attorney and client may be inferred from the acts of the parties involved and the benefits conferred (Blyth v. Fladgate). The client would be estopped from denying the authority of the attorney. |
| JOINT AND SEVERAL RETAINERS | When an attorney is retained by two or more joint litigants, there is a presumption that a joint retainer exists unless this presumption is rebutted. If evidence to the contrary is shown, the retainer would be a SEVERAL RETAINER. |
| Joint v. Several Retainers | Whether a retainer is joint or several is dependent upon the intention of the parties and the nature of the business for which the attorney is being retained. It may be several where the rights and grounds of defence of the litigants are different (Re Allen, Davies v. Chatwood). |
| Joint v. Several Retainers (CONT'D) | a) If several - parties to the retainer liable only for their share of the costs; b) If joint - attorney can receive all his costs from all or one of the clients BUT a judgment obtained against one party is a bar to any subsequent action against the others. |
| NATURE OF RETAINER | A retainer may be done by way of:- 1) Entire Contract; or 2) Divisible (non-entire) Contract. |
| 1) Entire Contract | Unless there is evidence to the contrary, once a client retains an attorney, the attorney undertakes to take the matter to completion or termination by the client. This is an entire contract to conduct the matter until the action is finished and the client receives a benefit which may or may not be success (Underwood, Son & Piper v. Lewis). |
| Fees and the Entire Contract | Unless retainer makes provisions for payment at certain intervals during an entire contract, an attorney is not entitled to abandon the matter or demand fees from a client until the matter is completed. |
| 2) Divisible (Non-Entire) Contract | When a retainer is made to employ an attorney in work of a certain class which entitles said attorney to demand fees while the matter progresses and as the client obtains an incremental benefit from the completion of each item of work (Warmingtons v. McMurray). |
| Five (5) main features of a Non-Entire Contract are:- | 1) Usually encountered in lengthy contentious matters; 2) The matter is often complex and is expected to continue for an indefinite length of time (e.g. bankruptcy matters involving many creditors); 3) There are natural breaks during the matter where the client receives benefits; 4) Attorney must have billed for the works completed; 5) There must be no prior and specific fee arrangement between the parties. |
| TERMINATION OF ENTIRE CONTRACT (Common Law) | Attorney can terminate an entire contract at common law without breach and prior to completion but ONLY for good reason and ONLY after giving reasonable notice to the client (Vandasau v. Brown). |
| Good reason /cause | a) Failure of client to pay disbursements; b) Discovery that action cannot properly be maintained; and c) Cases where the attorney is asked to take a step which is dishonourable, unethical or illegal. BUT REASONABLE NOTICE MUST BE GIVEN |
| TERMINATION OF ENTIRE CONTRACT (Equity) | Matters in equity are often long and protracted. Court: Unfair for attorneys to only demand fees once the matter is completed. Attorney may terminate the retainer without breach during a natural break once there is good cause and reasonable notice is given (Re Romer and Haslam). |
| TERMINATION OF ENTIRE/NON-ENTIRE CONTRACT RETAINER (Generally) | The termination of either contract is a two (2) stage process in that:- 1) There must be good cause (Part A Rule 34 Code of Ethics); and 2) Attorney must take reasonable steps to avoid prejudice/injury to possible rights of client (Part B Rule 12 Code of Ethics). |
| TERMINATION IN CONTENTIOUS MATTERS (Without Notice) | (Part B Rule 13 Code of Ethics) a) where client insists on attorney representing a claim/defence that he cannot conscientiously advance; b) where client seeks to pursue an illegal course of conduct or conduct which would deceive the court; |
| TERMINATION IN CONTENTIOUS MATTERS (Without Notice) CONT'D | c) where client has perpetrated a fraud during course of proceedings and is unable or has refused to rectify same on request of attorney; d) where continued employment would involve attorney in unethical conduct; e) where client's conduct renders it unreasonably difficult for attorney to carry out his employment; f) where for any good/compelling reason it is difficult for attorney to carry out his employment effectively. |
| EFFECT OF TERMINATION | Once an attorney terminates a retainer justly, he is entitled to recover costs for work done on a quantum meruit basis. If retainer terminated without good cause, the client would not be liable to pay costs. |
| EFFECT OF DISCHARGE BY CLIENT | If client discharges attorney during course of contentious proceedings, court can direct taxation and order payment if work has been properly performed. Court will also consider:- a) circumstances surrounding discharge; b) terms of the retainer; and/or c) whether attorney's default/negligence led to discharge. |
| If client discharges attorney unjustifiably:- | He/she would be held liable for costs and the attorney may exercise a lien on client's documents (Gamlen Chemical v. Rochem). |
| AUTHORITY UNDER RETAINER | Saffron Walden v. Rayner - Attorney's authority limited to the business to which the retainer extends, expressly or impliedly, and is subject to any restrictions stipulated within the retainer. If retainer specifically made with regards to a particular transaction, attorney can only carry out the business specified in the said retainer. |
| What happens if the retainer is not specific about the business which the attorney must undertake? | If the retainer does not specifically outline the business for which the attorney is being retained, the attorney would be deemed to have the implied authority to undertake any steps within the scope of his authority. For e.g. where the retainer stated that the client's affairs were to be put in order, the attorney was allowed to acknowledge a debt owed by his client (Wright v. Pepin). |
| Furthermore.... | A retainer authorises only such matters as naturally flow from it (for e.g. divorce and property settlement), SUBJECT to certain restrictions where the permission of the client must first be sought. |
| The permission of the client must be obtained with regards to the following:- | a) Unusual Expenses b) Notices c) Commencing Proceedings d) Embarking on new litigation e) Sale and Purchase of Land |
| (a) Unusual Expenses | Attorney must obtain the special authority of a client before incurring unusual expenses. He must fully inform client of the additional cost involved and the effect which it may have on the client's assets and whether it may or may not be allowed on taxation, making said client liable to bear the cost whatever the outcome of the trial (Blyth v. Fanshawe). |
| Unusual Expenses (Cont'd) | Agreement of client must be obtained before an attorney takes any unusually expensive steps (Re Solicitors, Re Taxation of Costs). |
| Unusual Expenses (Cont'd) (Journeys) | In the absence of special instructions, an attorney has no authority to undertake long journeys whether locally or abroad at his client's expense (Re Storer). However, if the attorney does work for his client whilst abroad and it is subsequently accepted by the client, he would be entitled to his costs (Re Snell). |
| (b) Notices | In general, an attorney does not have any authority to accept a notice on behalf of his client unless the retainer expressly confers this authority upon him (Singer v. Trustee of the Property of Munro and anor.). |
| (c) Commencing Proceedings | Special authority of client is necessary to entitle an attorney to either commence proceedings in a client's name or to appear for and represent same in an action or taxation (Enviro Farms Ltd. v. Caribbean Food Corporation). |
| (d) Embarking on new litigation | Attorney's authority comes to an end upon execution of the judgment and he is deemed to have done all that was required under the retainer. He has no authority to embark on new litigation even if for technical purposes it is regarded as part of the original action (James v. Ricknell) - a case which held that proceedings in interpleader are substantially a second action. |
| (e) Sale and Purchase of Land | Attorney has no general authority to bind his client in respect of the sale/purchase of land unless the authority was granted to him expressly or by necessary implication (Gavaghan v. Edwards). |
| IMPLIED AUTHORITY It is implied that an attorney has authority in CONTENTIOUS business to:- | a) Make admissions; b) Compromise an action; c) Recover debts; and d) Accept service. |
| (a) Making admissions on behalf of client | Admissions by attorney (or by his clerk having management of the action) made AFTER the commencement of a matter are binding and admissible as evidence against the client (H. Clark (Doncaster) v. Wilkinson). This will not apply to admissions made BEFORE commencement and these must be made with client's express authority. |
| H. Clark (Doncaster) v. Wilkinson | "Held – An admission made by counsel in the course of interlocutory proceedings could be withdrawn, unless the circumstances were such as to give rise to an estoppel..." i.e. Formal admissions can be withdrawn by client unless other party has acted upon them to his detriment. |
| (b) Compromising an action | Attorney has general authority to compromise an action on behalf of client provided he acts bona fide and not in defiance of client's direct and positive instructions (Little v. Spreadbury). Ostensible/Apparentl authority - attorney has ostensible authority as between himself and an opposing litigant to compromise a suit provided it does not involve matters collateral to the action (Waugh v. HB Clifford). |
| (c) Recovering Debts | Attorney may recover a payment of debts or damages or costs on behalf of client except where the latter is under a disability (James v. Ricknell). |
| (d) Accepting Service | An attorney can accept service on behalf of his client and/or on behalf of a client who has since changed attorneys provided that no notice of the change has been given. |
| IMPLIED AUTHORITY It is implied that an attorney has authority in NON-CONTENTIOUS business to:- | a) Have custody of his client's deed; b) Receive consideration on sale of client's property, provided that the attorney produces the endorsed deed; and c) Receive deposits on the sale of land. |
| EFFECT OF WANT OF AUTHORITY If an attorney acts without authority during LITIGATION, the follwing remedies are available to the client:- | (a) Stay of Proceedings; (b) Costs; (c) An action for breach of warranty of authority; and/or (d) Disciplinary Proceedings. |
| (a) Stay of Proceedings | Where attorney acts or continues to act without authority from his client, a stay of proceedings may be granted in the name of the person wrongly named as a party and the name of the attorney struck out for future proceedings (Yonge v. Toynbee). Court may grant stay without application in cases where retainer made despite client's inability to so do. |
| (b) Costs | In addition to stay, attorney will be made to pay costs to person wrongly named as a party as well as the costs of the other side on a party to party basis. Based on court's reliance on attorneys as officer of the court (Yonge v. Toynbee). |
| (c) Action for breach of warranty of authority | Where an attorney wrongly represents that he has the authority to do a particular act and another person is misled to his prejudice, the ground upon which the attorney is held liable in damages is that there is an implied contract or warranty that he had the authority which he professed to have (Yonge v. Toynbee). This applies in cases of both fraudulent and innocent misrepresentation. |
| (d) Disciplinary Proceedings | Attorney who acts without authority may be held liable for professional misconduct and may be subject to disciplinary proceedings. He may be punished by suspension or he may even be struck off the Roll. For e.g. Wheatley v. Bastow: an attorney was struck off the Roll for instructing counsel without authority of client to consent to the disposal of funds, which resulted in loss to the client. |
| EFFECT OF WANT OF AUTHORITY (Outside of Court) | Attorney entering into contact on behalf of client is liable for any damages which may directly flow as a result of any breach. Liability not limited to bare case of contract but extends to every transaction of business into which a third party is induced to enter by the representation of the attorney. |
| Essential matters to be included in a retainer are:- | a) Nature and scope of work to be done; b) Fees to be charged or method of calculation; c) Responsibilities of client as per fees and disbursements; d) Method of termination of retainer. |
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