Law Society: need to define scope of retainer
There is a wide range of practice areas where solicitors can offer unbundled legal services, from actions against the police to civil litigation, the Law Society has suggested.
It said firms could also use paralegals to act as McKenzie Friends in court.
The society has updated a two-year-old practice note on unbundling in family law to encompass the practice more widely, recognising that “there is no inherent reason why unbundling should be limited to family law”.
While cautioning that solicitors must always consider the “appropriateness of unbundling in relation to the complexity of the case, the client’s needs, and their ability to benefit from unbundled services”, the society provided a non-exhaustive list of areas of law where it may be appropriate to offer them, including small personal injury claims, actions against the police, consumer claims and general civil disputes, family law, housing law and immigration.
Law Society president Andrew Caplen said the move was motivated by the legal aid cuts and the problems those previously eligible for public funding would now have affording a solicitor.
“Solicitors are restructuring the way they offer legal advice so that clients can instruct them under a limited retainer and therefore pay less,” he said. “Unbundling will greatly assist clients who are unable to afford more traditional arrangements, but need advice on one or a number of crucial aspects of their case.”
In relation to advocacy, the practice note warned that “unlike a barrister, who will typically receive a comprehensive briefing from instructing solicitors, you will have to work with whatever your client provides”, meaning solicitors must be sure they have sufficient information before proceeding.
“A further factor to take into account is that advocacy typically does not just involve representing your client at a hearing but is also likely to stray into the territory of negotiations with a third party and, potentially, the need to instruct expert witnesses. Thus there is a risk that an unbundled retainer for advocacy will not look dissimilar to a traditional full retainer.
“Therefore you must take extreme care to delineate your unbundled advocacy service from a full retainer by clearly setting out the limits of the service you will provide and what your client must do themselves. Failure to do so may result in your running the risks and liabilities associated with a full retainer.”
It said offering a “professional McKenzie Friend service” was an alternative in appropriate cases. “A suitably trained paralegal member of your firm could enable you to provide a McKenzie Friend service for a modest fee compared to the cost of providing advocacy at the hearing.”
One of the key principles that should guide practitioners in offering unbundled services “is the need to express with clarity what is covered by the retainer, so that there can be no ambiguity or misunderstanding”, the practice note said.
“You have an overriding duty to act in the client’s best interests that cannot be ignored. Therefore, if you are concerned that it is not appropriate to limit the retainer in the circumstances or that your client does not understand the consequences of the limitations, then you should not offer an unbundled service.
“One professional negligence risk for provision of unbundled services comes from advising the client on the basis of inadequate information. You should firmly resist any temptation to make assumptions about the facts.”
To read the full practice note, click here.
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