Saturday, November 10, 2007

Ceasing to act

I'm not going to speculate upon whether Heather Mills 'sacked' her lawyers, Mishcon de Reya, or they 'sacked' her, but this article in The Times this week includes a summary of the circumstances in which solicitors can decline to act for a client any further. It does happen, although one sometimes wonders whether it happens as often as it should, with firms continuing to act (and take fees) in circumstances when they should not. The circumstances when a solicitor must cease to act are set out in Rule 2.01 of the Solicitors' Code of Conduct, but the rule does not set out circumstances when a solicitor may refuse to act, save that he/she "must not cease acting for a client except for good reason and on reasonable notice".

Perhaps the most common scenario in family law work is where the solicitor is trying to conduct the matter in a constructive, non-confrontational way (in accordance with Resolution's Code of Practice), but the client wants a far more aggressive approach, despite being informed at the outset of the approach the solicitor will take. This can lead to increasing tensions and, ultimately, a loss of confidence by the client. The client may of course choose to instruct other solicitors, but if they do not, the solicitor may have to cease acting.

As Rule 2.01 states, the solicitor must give reasonable notice of his/her decision, although the guidance notes to the Rule accept that there "may be circumstances where it is reasonable to give no notice". The amount of notice depends upon the circumstances, for example: "it would normally be unreasonable to stop acting for a client immediately before a court hearing where it is impossible for the client to find alternative representation" - where it is, the solicitor "should attend and explain the circumstances to the court".

4 comments:

  1. This is more a question. Can one client 'sack' their lawyer as a ploy to prevent costs incurring for a period of time and then re-engage them, even if a 'cease to act notice' has been filed, just before a trial? Is it a ploy used at all in the legal profession?

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  2. Yes, this is done. A client can 'sack' their lawyer at any time and for any reason. If there are court proceedings they should notify the court and the other party by filing a 'Notice of Change'. They can then re-instruct the lawyer, so long as the lawyer accepts the instructions, and the lawyer will file another notice, informing the court that his/her firm is acting again. This is not a problem, so long as the lawyer can properly prepare for the hearing.

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  3. Last April I informed my solicitor I had run out of money and could no longer pay him (Note, my account was up-to-date at that time). They found a solution whereby they took a legal charge on my house against future costs as long as i paid any third party costs (a friend undertook this for me). Jan this year my solicitor informed me that they would no longer act as they were owed £40k. I cannot represent myself as they have all the papers. I cannot get another solicitor as have no money and the terms of the previous chatge prevents me taking out another. What can I do????????

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  4. I can't give advice here, but I suggest you raise this with the Solicitors Regulation Authority and/or the Legal Complaints Service. If they can't resolve the matter for you themselves, they should point you in the right direction.

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