To unbundle or not to unbundle
Many family solicitors will be relieved about the recent ruling in the case of Minkin V Lesley Landsberg.
Since the recession in 2007 and the demise of legal aid, many family lawyers have been asked to act for clients on a limited retainer. Before that, clients would usually instruct solicitors when they wished to divorce or separate and the solicitor would handle the entire matter until the end. However, as finances were squeezed and with the availability of more information on the internet, solicitors have been asked to provide the part only of their service which relates only to their legal expertise or handle matters only as they approach a court hearing. This has been called "unbundling" our service.
Risk and compliance teams up and down the country in all types and sizes of firms have been very worried about this development as it has been difficult to clarify where the solicitors' responsibility begins and ends. Hence the collective sigh of relief over the recent ruling.
In that case, the client claimed her lawyer was negligent in the advice she gave during divorce proceedings. The case centred on the extent of a solicitor's duty to their client when they are instructed on a limited retainer. The question before the Court of Appeal was whether solicitors on a limited retainer have a broader duty of care to their clients. In that case the solicitor had been instructed only to draft a Consent Order and had not been asked to advise on the merits of the agreement.
The Court of Appeal found that the solicitor did not have an obligation to give advice beyond what they had been instructed to do and, indeed, the client had already received advice from another firm which had warned her that the settlement did not seem satisfactory.
Pragmatically, the Court said that unbundled legal services are "invaluable" to Courts and litigants alike and that there would be "very serious consequences" for both the Courts and people acting in person if solicitors felt unable to accept instructions on a limited retainer basis for fear of a far broader duty of care being imposed upon them. However, the client care letter and formal written retainers do have to be carefully drafted and reflect what the solicitor and client have agreed the service should be.