Ever been forced to argue an unrealistic case (“doomed to disater” or “bound to fail”) to conclusion by a client who seems to have lost the plot? An article in the Law Society’s Gazette (3 March 2010, Jonathan Rayner) reminds us that last month the Court of Appeal concluded that in such circumstances solicitors could decline to act and still be paid as such conduct on the part of a client constituted reasonable ground for refusing to act further for the client, a ground to terminate the contract for legal services at common law, echoed in rule 2.01(2) of the Solicitors Code of Conduct 2007.
In reaching this conclusion in an otherwise dry case concerning planning law, Dyson J emphasised that “solicitors should not lightly be able to terminate their retainers, leaving their clients with the task of finding fresh solicitors to complete the job” but decided that the solicitor’s right must extend beyond the case “..in which he is instructed to do something improper.”
Lord Dyson went on to say, in words likely to cheer the reasonable advocate (is there such a person?), “In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it.” How refreshing.