Practitioners are finding that some clients are insisting on doing parts of litigation matters themselves, primarily to save legal costs. If you are prepared to accept a limited retainer, you need to manage the risks.
In one claim, a practitioner acted on an appeal regarding a dispute over a debt. The client was self-represented at trial.
Although the practitioner was on record as the solicitor for the client, she did not take a very active role in the conduct of the appeal. The client drafted all court documents, which were often lengthy with irrelevant content, and contained allegations that had little basis in fact. In some cases, they were filed and served without being reviewed by the practitioner. The practitioner’s name and ‘tram tracks’ appeared on the documents but the practitioner had provided no substantial input to the content.
The practitioner was given leave to cease acting in the matter a few weeks before the appeal hearing, after being on record for the client for several months. The client ran the hearing and failed. The successful party then sought a costs order against the practitioner, alleging she failed to exercise any professional judgment or control over the proceeding, which caused delay and magnified costs.
The practitioner had allowed the client to advance allegations that had no reasonable prospects of success and did not take adequate steps to advise the client on the case’s merits. The practitioner asserted her retainer was limited to reviewing court documents drafted by the client. However, this was not documented and the practitioner failed to review all of the court documents drafted by the client.
The practitioner should have appreciated the problems sooner with the way the client wanted to run the case. At the very least, the practitioner should have ensured she was able to review and approve the documents drafted by the client before they were filed and served. If the client was not prepared to accept her advice and insisted on filing documents with meritless allegations, the practitioner should have promptly ceased acting.
Limited retainers like this are high risk and should not be undertaken lightly and without stringent safeguards in place.
