The extent to which a solicitor can be said to owe a client a duty of care is very difficult for the layperson to quantify and any determination of this question will invariably necessitate the involvement of a professional negligence lawyer. However, it is fair to say that as a general rule, the frame of a solicitor’s duties are defined by the terms of instruction he receives from his client, which should be clearly laid out as part of the fee (retainer).
Contrary to some assumptions, a retainer is never “general”. A solicitor does, of course, have specialist knowledge of the law, but this does not imply competency, capacity or obligation to act for the client in all fields or his or her interest.
In short, the solicitor’s specialism in legal matters in no way implies that he or she is omniscient in ensuring protection of all of the client’s legal interests in all legal affairs.
Lord Justice Sedley’s comments in the 2009 case of Pritchard Joyce & Hinds v Batcup prove illustrative. He said that “the law does not… demand either omniscience or infallibility from lawyers any more than it does doctors or architects. The law’s standard of reasonable competence means not only that there will be errors which are not compensable but that legal advisers are not expected to divine every claim that a client may theoretically have”.
This case confirmed earlier case law findings that there “is no such thing as a general retainer”.
Instead, the scope of a solicitor’s duty of care is defined, derived and implied by the terms and conditions of the retainer. All of which leads us to the question of how to define the standard of care.
The relevant standard of care
A useful working definition of the standard of care in solicitor professional negligence claims is to be found inMidland Bank v Hett, Stubs & Kemp. In this case the standard of care to be expected was that which a “reasonably competent practitioner would do having regard to the standards normally adopted in his profession”.
Healys professional negligence lawyers
For clear and realistic advice about making a professional negligence claim against a solicitor, lawyer or barrister, contact Healys LLP today. Call our partners on 020 7822 4106.