Follow the instructions
The ruling that solicitors can stop acting for clients whose instructions are unrealistic should reassure practitioners concerned about unreasonable requests, says Mike Willis
Lawyers have various options to avoid accepting new engagements, but once instructed it can be hard to terminate the relationship unilaterally and harder still to recoup costs for value-added time incurred. The Court of Appeal's decision on 23 February 2010 in Richard Buxton v Mills-Owen and The Law Society (interveners)  EWCA Civ 122 is not revolutionary, but it contradicts some textbook assumptions and is a timely reminder that clients do not necessarily have it all their own way: lawyers can, and should, stop acting rather than undertake work with unrealistic objectives.
Solicitors in a planning appeal declined to continue acting for their client rather than run arguments, based on environmental issues, which they considered were 'doomed to disaster'. They subsequently appealed decisions of a costs judge and then a trial court, disallowing their claim for their file costs. Overturning the trial judge's conclusion that their termination had been inappropriate, the Court of Appeal's main focus was on the scope of the old 1990 Solicitors' Practice Rule 12.12, finding that the solicitors had 'good reason' to end their engagement.
Given that the 1990 rules have been replaced by the 2007 Code of Conduct, the technical relevance of the decision is arguably marginal. Nevertheless, the Court of Appeal has endorsed the modern code rule 11.01, that lawyers should not run contentions in court which they do not consider to be properly arguable. It has also taken the opportunity to endorse legal principles as well as points of practice which are likely to have broader practical value for lawyers in several ways.
First, the case usefully illustrates the situations that can arise to put strain on a lawyer's ability to accept a client's instructions. In the heat of an imminent or ongoing hearing, advocates and their instructing solicitors can quite frequently be pressured to run arguments which, on cooler reflection, they might discard. Just because an issue or idea may have a strong social, media or political momentum, does not necessarily make it valid for legal proposition. Practitioners may find it helpful to keep the judgment handy for ready reference when they need to make plain to their client why they cannot be compelled to do what he wants.
Second, we are reminded of the legal duties on lawyers, as officers of the court, not to draft and include in court documents, or not to instruct advocates to advance in court, contentions which they don't consider to be properly arguable. It is helpful that three appeal court judges have reminded us that frivolous or unwinnable points which waste everyone's time, and may in fact damage their case, are powerfully disapproved and lawyers risk personal censure from the court if they disregard these obligations. They explicitly disagreed with a textbook mantra that if a client's instructions are firm and unequivocal as to how a case should be presented then lawyers should make their submissions accordingly.
The common practice of using coded phrases, such as 'I am instructed'¦', to signal the advocate's expectation that the point will be rejected, was expressly disapproved.
Although obiter, these comments will be ignored by advocates at their peril; and they will probably be welcomed by solicitors. It is usually irritating, and often embarrassing, for a solicitor to pass on a client's instructions in good faith to the advocate only to hear them expressed in terms or manner in court which make clear the advocate's own lack of enthusiasm for them. It gains nothing, least of all for the client, and serves only to undermine the client's confidence in the whole legal team, and potentially their acceptance of the outcome of their case.
Suppressing this habit should reduce the numbers of subsequent negligence claims and complaints against legal advisers.
Third, the case adds important support for including clear terms in communications to clients, especially in client care and engagement letters, as to what the client is not entitled to expect from his lawyers and to assert rights to charge for value work done in the event of a termination for good reason. Firms everywhere should be prompted by this case to review their standard letters.
The lessons and experience of the case may also be important for lawyers serving more than one master. In matters being run on behalf of several people, or funded by an insurer, a third party, or the Legal Services Commission, the authority of this Court of Appeal judgment may eliminate controversial options, and resolve disputes or retrospective criticisms between clients or their financial backers, because it adds weight to the obligations of an insurer or other sponsor not to run a point against lawyers' advice just because an insured or other client wants it to be tested.
Above all, the decision gives a clear steer to costs judges, and should strengthen solicitors' confidence that if they do stand up to their client and decline to act rather than run a bad point, they will not forfeit their entitlement to be paid for their work to date.
It is no surprise that the Law Society was quick to claim credit for its intervention in the appeal.