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Did you know that you can instruct a family lawyer just to deal with parts of your case?

The client contract under which a solicitor provides services is called a "retainer". The solicitor is obliged under the contract to provide services with reasonable skill and care.


If a solicitor is instructed to act in family proceedings "generally" the obligation to act with reasonable skill and care will extend to all aspects of the case and usually to the provision of advice and services to the same degree as a "reasonably competent" solicitor experienced in that field of work.


So what happens in the increasingly common situation nowadays in which a client may feel unable to afford to instruct a solicitor to act "generally" so uses the lawyer for specific separate pieces of work? This is a process which has become known as "unbundled" legal services.


Many people think that using a lawyer is an unaffordable luxury. It need not be and in fact for many people should not be. Many people will spend more on a summer holiday which is gone in ten days than they do on legal costs to protect their position in the one-off circumstances of a divorce whose outcome lasts a lifetime. It makes sense at the very least to have things checked through.


The Court of Appeal considered the situation recently in the case of Minkin v Lesley Landsberg (2015). Mrs Minkin negotiated a deal with her husband. She instructed a first solicitor who advised that the proposals were not as they should be but Husband and Wife went ahead nonetheless. The court refused to make the order. Mrs Minkin sought further help but said that she wished "to bring this all to an end as swiftly as possible" so limited her instructions to the re-drafting of the terms. The second solicitor did that, Husband and Wife went to court personally to have the order made. Shortly after the order was made the Wife had cold feet and wished the order had not been made. She sued the second solicitor in negligence saying that she should have advised more widely.


The trial judge threw out the claim and so did the Court of Appeal giving reasons that help both clients and solicitors in agreeing what services are to be provided in which situation.


The law is clarified so that a solicitor must do what is instructed and agreed and at the same time provide reasonable incidental advice. However the wider factors in the case such as the type of client and whether both solicitor and client have agreed to limited the services to be provided should also be taken into account.


So it is perfectly possible for a solicitor to be instructed to carry out work only in connection with certain parts of a case without being a "general insurer" for the wider case. In such a situation there will be no obligation to give general wider advice.


In the same way that we can go into a restaurant and order just a starter or a main course without having three courses and coffee we can go to a lawyer and pick from the menu.


The courts have said that they wish to encourage "unbundled" services to be available in cases which would once have qualified for Legal Aid but which no longer exists. It will be sensible for the solicitor and client to agree and record in writing what is to be done and what is not to be done under the retainer.


SME Solicitors accepts limited retainer instructions in certain cases. For further details please contact one of our specialist family lawyers Ian Stirzaker or Joanna Gardner

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Added: 17 Mar 2016 10:11

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