Another case on the extent of a solicitor’s retainer highlights the need for clients to carefully consider what it is their solicitors have been asked to do. Clients should not assume that a new instruction carries an implied brief that the solicitor should automatically review old advice and old drafting on work that may have since become outdated because of legislative changes and development in the law.
In Sheppard Construction Ltd –v- Pinsent Masons LLP, the solicitors (“P”) were sued for in excess of £10milliion. Sheppard Construction (“S”) sought to argue that there was a longstanding relationship going back over 10 years including over 70 items of work which gave rise to a single contract.
This, S claimed, meant that P had an implied duty as part of their overall duty of care to exercise all reasonable skill and care to review the suitability of previous drafting and earlier advice that might have been impacted by changes to the law when giving advice or doing work at a later date. The Judge found that there was “some force to the argument” that a specific commission undertaken by a solicitor to review a contract may carry with it a responsibility to revisit earlier related advice given by that same firm.
Also, that in a longstanding relationship the review of one set of standard contract documents that require changes may mean that the solicitor should at least advise their client that revisions may be required to other standard contract documents previously drafted some time before. Length of time between one set of advice and another may be a factor in determining whether failing to so advise would be negligent.
No solicitor could be open to criticism if the second job was say 20 years after the first job with no involvement since. The Judge went on to strike out part of S’s case that sought to argue that there was a single contract giving rise to the duty to review previous contracts. The Judge found that there was not a general retainer but that the work was carried out and billed as individual pieces of work such that no express or implied duty of care arose to keep the old work under review unless it was specifically requested.
The lesson for clients is not to assume that there is a general retainer or duty on the solicitor to keep the client up-to-date as part of any individual piece of work. A solicitor would not be negligent if no instruction was given to revisit previous advice.
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