I would like to mention a recent important Court of Appeal case which is about solicitors being paid. You might think that this is only of interest to my profession and that just mentioning the subject only serves to show that what a money-grabbing lot we all are ( I know several lawyer jokes - some are very funny, e.g George Burns: And God said: 'Let there be Satan so they don't blame everything on me and let there be lawyers do they don't blame everything on Satan'. More of the same on http://www.allgreatquotes.com/lawyer_quotes.shtml. Warning: please ignore the ads for sleazy lawyers on this site). But bear with me on this one as the case establishes a very important principle for the operation of justice in this country, important to us all I think, which the first instance decision in the High Court put under threat.
The case, Buxton v Mills -Owen concerns a law firm concerns a client whose case on planning law began to look decidedly ropey and the client instructed the lawyer nonetheless to present an argument to the court which was untenable in law no doubt in the hope that the court would not realise it was being presented with a hopeless point. The solicitors rightly decided in these circumstances they had to withdraw. In the High Court is was held that if they did they should not be paid for the work they had done so far, implying that they should fight on or lose their fee.
Very often cases start off with unclear prospects and therefore require research of the evidence, and sometimes the law, before an opinion can be properly given. Or cases which look reasonable are blown out by a 'smoking gun' of evidence which could not be discovered until later in the day(and in some instances was deliberately concealed by the client).
Sometimes these developments just mean that to fight on is not worth the risk of costs and in those circumstances if the client is fully advised on the enhanced risks but still wants to fight on in the teeth of them, and pays any reasonable sums on account of costs required, the lawyer should continue provided there is still sufficient confidence in the solicitor -client relationship to keep it going (in practice though the relationship usually breaks down at this point as the solicitor advises the case should be abandoned but the client will not accept).
However even if the client has every confidence that the lawyer will pull it off, no lawyer can continue with a case that is untenable in law or present false evidence or withhold evidence that must be disclosed. Since the solicitors' ethical code must be followed this even raise the vista of a solicitor having to say to a judge (of course in the most persuasive way possible) in effect: 'I know my client's case is rubbish but he has suffered badly at the hands of the other party, so please find for him anyway'
In those circumstances, the lawyer must be allowed to withdraw rather than remain in such a position.
As Lord Justice Dyson has wisely said in Buxton v Mills-Owen ..'the common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years'.
There are some lawyer jokes that must never be taken seriously. One, by Patrick Murray, is one of those: 'a lawyer will do anything to win a case, sometimes even tell the truth'
The case, Buxton v Mills -Owen concerns a law firm concerns a client whose case on planning law began to look decidedly ropey and the client instructed the lawyer nonetheless to present an argument to the court which was untenable in law no doubt in the hope that the court would not realise it was being presented with a hopeless point. The solicitors rightly decided in these circumstances they had to withdraw. In the High Court is was held that if they did they should not be paid for the work they had done so far, implying that they should fight on or lose their fee.
Very often cases start off with unclear prospects and therefore require research of the evidence, and sometimes the law, before an opinion can be properly given. Or cases which look reasonable are blown out by a 'smoking gun' of evidence which could not be discovered until later in the day(and in some instances was deliberately concealed by the client).
Sometimes these developments just mean that to fight on is not worth the risk of costs and in those circumstances if the client is fully advised on the enhanced risks but still wants to fight on in the teeth of them, and pays any reasonable sums on account of costs required, the lawyer should continue provided there is still sufficient confidence in the solicitor -client relationship to keep it going (in practice though the relationship usually breaks down at this point as the solicitor advises the case should be abandoned but the client will not accept).
However even if the client has every confidence that the lawyer will pull it off, no lawyer can continue with a case that is untenable in law or present false evidence or withhold evidence that must be disclosed. Since the solicitors' ethical code must be followed this even raise the vista of a solicitor having to say to a judge (of course in the most persuasive way possible) in effect: 'I know my client's case is rubbish but he has suffered badly at the hands of the other party, so please find for him anyway'
In those circumstances, the lawyer must be allowed to withdraw rather than remain in such a position.
As Lord Justice Dyson has wisely said in Buxton v Mills-Owen ..'the common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years'.
There are some lawyer jokes that must never be taken seriously. One, by Patrick Murray, is one of those: 'a lawyer will do anything to win a case, sometimes even tell the truth'
No comments:
Post a Comment