The Lawyer and Client Relationship at Common Law
The relationship between lawyers and clients was defined over time by the common law. So, for example, a solicitor’s authority to act on behalf of a client arises from what is traditionally called the ‘retainer’.
This term usually refers to short-term contracts of hire. Such an arrangement is called a retainer because it usually calls for a payment ‘up front’. It is often used in relation to solicitors because it used to be a3 M Taruffo, ‘The Lawyer’s Role and the Models of Civil Process’ (1981) 16 Israel Law Review 5. common arrangement. The solicitor’s authority extends only as far as the terms of the retainer specify, either expressly4 or impliedly.5
In England and Wales the issue of the lawyer and client relationship is complicated by the existence of the ‘split profession’ and the allocation of responsibility between the professionals in such an arrangement. Barristers are instructed as consultants and specialist advocates and paid for by clients, albeit through solicitors. Nevertheless, the courts require that solicitors do not follow counsel’s advice blindly but continue to exercise their own judgement, especially where counsel is obviously or seriously wrong.6
IV.