CHAPTER 1 - RETAINER

FEATURES OF ATTORNEY/CLIENT RELATIONSHIP

Is there any such thing as a general relationship of attorney and client?

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp

MODES OF RETAINER

(1)
EXPRESS RETAINER
Signified by a clear meeting of the minds of the parties (i.e. the attorney and the client(s)). It may be:-

(a)
Written Retainer

(b)
Oral Retainer

Downfalls of an Oral Retainer

Downfalls of Oral Retainer (CONT'D)

GRIFFITHS V. EVANS
(Hint 1: Burden of Proof on Attorney)
(Hint 2: Attorney bears the consequences of failing to reduce retainer into writing)

ALLEN V. BONE
(Hint 1: Proceed without authority - urgency)
(Hint 2: Acquiescence and Adoption)

(c)
Hybrid Retainer

(2) IMPLIED RETAINER
Arises where there is no clear or express meeting of the minds and there is no oral or written retainer. Retainer may be implied by:-

(a)
Acquiescence and Adoption

(b)
Ratification

(c)
Part Performance

(d)
Client consents to consolidation order

(e)
Estoppel

JOINT AND SEVERAL RETAINERS

Joint v. Several Retainers

Joint v. Several Retainers (CONT'D)

NATURE OF RETAINER

1)
Entire Contract

Fees and the Entire Contract

2)
Divisible (Non-Entire) Contract

Five (5) main features of a Non-Entire Contract are:-

TERMINATION OF ENTIRE CONTRACT
(Common Law)

Good reason /cause

TERMINATION OF ENTIRE CONTRACT
(Equity)

TERMINATION OF ENTIRE/NON-ENTIRE CONTRACT RETAINER (Generally)

TERMINATION IN CONTENTIOUS MATTERS (Without Notice)

TERMINATION IN CONTENTIOUS MATTERS (Without Notice) CONT'D

EFFECT OF TERMINATION

EFFECT OF DISCHARGE BY CLIENT

If client discharges attorney unjustifiably:-

AUTHORITY UNDER RETAINER

What happens if the retainer is not specific about the business which the attorney must undertake?

Furthermore....

The permission of the client must be obtained with regards to the following:-

(a)
Unusual Expenses

Unusual Expenses (Cont'd)

Unusual Expenses (Cont'd)
(Journeys)

(b)
Notices

(c)
Commencing Proceedings

(d)
Embarking on new litigation

(e)
Sale and Purchase of Land

IMPLIED AUTHORITY
It is implied that an attorney has authority in CONTENTIOUS business to:-

(a)
Making admissions on behalf of client

H. Clark (Doncaster) v. Wilkinson

(b)
Compromising an action

(c)
Recovering Debts

(d)
Accepting Service

IMPLIED AUTHORITY
It is implied that an attorney has authority in NON-CONTENTIOUS business to:-

EFFECT OF WANT OF AUTHORITY
If an attorney acts without authority during LITIGATION, the follwing remedies are available to the client:-

(a)
Stay of Proceedings

(b)
Costs

(c)
Action for breach of warranty of authority

(d)
Disciplinary Proceedings

EFFECT OF WANT OF AUTHORITY
(Outside of Court)

Essential matters to be included in a retainer are:-