In the Halls of the Word Smiths

This week I purchased a subscription to Microsoft Copilot Pro: I now have within my Microsoft Office 365 applications, a new and trusty chatbot, which might prove very useful as I develop my interest in, and use of Artificial Intelligence (AI). I saw yesterday that the Bar Council has published new guidance on the use of AI, and that will doubtless form the content of a subsequent post. But today I decided to revisit the topic of solicitors’ retainers and drafting.

In addition (or in place of) a specific funding agreement such as a conditional fee agreement, a damages based agreement or a non contentious business agreement, the other key document is a client care letter, formerly referred to as a rule 15 letter or perhaps referred to as a retainer document, it has to be something of a document for all seasons, as it often has a key contractual role, and also serve as a vehicle to provide to a client the key written information which a solicitor must supply in writing. 

With AI in my mind, I asked ChatGPT Plus to tell me more about what information a solicitor could or should put in writing to the client at the commencement of her instructions. This is what it told me:

“At the commencement of a solicitor’s retainer in England, there is certain key information that should be provided to the client in writing. This is not only a matter of best practice but is also required under various regulatory and legal standards. Here’s a general overview of the information that should be included:

1. Client Care Letter: This is a formal document outlining the terms and conditions of the engagement. It typically includes details such as the identity of the client, the scope of the work, and the responsibilities of both the solicitor and the client.

2. Details of the Solicitor and Firm: The name, contact details, and relevant qualifications of the solicitor handling the case, as well as information about the law firm, should be provided.

3. Scope of Services: A clear explanation of the services to be provided, including what the solicitor will do and what they will not do. This helps set realistic expectations.

4. Fees and Billing Arrangements: Detailed information on how fees will be calculated (e.g., hourly rates, fixed fees), billing intervals, and any additional costs that may be incurred (such as court fees, costs of experts, etc.). This should also include information on how costs disputes can be resolved.

5. Client’s Right to Terminate: Information on how the client can terminate the retainer, including any notice requirements and the consequences of termination.

6. Complaints Procedure: Details of the firm’s complaints handling procedure, including how to make a complaint and information about the Legal Ombudsman, who can be contacted if the client is not satisfied with the response to their complaint.

7. Regulatory Information: Details about the solicitor’s regulatory authority (typically the Solicitors Regulation Authority) and the protections this provides, such as the compensation fund and professional indemnity insurance.

8. Confidentiality and Data Protection: Assurance of client confidentiality and information on how the client’s data will be used and protected in accordance with data protection laws.

9. Conflict of Interest: Information on how the firm identifies and handles conflicts of interest.

10. Legal Rights and Responsibilities: This may include information about the client’s legal rights and responsibilities relevant to their case.

11. Timeframes: Expected timeframes for various stages of the legal work, if possible.

12. Communication: Guidelines on how and when the solicitor will communicate with the client, and vice versa.

It’s important to note that these requirements can change over time and may vary depending on the specific legal area or the nature of the client (e.g., a business or an individual). Solicitors are also advised to stay updated with the latest rules and guidelines issued by the Solicitors Regulation Authority (SRA) and other relevant legal bodies.”

Well, thats fair enough, so far as it goes, but there is more, a lot more, which needs to be done.

The Law Society helpfully publishes a series of Practice Notes, which are available free of charge on their website which deal with such matters as client care, client information requirements and detailed advice on what should be included in a client care letter, including telling a client how to complain (the triumph of realism over optimism), what needs to be included by reason of the Provision of Services Regulations 2009 (which still apply, notwithstanding our freedom from the yoke of European vassalage) and the need to record “best possible” costs advice, which logically should find its way into the client care letter.

From my point of view, the key point to note when drafting a client care letter is to ensure that it is congruent with and does not clash with, the funding agreement that is at the core of the retainer: if there is a dispute whether with the opposing party to litigation over enforceability or indemnity issues, or as is increasingly likely, a dispute with the client about unrecovered costs at the conclusion of the case, one does not wish to start the arguments, with questions of what, precisely was agreed as the terms of the retainer.

Drafting client care letters requires a painstaking approach, to the crafting of terms and language. The client care letter is beaten out on the anvil of necessity, using the hammer of invention. But it is an oppportunity to establish not only the legal basis of the relationship between solicitor and client, but also to manage the client’s expectations, as to what might be achieved in their matter and to ensure thatthe solicitor-client relationship is put on a proper footing from the beginning.