12 August, 2011

Free solicitors’ advice

Filed UnderLegal Costs  

I note the QualitySolicitors’ TV advertisement is offering a “free first consultation”. So I won’t expect to see that time claimed in any Bill then.

Comments

14 Responses to “Free solicitors’ advice”

  1. Robert Pettitt on August 12th, 2011 11:50 am

    I don’t see any reason why an early restrospective CFA cannot scoop up purportedly ‘free’ work.

  2. Simon Gibbs on August 12th, 2011 12:20 pm

    A retrospective CFA would mean the advice is no longer “free”. Even with a CFA Lite there are some circumstances where even though the claim is not “won” the client may still be liable for some costs incurred under the CFA (eg upon failing to give necessary instructions or the client dying).

    If solicitors are not prepared to offer “free” advice they should not pretend they do.

  3. Kevyn Thompson Longmynd Legal Services on August 12th, 2011 12:50 pm

    Simon

    Don’t get too excited.

    When I was in practice as a solcitor I too had a free first interview.

    It was explained to the client that the interview was to evaluate whether there was a case worth pursuing.

    If not, no charge.

    If there was a case the Rule 15 retainer was expressed to include all work from the date of accepting instructions.

    Never had it challenged successfully

    The solicitor is inviting a client to explore the possibility of entering into a retainer without risk as to costs of the first interview no more

    Since a CFA can legitimately be expressed to be retrospective no problem methinks.

    Would love to be retained to oppose you hould it ever fight !!

    Kevyn

  4. Simon Gibbs on August 12th, 2011 1:05 pm

    A retrospective Rule 15 retainer is even worse.

    Imagine a plumber offering a free no obligation quotation. The client gets the quotation and goes ahead with the work and the plumber then tries to add on a charge for making the quotation.

    As a lawyer, would you advise the client they are liable to pay for the quotation?

    Only lawyers dealing with their own fees could imagine that a “free” one hour interview might be something you can charge £500+ for by the time a success fee is added on.

  5. Anonymous on August 12th, 2011 2:07 pm

    I assessed a bill, opposing it, in the North West a few years back.

    I produced evidence from the firms own website and flyers, demonstrating that they offered a free first consultation – no time limit was stipulated. The bill actually claimed 1 hour 42 minutes if i recall

    The otherside tried to argue this was their standard way of getting clients in rather than paying referral fees, and it was entirely proper to charge if there was a viable case, and signed the client to a CFA which covered everything from the start. The Partner concerned turned up at the hearing, arguing an adverse finding would severely effect their day to day business

    The RCJ agreed with me (and therefore Simon) that from a consumer protection viewpoint, if you state something is free, then free it must be, and notwithstanding the ability to enter a retrospective CFA, such would not displace any prior “agreement” on fees, which contractually was what the advertised “free interview” was.

    The bill was declared miscertified; the interview disallowed entirely; nothing allowed for the partners time signing nor the draftsmans fee in view of the miscertification decision

    The Claimant was given leave to appeal given the Partners comments. I am aware they took Counsels opinion, then agreed to abandon the proposed appeal

  6. Pete B on August 12th, 2011 4:18 pm

    I appreciate you guys are experienced in the field, but I’m going to wait and see what Amanda Holden has to say about it.

  7. Jacques Hughes on August 13th, 2011 6:32 am

    It depends how it is phrased. If the first meeting is “free”, no strings, then Simon is correct. If it is simply “no obligation” then Kevyn is.

  8. Robert Pettitt on August 14th, 2011 10:21 pm

    The point is an arguable point (it is not black and white) and the court can find that free means free forever. However, the outcome of Anon’s hearing, with the slashing of the bill drafting, checking, etc is a nonsense outcome and I find it highly unusual. It’s like saying that the inclusion of ‘funding’ costs invalidates the bill.

    I suspect that the point was not given sufficient effort/ argued properly by the receiving party’s advocate in anon’s case.

    The consumer protection point is technically weak. The agreement to include previously-free work as chargeable within the retainer is part of the consideration. The claimant is not obliged to enter into the agreement and can walk away without paying a penny. It is not the same as a plumber adding a ‘free quote’ into the job cost AFTER he has started the work. In Kevyn’s scenario (which I assume is the common situation) the substantive work has not usually been initiated at the point the CFA is signed: Free check, CFA sent, CFA signed, case investigated.

    I accept that ‘no obligation’ is a wiser choice of words, but I do not accept that ‘free is free forever’. Just like in Forde v Birmingham City Council the CFA replaces the earlier agreement and the earlier agreement ought not even come into the judges consideration on assessment provided there is consideration and no undue influence.

    Of course, it depends on the facts. Specifically: the timing of the CFA and the information given to the client.

    And the DJ on the day. No party will realistically raise appeal over 30min to 2 hours of costs.

  9. Anonymous on August 15th, 2011 2:02 pm

    thanks for the critique, Robert, but the claimant was represented by a highly regarded Costs Counsel whom fully argued the point for the Claimant.

    The bill was mis-certified as it claimed for costs which were not payable by the client because they were free – i find it disturbing you have diffulty with that position, or that the RCJ’s “punishment” for that should be “unusual” – what do you say he should have done when a certified bill is found so wanting?

    The claimant was influenced to attend the solicitors office, caused by the advert for a “free initial consultation”. The consumer protection point was perfectly sound as it is the claimant whom is the consumer, and in the face of conflicting documents i.e. free advert and following CFA, then the court are going to find in favour of the consumer, as the alternative is that the consumer was bound to pay the solicitors charges for a time when he was told there was no charge at all for the work.

    Regarding your final comment. you missed obviously the attending Partners submission as to the effect on his business plan obviously, but clearly also you dont experience too often the many Defendant negotiators out there whom Appeal on whatever their current whim is irrespective of the costs involved

  10. Robert Pettitt on August 15th, 2011 8:11 pm

    Anon,

    I would be keen to see the judgment in your case. Is it available on Lawtel or can you e-mail me a copy? I do genuinely wish to explore the consumer protection point in particular.

    I have no difficulty in the court finding that the ‘free’ work is irrecoverable inter partes. There are a myriad of facts that can explain this finding, almost all to do with failure to advise on the effect of the agreement. Similarly, I see no problem with the courts penalising a party where the bill is mis-certified.

    There are a number of points that I have difficulty with:

    1. Disallowance of an item in the bill or a category of work resulting in a finding of mis-certification, when the item(s) claimed is arguable and, as Kevyn points out above, is not successfully challenged in front of another judge on another day.

    2. The consumer protection point being the winning point. I really would like to see the submission on this point. I have explained my thoughts on it and have had no proper response that knocks it out. I repeat my scenario for clarity: a client takes advantage of a ‘free’ service; as part of a later substantive retainer (specifically a retrospective CFA) it is agreed that the work will be charged; the client accepts this and the solicitor cracks on or he doesn’t and they part ways with neither owing the other anything. Contractually it is sound, where is the problem?

    3. Counsel having not knocked out the consumer protection argument and worse still having received the costs penalty.

    I’ll swiftly touch on your other points, but would be very keen to stick to the issue of a) recovery of previously free work and specifically non-discretionary argument for no recovery.

    – I did not realise that the partner that attended the hearing did not do the advocacy. That was not clear from your original post. I made an assumption, my bad.

    – Highly regarded Costs Counsel still miss points and are often only instructed to pursue/defend narrowly (and they are only human, albeit very clever).

    – The business plan comment by the partner is a jury point. Any experienced judge would see it for what it is. When the CFA wars were in full action, did the judges care that they were putting solicitors out of business? Arguing for costs, because the alternative is ‘not fair’ is not a good argument. When it does come good, you will not find any sense to it in the judgment.

    – I don’t have much experience of opponents pursuing or appealing frivolous points. I did however receive PODs today in which the initial appointment time was challenged on the basis that most firms ‘offer it for free’. So not the challenge we are talking about, but simply ‘why don’t you do it how others do?’

  11. Anonymous on August 16th, 2011 8:45 am

    Goes to show how many Defendant draftsman out there latch on to Simon’s blog!

  12. roots manoova on August 17th, 2011 1:05 pm

    You are a consumer, you go on the pretense of free advice, you are lured/attracted by the same, very often because you have suffered loss & hardship that renders you inpecunious. Your advisor meets you, decides you do have a case from which they may very well make profit and then goes back and levies charges for that advertised free advice when the very basis upon which you proceeded and thus entered in to ANY agreement was that it was free. That is correct & ‘proper’? Really? I wonder who would sign up to that if it wasn’t under the pretense of a ‘no win, no fee’ arrangement. Is there not a distinction between a retrospective CFA with success fee element and making something that from conception was advertised & offered as free, then later become chargeable?

  13. Colin Goldring on April 3rd, 2012 7:07 pm

    It seems to me that the lay public will mis-interpret the ramifications of this post. This is particularly apparent from the comment left by ‘roots manoova’.

    The above posts are concerned largely with the indemnity principle; that the paying party only pays those costs for which the receiving party is liable to pay.

    Therefore when we are speaking about items being ‘charged’ we are actually talking about whether they are recoverable from the other-side. To answer the post by ‘roots manoova’ in particular; the ‘no win, no fee’ status quo remains; i.e. the client will still not be expected to pay out his own pocket for these consultation charges.

    As to my humble opinion on the CFA applying retrospectively, whilst I recognise that inviting client’s for a no-obligation interview is clearer, I think it’s irrelevant as:

    a) Just because a unilateral contract for a free consultation is offered, does not mean that the client in question has accepted (I would expect the disputing party to prove this) and b) the costs liability for that initial consultation has been agreed with the client (provided they have signed the retrospective CFA) and so form part of the contract and therefore the client’s liability for costs which should be recoverable pursuant to the indemnity principle.

    I reiterate my initial point for any lay readers (non legal); that even though the client is technically liable for those costs they are not billed for them which is the essence of the no win, no fee agreement. Costs are almost always limited to those recovered against the opponent and therefore the client is not paying out of their own pocket.

    The intention is to put clients, often impecunious as has been noted above, on a level playing field with what often are large corporate Defendants with bottomless pockets to Defendant legal actions.

    Anon appears to be speaking from a Defendant’s perspective and so all those reading his post, which incites the public to turn against the system that has been established to protect them, is bound to be biased accordingly.

    His ‘cited’ case for which he has so far declined to provide a transcript to prove its existence seeks only to detract from that system of protection.

    I may be wrong and am open to contractive criticism for my comments. Call me idealistic but I think Claimant lawyers seeking justice for others, often at their own risk and expense deserve to be paid in full for the work they are doing, why don’t the public support the lawyers fighting on their side? (of course as a Claimant lawyer I am biased myself!)

    Colin Goldring
    Broadgate Legal Solicitors

  14. Graham Clarke on December 20th, 2012 12:32 pm

    The free 1/2 hr was introduced in order that less well off people could take advice with no worry regarding wether or not they could afford the cost.

    This has now been subsumed by greedy solicitors who entrap ppeople with confusing, complex, fees that are in essence illegal. One day this will be resolved. until then the client loses.

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