NSW Advice on my solicitor deciding to cease acting for me

Discussion in 'Personal Injury Law Forum' started by John9090, 8 January 2020.

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  1. John9090

    John9090 Active Member

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    I am looking for advice with regard to my solicitor deciding to cease acting for me.

    I engaged a solicitor about a year ago to act for me where I had an accident. I attended a meeting with that solicitor in December of 2019 to speak about settling the case with the defendant. After attending the meeting I asked my solicitor to allow me a period to reflect on the details of the meeting, and I requested all the case paperwork the solicitor had so I could review what had transpired up to that meeting.

    I followed the request for the case paperwork up two days later with a text to my solicitor where I explained that I would provide them instructions after they had sent me the paperwork they had agreed they would send me. I explained that I needed to fully understand and consider all the information, and only on this consideration could I provide them an instruction.

    I subsequently received two medical reports and the legal proceedings documents from my solicitor. There was no information from the defendant, or the defendant’s solicitors. I emailed my solicitor and requested the additional paperwork I believed they must have had.

    I received a number of calls from my solicitor between the day of that email and the 29thof December claiming they needed to speak to me about an urgent matter. I messaged my solicitor a few times and asked them to email me so that I could consider the details of anything they wanted to say to me, rather than me making any rash decisions that would negatively impact my case. At this time I re-requested the case paperwork and also confirmed to my solicitor that I would provide an instruction after they had sent me the paperwork they had previously agreed to send.

    I received further calls and texts from my solicitor requesting a ‘chat’ to which I requested that they email me. In one of those texts my solicitor explaining that she had the documents I was looking for, and that she would provide them to me, but that she wanted to chat with me first. I asked her to email me again and repeated that I needed to consider anything they would have to say to me, and that no matter what the circumstances or content of their proposed chat, I needed them to email me.

    My solicitor emailed me and explained that they had been provided an Offer of Compromise by the defendant, this figure was wholly unsatisfactory, however my solicitors letter also included a statement “based on previous instructions regarding your desired outcome of your proceedings”. I had not provided my solicitor any instruction, and I don’t accept that telling them to do nothing was an instruction. I was deeply concerned about this statement as it was patently untrue.

    I wrote to my solicitor an explained my concerns, and again requested all the paperwork they agreed to provide me, referring to my previous requests, their agreements to provide me the documents, and my need to see those documents so I could make an informed decision before providing them an instruction.

    That same day I received a notice of an intention to cease to act. My solicitors also said that if I did not provide them an instruction them they could not act for me.

    I am deeply worried about these things. My solicitor has not provided me paperwork they agreed to send me and I feel very vulnerable. I am worried that the actions of my solicitor will materially affect the value of my claim, but I am mostly worried because I just don’t know.

    When my solicitor has decided to resign or abandon me or cease to act for me, what should I do. Can they charge me? Can they withhold my paperwork?

    I have read through solicitor’s responsibilities and duties from NSW law website. I am doing my best to be a good client, but I am at a loss. My solicitor is a no win no fee solicitor. I never received a fee schedule from my solicitors.

    I want to be fair to my solicitor but I honestly feel they have not represented me very well at all, and I do not feel it would be fair if they used a lot of solicitory type moves to prevent me from moving forward with my case.

    I was injured in public, I am 62 and may have to retire early along with a whole host of other issues. I have never claimed before. I may not be able to afford to put my kids through college. One started this year. The other was supposed to start next year. My job pay’s 80k plus overtime which I do about 35k worth a year for five years. I can’t do overtime anymore, I am too sore. I can barely use my arm for anything. I might lose my apartment because I can’t afford the mortgage.
     
  2. Rob Legat - SBPL

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    I’m not surprised they are ceasing to act for you. The relationship between solicitor and client is one of trust, and that works both ways. Obviously if a client doesn’t trust their solicitor they should seek other representation. If a solicitor can’t get instructions or communicate with their client when necessary, then they can’t provide effective representation. The follow on from that is the solicitor may then fall into breach of their overarching duty to the courts and the administration of justice - which cannot be allowed to occur. This duty trumps that owed to the client.

    I’ve got no way of telling what the issues actually are with respect to the documents you requested, except to say:
    - In seeking instructions, a solicitor must make sure their client is aware of all the relevant information (otherwise they cannot make an informed decision);
    - We don’t know whether or not there were documents left to be produced but, if there were no more, then that should have been communicated to you; and
    - The request for urgent contact may have had nothing to do with that issue, and by refusing to make contact because you didn’t receive the requested email you’ve done yourself a disservice. Solicitors cannot, except in very limited circumstances, act without authority and instructions. With the benefit of hindsight, you should have called them back and as part of that conversation firmly stated what you wanted and asked why you had not received it.

    ‘No win, no fee’ has a lot of knobs and whistles to it. I don’t engage in it, so I don’t know what they are. They would have absolutely have to have given you a form of costs agreement however. It may not be a ‘schedule of fees’ as you put it. It could be a range of hourly rates per position and an estimate of possible costs.

    Generally speaking, your solicitor can charge you for the work done and exercise a lien over your file pending payment. Where there is an urgency to receiving the file, or in personal injuries matters, an agreement may be reached between you, the new and the old solicitors to allow transfer in return for an agreement/authority to pay upon settlement. You might also secure release by making an agreement for security of costs in return for releasing the file.

    Otherwise you’d need to take the matter to the Legal Services Commission or the Supreme Court.
     
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  3. John9090

    John9090 Active Member

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    Hi,

    Thank you for your advice. I appreciate what you've said, but I have clearly communicated to my solicitor, on at least six different occasions, that I needed them to send me paperwork they have themselves acknowledged they have, so that I can make an informed decision and instruct them as required. It's a catch 22 situation, because without that paperwork I cannot make an informed decision. My solicitor has plainly not answered questions I have asked and has now decided to resign from the case. I am not looking to beat them up, I really am not, but I feel if they are abandoning me because they have made some errors then they should not damage me in the process. All I expect is a fair handling of the matter, and that includes them not charging me for things they have not delivered.

    I don't think it would be constructive or wise or healthy to get into a they are to blame for this type of dialogue and I am looking for advise that helps me negotiate a fair ending of the contract with my solicitor where they have brought zero value to the process. I am not trying to be small minded or ungenuine when I say they have brought zero value, this is a very measured statement and I am very appreciative of any advice that lets me respectfully negotiate with my lawyer without placing unfair financial hardship on me.
     
  4. Rob Legat - SBPL

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    I suggest then that you telephone them and have a frank conversation in the exact terms you've just stated.
     
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  5. John9090

    John9090 Active Member

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    Hi

    I am genuinely grateful for your replies, but calling my solicitor to have a frank conversation is not an option. My solicitor has demonstrated to me that I cannot trust them, and it is in view of this that I have respectfully asked questions here. I appreciate that you would not want to foster bad relationships between other solicitors and their clients, that won't happen here as the relationship has already broken down.

    If you trust that what I am saying is true, and I hope you can, then I was also hoping to find advice here that would assist me stepping back from the relationship where the solicitor has NOT provided me a schedule of fees or any agreement that detailed fees, and where there was really no body of work completed. I was hoping you could have provided framework of language that I could use to allow both my solicitor and I to seperate without any feelings of animosity, and I would be grateful for anybody who is able to comment or offer good advice in this regard.

    Best Regards
     
  6. Rob Legat - SBPL

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    Well, respectfully, having the frank conversation with them is an option - albeit one you're not willing to entertain. It's also an important step as any form of dispute resolution is predicated on the basis of putting your grievance to the other party first to allow them the opportunity to respond.

    This isn't about whether or not I want to dissuade hurt feelings, but more about procedural fairness and setting up a situation where both parties can deal from a fully informed basis.

    I would wager that at the moment we have a situation where both you and they consider themselves the aggrieved party. That situation is not conducive to resolving the situation of relieving any feelings of animosity. Taking further steps will likely be considered adding insult to injury and, at the very least, is likely to see a response untempered by any consideration of your point of view - because they likely are unaware of it.
     
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  7. John9090

    John9090 Active Member

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    Rob,

    I agree with what you've said. In the initial posting I omitted that I had made pleadings to my solicitor based on my "deep concerns". I have no hurt feeling, but I am deeply concerned about the actions of my solicitor where I have requested paperwork they have agreed to provide but have yet to provide. I can see your advice is centred around dispute resolution, and I would agree that this is a best way forward in most circumstances. My original posting asked for advice where the relationship had broken down and the acting solicitor had provided a notice to cease, nobody is in the dark about where things are at. There is no place for hurt feelings, it clouds good judgement. I am only requiring what I believe is reasonable, and I believe it's reasonable to request information from my solicitor before making a decision about my case, information that is critical to tat decision that my solicitor has refused to provide me, I say refuse but I have asked at least 4 times for the information and it has not been forthcoming.

    As the client I can only do what I can with the information that I have, and where I don't have all the information I cannot make an ill informed decision, as it would damage me and my family.

    If you have any further advice that can help me negotiate a fair separation where I have not been provided a costs disclosure, and where I think both parties would agree the relationship has broken down, so that I don't get stung for a debt that I feel is unfair given the events.
     
  8. Tim W

    Tim W Lawyer
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    The relationship between lawyer and client has not broken down.
    You have deliberately failed to establish one.

    I'm not surprised that they sacked you.
    I will be further surprised if they do not bill you
    for their time and work to date.
     
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  9. John9090

    John9090 Active Member

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    I am sorry you feel the way you do, but I don't control your failure to react professionally, that's your responsibility. It's not a very professional answer considering the tone of my requests, but that doesn't surprise me. I believe people's efforts are best placed on positive outcomes, and unfortunately your comments serve no purpose other than to finger wag, bravo, aren't you the righteous one. Without the full facts I am, but also not surprised at this. I don't envy your clients. Best of luck, I can't manage a thank you because what have I to thank you for?

    Warm Regards

    J
     
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