party for whom a solicitor acts is called a client, and the authority by which the relationship of solicitor and client is constituted is a "retainer." The retainer need be in writing only when the acts it authorises are not to be performed within a year, or when the client is a corporation, or when the client will be next friend or relator in an action. The retainer of a corporation should, generally, be under seal. Where more clients than one join together in one retainer it is advisable that it should be expressly stated as " joint and several," so that their liability to the solicitor thereon will be joint and several, and not merely joint [see JOINT LIABILITY]. It is always advisable that a retainer should be in writing, especially when the solicitor is required to do a particular or special act. Thus, an authority to issue a writ should be in writing, for general instruc tions to a solicitor to act on behalf of his client in a particular matter do not carry with them an authority to issue a writ (Crossley v. Crowther). But, nevertheless, a retainer may be inferred from the conduct of the client and the circuinstances of the case (Morgan v. Blyth). Should a solicitor com mence an action, present a petition, or enter an appearance, without authority from the party for whom he affects to act, the proceedings may 'oe set aside and the solicitor condemned in costs (Geilinger v. Gibbs ; In re Gray ; Gray v. Coles).
A client can withdraw his retainer at any time, and by any mode which has the effect of discharging the solicitor from the matter or preventing him from continuing to act in it. And this is so even though there is an agree ment between the solicitor and client that contemplates a continuation of the solicitor's services until the settlement of the matter or until some particular event has happened or time arrived. The solicitor cannot prevent the withdrawal of the retainer ; he must submit to it and seek his remedy, if he has one, in an action against his late client for breach of contract (In re Galland ; Saffron Walden Building Society v. Rayner). On the other hand, a solicitor cannot so easily discharge himself from his relationship to his client ; he is assumed to have undertaken the matter in hand as a complete contract—to see it through to the end. Consequently he cannot retire from an ordinary action at law merely by giving notice to his client. He may, however, discharge himself after reasonable notice, provided he has a reason able cause. Such cause is most usually afforded by the client failing to supply hiin with the necessary funds wherewith to continue acting in the action (Court v. Berlin). But reasonable notice is alone sufficient in such matters as bankruptcy, winding-up, and administration (In re Romer and Haslain ; Underwood v. Lewis). It should be noted that under the ordinary retainer to bring or defend an action a solicitor has authority from his client to effect a reasonable compromise, unless he is expressly forbidden by the client to do so (Chown v. Parrott). Thus in an action to recover the price of a piano, the plaintifrs solicitor agreed to compromise the action on terms that the defendant returned the piano and paid a sum for costs ; and it was held that the solicitor had authority to effect the compromise (Prestwick v . Poley).
Duty to client is entitled to expect that his solicitor uses all diligence and a competent amount of legal skill and knowledge in the execu tion of the work entrusted to him. Should the solicitor fail in this respect he may render himself liable to his client for damages for negligence. It is impossible, however, to define the kind of negligence from which this liability must necessarily be inferred ; it depends in every case upon the care which the particular'employment is presumed to demand. In Godefroy v. Dalton, Chief-Justice Tindal said that the cases appeared to establish, in general, that a solicitor is liable for " the consequences of ignorance or non-observance of the rules of practice of this court, for the want of care in the preparation of the cause for trial, or of attendance thereon with his witnesses, and for the mismanagement of so much of the conduct of a c,ause as is usually and ordinarily allotted to his department of the profession. Whilst, on the other hand, he is not answerable for error in judgment upon points of new occur rence, or of nice or doubtful construction, or of such as are usually entrusted to men in the higher branch of the profession of the law." A solicitor can not always evade his responsibility to his client by referring the difficulties of a case to counsel. Though he can do this as a general rule, yet he cannot if he consults counsel in regard to a matter of which the law presumes him to have the knowledge himself. And it is not only in litigious business that the question of a solicitor's duty to his client may arise. There are, for example, cases in which trustees rely upon their solicitor's advice, and also the business of conveyancing which necessitates a scrupulous diligence on the part of a solicitor. The duty of a solicitor in advising trustees is very clearly
stated by Mr. Justice Stirling in Blyth v. Fladgate. His lordship said : " It is therefore the duty of a solicitor not so much himself to form or express an opinion on the value of the property offered to a trustee as security for an advance (though the law does not prohibit him from so doing if he thinks fit), as to see that the trustee has before him the proper materials for form ing a judgment of his own. He ought, therefore, to see not only that the trustee has before him proper valuations of the property, but that he is made acquainted with any facts known to the solicitor, and not appearing by the valuations, which may affect the value of the property, and that his attention is directed to any rules laid down by the courts for the guidance of trustees to such matters. That such rules exist is shown by the cases of Learoyd v. Whiteley, and In re Salmon. To those rules, therefore, it would be the duty of the solicitor to call the attention of the trustee whom he was advising." In regard to a solicitor's duty in conveyancing business the case of Pitman v. Francis, the facts in which were held not to disclose any action able negligence, is of considerable interest. There the solicitor was consulted by the lessee of certain premises with reference to the building of a wall, to the erection of which on the demised premises his lessor objected. The lease was shown to the solicitor. The solicitor made no inquiries as to whether there was any objection to building the wall other than what might be contained hi the lease. But it was eventually discovered that the land was subject to a restrictive covenant against any such erection in favour of the original vendors of the freehold, and so the wall, after erection, had to be pulled down. It was held that the solicitor had not been guilty of negligence, The fiduciary nature of the relation of a solicitor to his client is a very important element in the consideration of a solicitor's duty. The courts are always careful to insist upon the fact that by reason of the confidence placed in him by his client, his dealings with the latter must always be most open and straightforward. Whenever a transaction is proposed in which the interests of the parties conflict, as in the case of a sale or mortgage of property, a solicitor when a party should, as a general rule, require his client to seek independent legal advice in respect of the transaction! By adopting this course the solicitor anticipates, and to a certain extent avoids, the suggestion that he had an advantage over his client by reason of his legal and special knowledge and experience. But even by so acting the solicitor will not be considered by the Court as having dealt with his client with clean hands if his position to his client was such that he had special means of information which gave him an advantage in negotiating the transaction. It may be definitely stated, as a general rule, that a solicitor's purchase from his client of property in regard to which he has given advice or conducted litigation is always regarded with suspicion, and will not be sustained by the courts except upon ample evidence that the solicitor had dealt with his client in the utmost good faith, and had given him all the information he had obtained in regard to the value of the property. And the same principle applies to mortgages and gifts to a solicitor by his client. And the disability of the solicitor remains although the relation of solicitor and client has ceased, for it continues for so long a time as the reason for it operates (Luddy's Trustee v. Peard). A solicitor is not affected, however, by the absolute disability to purchase which attaches to a trustee. " But for manifest reasons," said Lord O'Hagan in ilrPherson v. Watt, " if he becomes the buyer of his client's property, he does so at his peril. He must be prepared to show that lie has acted with the corxipletest faithfulness and fairness ; that his advice has been free from all taint of self-interest ; that he has not misrepresented anything, or concealed anything; that he has given an adequate price ; and that his client has had the advantage of the best professional assistance, which if he had been engaged in a transaction with a third party he could possibly have afforded. And although these conditions have been fulfilled, though there has been the fullest information, the most disinterested counsel and the fairest price, if the purchase be made covertly and in the name of another, without conununication of the fact to the vendor, the law condem»s and invalidates it utterly. There niust be uberrimw fid,es between the attorney and the client, and no conflict of' duty and interest can be allowed to exist." solicitor has a lien for his general balance on papers of his client which come to his hands in the course of his professional employment, whether the services were rendered in the suit or matter to which the papers relate or for other professional matters.