The lien and the solicitor who finds himself practising certificateless

Update: More solicitors’ lien cases: Magnamain Investments Pty Ltd v Baker Johnson Lawyers [2008] QSC 245, and Stark v Dennett [2007] QSC 171, a case about who should be taken to have terminated the retainer and which sets out the law thoroughly.

Original post: As I have already noted in these pages, Issac B was given a holiday by VCAT, and told not to apply for a work ticket until next year.  Since then, things have got considerably worse for the iconoclast, but more about that in a little while. Cosgriff v Issac B & Co [2008] VSC 515 reveals that Issac B & Co’s practice was ‘transferred to a multi-disciplinary practice in which Malcolm Buxton is the principal legal practitioner.’  Naturally, you can’t sell your clients. If they don’t want any truck with the new owner of the business, it’s tough titties for the new guy.  So it was here: Issac’s former client went off and retained Slater & Gordon.

The question decided by Justice Byrne was whether the solicitor could maintain a lien in circumstances where his retainer had come to an end by virtue of his inability to practise. (As an aside, it is interesting that this is yet another decision of a case about a matter directly governed by the solicitors’ conduct rules, where the Court does not even mention them, as is also often the case in applications to enjoin solicitors from acting in the face of a conflict of duties.) The decision was that Issac B could not assert the lien, because he was taken to have terminated the retainer:

‘In my mind I should approach the question on the basis that the solicitor has, by his wrongful conduct, caused himself to be discharged. This is because his wrongful acts have rendered him legally incompetent to continue with the retainer. I prefer this analysis to that which would have it that it was the client who discharged the solicitor for his misconduct as was the conclusion reached in the Bodycorp Repairers[2] case. 10 In these circumstances the lien is determined. It would be altogether contrary to any principle of equity that a solicitor whose misconduct rendered a blameless client bereft of legal representation should nonetheless be permitted to retain the file so that the client was unable to retain fresh representation.’

The result was a product of the application of the law to that finding of fact.  The law was pithily stated by Justice Byrne as follows:

‘7 … Where a solicitor is discharged by the client otherwise than for some breach of conduct or misconduct, the solicitor is entitled to maintain their lien. Where the retainer is determined by the client for misconduct or breach of contract by the solicitor, the lien comes to an end. Where the solicitor discharges the client for good cause, then the lien becomes a qualified one. In this type of case, the normal practice, in England at least, is that the court will then order the solicitor, without prejudice to the lien, to yield up the papers requested for the litigation to the replacement solicitor upon an undertaking to that solicitor to allow the former solicitor access to them, and to return them on the conclusion of the litigation. The position is otherwise where the discharge by the solicitor is not for good cause, in such a case the lien comes to an end.

8 Whether it is the client or the solicitor which terminates the relationship is to be resolved in a practical way. Furthermore, it is clear from the judgments in the Court of Appeal in the Gamlen[1] case, that the power which I am asked to exercise is an equitable one and must have regard to discretionary factors which come into play having regard to all the circumstances of the case.’

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