An English case has considered when instructions to put hopeless cases, or advance hopeless claims, may justify a solicitor terminating the retainer: Richard Buxton (Solicitors) v Mills-Owens [2010] EWCA Civ 122. And here’s a useful case note from Barlow Lyde & Gilbert. Of course this is the position in England; the position in Australia is not necessarily the same.
The English Court of Appeal also reminded lawyers of their duty to engage in fearless advocacy. Many barristers get paid handsome sums to speak on their clients’ behalves. Sometimes it is quite frankly embarrassing arguing points which you do not agree with, and which may not be very good. Nevertheless, if they are arguable, it’s part of the job, and such arguments must be advanced with as much persuasive conviction as can be mustered. There is a species of lawyer, a small majority of the general corpus, who expresses embarrassment about their client’s behaviour or contentions behind their back, lawyer to lawyer, wink wink, nudge nudge. I am speaking of speech which goes beyond making proper concessions. I regard such conduct with contempt. The same behaviour may be seen in Court, a little more veiled; Lord Justice Dyson, with whom the other judges agreed, said:
’44. Our attention was drawn to page 6 of Cook on Costs [2010] where there is a reference to the decision of Mackay J in the present case. The author says:
“If a client is prepared for a case to be advanced and wants the claim advanced on a particular basis which did not involve impropriety on the part of the solicitor or counsel, then it is no answer for the solicitor to say that he believes it is bound to fail and therefore he will not do it. Whatever one thought about the client’s stance, his instructions were firm and unequivocal as to how the case was to be presented and the solicitor ought to have followed them. The situation fell short of the line where the solicitor would have been entitled to terminate the retainer and the solicitors were not entitled for any fees for the work they had done. I suggest the solicitor should have continued to act and adopted the traditional coded message to the court used in these circumstances: ‘I am instructed to say’.”
45. For reasons that I am about to give, I consider that the appellants were entitled to terminate the retainer in this case. But I refer to this passage in Cook because I do not agree with the last sentence. In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it. He should not advance a submission but signal to the judge that he thinks that it is weak or hopeless by using the coded language “I am instructed that”. Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided.’
