What are the legal and professional conduct obligations, when a party decides to uncouple its relationship with their legal advisors?
In Timeshare a lot of legal companies have sprung up to offer a service to either extract consumers from timeshare clubs or seek compensation for damages-for any alleged breached which might have occurred in a particular relationship consumers has with a resorts and/or club.
Firstly the timeshare industry has managed to produce some Frankenstein law firms who peddle advice which results in those law firms obtaining a commission for legal services which they say you need and require.
Many law firms have sprung up purporting to offer legal services; in truth many are mealy sales companies offering the services of others for a slice of a cash pie. They “cold call” consumer on mass, using expensive collected data and pay others to call you-the consumer-so that they have an opportunity to sell a legal dream. These practises are unethical and in some cases immoral. They equally explain you cannot cancel you contracts or that the upfront fees you paid by way of deposit are non refundable. This report explains your rights with these “so called legal professionals”.
The questions consumer ought to contemplate asking anyone who peddles a legal dream is as follows:-
Are you qualified to offer this advice?
What are your qualifications?
What professional association do you belong to?
Are you insured?
Where is your authorities “which backs up the representations you make”?
Is your firm located in the UK?
Are you regulated, if so who by?
Do you operate client accounts, if so is it independent of your trading accounts and accounted for separately?
Do you comply with the money laundering regulations?
Have you ever been a timeshare salesman or worked in the timeshare industry?
Has your company or any of its directing minds ever been engaged in selling timeshare?
Have you or the directing minds of your company, ever received a consideration by the timeshare industry?
If and when you obtain full and written responses to all these questions, you will be a in a position to make a realistic judgment and as to the quality of the person and/or company who is engaging you and/or attempting to sell you a legal action.
Selling Litigation!
There is nothing wrong with a lawyer advertising their enterprise and asking clients to call to their office with a view of extracting information from you. This information will allow the lawyer to tender initial advice-in respect to the quality of your case and the prospects.
What should never happen is selling. Legal advice and selling should never go hand to hand. It is in breach of the rules and regulations of every legal professional. If any solicitor, law firm or LLP act in this manor they will be abandoned by their institute and profession.
They should merely express an opinion and leave you to ‘mull’ matters over and decide whether or not the advancement of a legal action is the correct thing to do balanced against the loss of quite enjoyment you will lose whilst pursuing your case.
Pro Bono Work
Some legal practices do offer a free service to those who cannot afford access to justice; they do so for moral reasons and should be thanked for those actions and community spirit. That said, what has surfaced in the timeshare industry is sponsored industry companies who are in every sense profiteers. They make promises to do work for cost and/or free of charge. This will normally excite and induce clients so that those clients seek advice and representation from them.
What should be considered is why are they doing this? Why have they started a company with share capital and in pursuit of profit whilst provide their services free of charge?
In truth if they offer services FREE and the no charge was real, those enterprises would be in breach and/or contravention of their own Articles of Association (AoA). These AoA’s govern the firm or company. Two matters could flow from this question either their service is temporary to generate a client base or that they doing the work for an entirely different purpose.
If that purpose is funded by the industry who you seek to legally hold to account, this could be classed as racketeering, as renderer of the free service is paid by your opponent. This could be a wrongful interference in that the 3rd party funder is covertly protecting their position ensuring-you don’t get the result you deserve or desire.
If you are represented by a solicitor and /or any legal representative and their practice is discovered, they will receive the wrath of the courts if exposed.
Avoid-Pro bono worker in timeshare-unless they are regulated legal professionals and never use connected parties paid for by the timeshare industry. By way of a simple analogy: “you would not ask the paid prosecutor to defend you if he was paid for by your accuser.
Legal Companies who expect you attend presentations which are designed to “sell legal dreams” are mischievous, an assault on the senses and the legal entity will be directly accountable for their actions.
Consumers should always have in mind that such practises are abhorrent and if you complain to the courts, your case will be adjudicated by the judge who has sworn to act reasonable and just. Regardless of whether or not these companies are regulated or not they are in subjection the reasonable and proportionate behaviours and unfair terms. If the profession have established (which they have) that these kind of antics are unprofessional and wrong, they will have to side with you and in so doing the seller will be forced to return you money.
As most deposits are below £10,000, any claims will be dealt with by the small claims courts and you will not be at risk to huge consequences if you lose. Equally the judge who is appointed to your case will be regulated by the very instruments which you seek to show are reasonable and your opponents seek to suggest that their contracts terms conditions and ethics trump the judges own regulatory body.
So can you sack your legal advisors? Yes you can!
You don’t need a reason and you are not required to justify your actions in dismissing the legal advisor. After his dismissal you will have to pay for the services he has provided, however only up to the date of his dismissal. He may have a need in (contentious business) to inform others, however that work and the fees generated will be subject to a test of reasonableness.
Can your legal advisor terminate their services to you? No they can’t-unless they have just cause and/or a valid reason.
“The bottom line is that, while a client can in principle sack their solicitor without giving notice or a reason, a solicitor can only stop acting for a client with good reason and on reasonable notice, or with the client’s consent.
The relationship between a legal advisor and client is a contractual one. The Solicitors Regulation Authority Code of Conduct 2011 sets out in chapter 1 that legal advisor solicitor regulated or unregulated provider must treat their clients fairly and comply with the law and the code when deciding to terminate instructions.
This includes considering whether a legal advisor should cease to act because you cannot act in the client’s best interests and, if you stop, explaining to the client their possible options for pursuing their matter. This does not mean finding alternative representation, although a legal advisor can do that, but it does mean ensuring the client is aware of deadlines and court dates.
The reason for stopping has to be good, says the SRA, rather than ‘very good’. It gives examples including: the client losing mental capacity, but not in all cases; a breakdown in trust and confidence; the client insisting the legal advisor does something that would put the advisor in breach of their professional obligations; and a conflict of interest between the client and legal advisor or between two or more clients”.
‘Reasonable’ notice
Therefore reasonable notice is required by a legal advisor. According to the SRA, “reasonable notice will depend on the circumstances of the case and the reason for terminating the retainer. For example, if the reason is related to non-payment of costs, then it is likely that terminating the day before a court hearing could be considered unreasonable. However, if a legal advisor ceased acting some weeks before the court hearing this may be considered reasonable. A useful rule of thumb, the SRA suggests, is how long it would take a new representative to pick up this case from scratch to get up to speed – always assuming the client chooses to instruct another”.
With litigation, once legal assistance has agreed and parties have agreed to act in a case they must act until the sometimes bitter end; based on Underwood, Son & Piper v Lewis [1894] 2 Q.B. 306, a legal services retainer is one of entire contract.
In Richard Buxton (Solicitors) v Huw Llewelyn Paul Mills-Owens and the Law Society(Intervener) [2010] EWCA Civ 122, the Court of Appeal considered whether legal provider could terminate their retainer because they had been instructed to advance points that they considered to be unarguable and whether they were entitled to recover their profit costs.
The costs judge and court at first instance decided the firm could not terminate the retainer, even though the instructions were ‘doomed to disaster’, and so was not entitled to profit costs.
But the Court of Appeal said the firm had good reason to stop acting, adding: ‘The common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years.’
The Court of Appeal however warned against going to court with an unarguable case.
In Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust[2015] EWCA Civ 18, the Court of Appeal confirmed that a solicitor’s retainer is not automatically terminated if the client becomes incapacitated, and nor is a CFA.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk