A Solicitors’ duty to advise…for free?

The professional negligence case of Padden v Bevan Ashford Solicitors caused a stir amongst solicitors in relation to the pitfalls of not advising properly, even with the best of intentions and when the client is not charged.

The wife of a fraudster was told by his solicitor that he would go to jail unless he paid back around £200,000.  She was told that the only way to do this was to sell their house and use their savings.  The wife was told that she should seek independent legal advice as a formality.

The wife then went to another firm of solicitors, met with a newly qualified solicitor, briefly explained the circumstances and was advised by the solicitor not to sign the document.  The wife made it clear that she still intended to sign. She returned some days later to sign the documents, where a partner witnessed her signature and certified that the consequences had been explained and that she understood them, although it appears that no advice was given on that occasion.  She later sued the firm of solicitors for failing to advise her properly. 

The court of Appeal held that by signing the certificates, the partner at the firm had an obligation to advise the wife or satisfy himself that she had been advised.  The fact that no charge had been made by the solicitors and the fact that the wife had been advised not to proceed with the transaction did not mean that there was no case to answer by the solicitors. 

The case serves as a warning to all solicitors when handling enquiries.

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