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Reliance on off-the-cuff ‘advice’

Each month we consider conduct and practice issues relevant to busy practitioners. This month we will consider reliance on comments made by solicitors which were not intended to be ‘advice’.

Most solicitors are asked for informal advice by family and friends on a regular basis. There is unlikely to be a formal retainer in place. However, a solicitor may still be taking a risk if the ‘advice’ is relied upon by the recipient.

There is no hard and fast rule governing the situation where an informal chat becomes legal advice creating obligations, but relevant factors include:

 

  • the precise relationship;

  • the precise circumstances in which the advice or statement, or other information, came into existence;

  • whether the recipient could rely on other professional advice;

  • the precise circumstances in which the advice or information was communicated to the recipient; and

  • the opportunity (if any) given to the solicitor to issue a disclaimer.

 

Anyone seeking to claim reliance would need to establish that a duty of care had arisen and that the ‘advice’ was negligent and had caused loss.

So, what should the solicitor do in this situation?

 

  • decline to comment at all – particularly if the question falls outside their area of expertise;

  • recommend a firm specialising in the area in question;

  • make a general comment but with a disclaimer that any discussion is not to be relied upon as legal advice; and

  • indicate that any views are their own and not those of their employer or firm.

 

In addition, the solicitor must be mindful of their wide-ranging duty of confidentiality.

Solicitors should also exercise caution if making comments on an internet forum or similar – it should be clear to the reader that such comments are not to be relied upon as legal advice and no liability is accepted for such reliance and anyone requiring advice should consult a solicitor.

Remember that giving pro bono advice carries with it the same standard of care as advice given in a paid context.

The safest course of action is to avoid making comments or giving views in an informal discussion. Solicitors are still bound by the principles of practice and their professional duties even if they are only commenting in an informal context.

 

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