Clients ignoring your advice

When it appears that a client may act (whether by action or omission) contrary to your advice, or does so, you are placed in an invidious position. On the one hand, you must respect the client's right to make their own decisions. On the other, you must ensure that the client is properly informed of the risks and consequences of those decisions. No matter how obvious the risk may seem to you, a client may later contend that they did not understand the advice, the associated risks, or the likely consequences of ignoring it.

The key to protecting both the client and the firm is clear communication and good record keeping.

Reasons why a client may go against your advice include the following:

• The client may not understand complex legal advice or may be too emotionally involved in the case.
• Incomplete instructions from the client may lead to misunderstandings about the advice given.
• The client may accept the risks of ignoring the advice if they believe the benefits outweigh potential consequences.

If you find yourself in this situation, you need to stop and take certain precautionary measures.

Recommended steps include:

• Make sure that your advice is clear, unambiguous and expressed in plain language.
• Communicate clearly with the client, reiterating advice (explain the risks, consequences and available alternatives) and documenting all discussions in writing.
• Assess the client's understanding and mental capacity, ensuring they are fully informed before proceeding.
• Suggest further work or obtaining a second opinion if necessary.
• Where a client elects to proceed against your advice, write to them clearly identifying the advice given, the risks explained, and their decision to proceed notwithstanding that advice.

You will also need to consider whether you can continue to act:

• Consider the SRA Principles and whether your client's decision conflicts with your professional obligations.
• You can end the retainer on reasonable notice and for good reason e.g., if the relationship has broken down or if the client's actions create a conflict.

Further work:

• If the client wants to proceed against your advice, subject to the above, you may be able to agree in writing on a new scope of retainer.
• Provide fee updates and estimates for any additional work required.

If a client elects to proceed against advice on a matter of significance, and particularly where the decision may expose them to substantial legal, financial or commercial risk, you should ensure that the position is fully documented on the file as a client ignoring legal advice may lead to a negligence claim. You should read this note and write to the client accordingly, covering off all issues and taking particular care to meet the (high) duties of a reasonable solicitor, which will inevitably be judged with the benefit of hindsight, with the burden of showing the client had a fair understanding of the effect of its ignoring your advice. In all but simple cases you should call the General Counsel to discuss this before writing to the client with next steps and setting out the firm's position.