The Implied Retainer – take care not to offend your PI PolicyAuthors: Simon Lusk
The duty to a lawyer’s clients is second only to a duty to the Court. A crucial and seminal part of that duty is to explain adequately, and preferably record, the scope of the lawyer’s retainer. The recent case of Polon v Dorian reemphasised that where solicitors do not establish a formal retainer, but act in a manner which conveys a lawyer-client relationship, a retainer may be implied.
This raises two key issues which are the subject of this article: the breadth of an implied retainer might extend to non-legal services; and this in turn may lead to coverage issues for lawyers under their professional indemnity insurance policies.
Significant cases, legislation or articles referred to
- New South Wales Professional Conduct and Practice Rules 2013, rr 3.1, 4.1
- Polon v Dorian  NSWSC 571
- Carey v Freehills  FCA 954
- Heydon v NRMA Ltd (2000) 51 NSWLR 1;  NSWCA 374
- IGA Distribution Pty Ltd v King and Taylor Pty Ltd  VSC 440
- Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 639;  NSWCA 258
- Corporations Act 2001 (Cth)
- Corporations Act 2001 (Cth), s 766A