It is probably not known to many people, but I am a secret agent. Certainly Miss Money Penny appreciated James Bond 007, but as a lawyer being a secret agent is much less glamorous. I say secret, because the public do not always appreciate that the relationship is one of agency.
The old fashioned name for a solicitor is in fact a Law Agent. A solicitor is not an employee but is an independent party and acts principally as an agent when carrying out legal work for a client.
The concept of agency in the law has been known for years and much has been written on the topic. Agency can be established by a written contract such as a solicitor’s Letter of Engagement and Terms and Conditions of Business. It can also be set up verbally.
Where there is a contract of agency there are certain relationships which apply between principal and agent. The agent, for example is subject to the following:
- Fiduciary duties similar to that of a Trustee
- Obligations to act honestly and not take personal benefit
- Bound to adhere to the instructions provided by the principal. Of course, as a solicitor, if you are asked to do something which is illegal, unethical or against professional rules then you can refuse to act
- Must perform the requirements of the principal with reasonable care and skill and account for all intromissions and payments
As well as the above a contract of agency has other specifics. For example in certain cases an agent may not be entitled to delegate work due to the principle of “delectus personae” which means that a person to whom a matter has been specifically entrusted, must be the person that carries out that work. An agent is entitled to be reimbursed for liabilities incurred in performance of the contract and is entitled to remuneration which will also be detailed in the contract.
Sometimes arguments can arise as to whether someone dealt with a third party as an agent or as a principal. There are nightmare stories of solicitors putting in offers but not stating they are acting on behalf of a particular client and finding themselves personally liable for the purchase price of a property.
My legal advice is to make sure if you have an agency contract it is written down in plain English making it perfectly clear what the obligations of both parties are. Always take legal advice before proceeding.
Mind you it would be better fun being a secret agent like James Bond and driving an Aston Martin – well I do fancy that.