Solicitors acting for two parties in a transaction should obtain a written retainer from both before agreeing to act, to avoid problems with professional privilege, a High Court judge ruled last week.

In Burkle Holdings v Laing [2005] EWHC 638, Judge Toulmin found that professional privilege could not attach to a solicitor's advice without a written retainer to demonstrate that there was a client relationship.


Solicitor Michael Kelly, partner at Taylor Walton in Luton, had drawn up a loan agreement that had been agreed by two parties. While Mr Kelly believed that he was acting for both parties, Judge Toulmin found in a preliminary ruling that, in the absence of a written retainer or other clear acknowledgement that he was acting for defendant David Laing, Mr Laing was not entitled to professional privilege.


Patrick Barton, assistant solicitor at McBride Wilson & Co in London who acted for Mr Laing, said: 'This type of situation will often arise where solicitors are acting for existing clients, and the lines become blurred, or in partnership law where they are acting for a number of partners. The judge is saying that you should draw clear lines with a written retainer.'