Learning Outcomes
By completing this article, you will be able to identify and apply SRA Code of Conduct requirements on taking and acting on instructions, determining client authority, and properly managing the client engagement process. You will understand key definitions, professional duties, risks around third-party instructions, and best practice approaches, ready to tackle SQE2-style scenarios involving client onboarding and instruction-taking.
SQE2 Syllabus
For SQE2, you are required to understand the practical and ethical obligations involved in taking instructions and engaging clients. While revising this article, focus on:
- Taking and verifying instructions, including authority to instruct and client identification.
- The duty to act only for clients, or authorised persons, and to decline instructions if not satisfied as to authority.
- Recognising and responding to warning signs such as duress, undue influence, or capacity issues affecting client wishes.
- Professional conduct requirements regarding the retainer, client care, duties of disclosure, and risk management at the outset of engagement.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What should a solicitor do if they receive instructions from a third party on behalf of a client, but are not satisfied the third party is properly authorised?
- What steps must a solicitor take if they suspect that a client’s instructions may be the result of duress or undue influence?
- True or false? You may begin acting for a client before confirming their legal identity if you have met them in person.
Introduction
In legal practice, taking instructions and engaging clients involves a series of critical steps governed by the SRA Code of Conduct. SQE2 requires you to demonstrate not only knowledge of what the rules are, but also how to apply them—especially when instructions come from someone other than the client, or when there are concerns about authority, client wishes, or potential undue influence. Failure to manage these issues at the outset can cause misconduct, client complaints, loss of privilege, or financial and reputational harm. This article presents the essential rules, terminology, examples, and practical tips to help you excel on this core SQE2 topic.
Receiving and Accepting Instructions
A solicitor may only act on clear instructions from a client or an individual with proper authority to instruct on the client’s behalf. The SRA Code of Conduct is clear—solicitors should never assume authority, especially where instructions come from third parties or in less direct scenarios.
Key Term: instructions
Verbal or written communication from a client (or properly authorised individual) stating what they wish the solicitor to do.Key Term: client
The individual, organisation, or entity for whom the solicitor is directly engaged to provide legal services.Key Term: authority
The legal power or right to act on behalf of another, for example to give binding instructions to a solicitor.
If someone attempts to instruct you on behalf of another (such as a family member, director, or carer), you must verify their authority with appropriate, preferably written, evidence. Never proceed unless you are satisfied the instructions genuinely represent the client's wishes.
Worked Example 1.1
You are instructed by a company director to act in a business transaction. They sign the retainer, but you do not check if they can bind the company.
Answer:
You must check and confirm the director's authority to act for the company. If not satisfied, you should not accept instructions until you receive written confirmation (such as a board resolution) authorising the director. Failing to do so may mean you have no valid retainer, leaving you unprotected.
Identifying the Client
It is essential to know exactly who your client is before you begin substantive work. Ambiguity over client identity can undermine confidentially, privilege, and create conflict of interest risks.
Key Term: client identification
The professional process of verifying the legal identity of the individual or entity the solicitor is acting for, often using official documentation.
Solicitors must take proportionate steps to confirm identity. This is not just for anti-money laundering compliance—it is essential for meeting the SRA’s requirements, protecting privilege, and proper file management. For organisations, confirm not only the entity’s identity but the instructing person's authority.
Exam Warning
Many complaints and regulatory breaches arise from assumptions or shortcuts taken at instruction stage. Always clarify the identity of the client and the limits of your instructions at the very start.
Third-Party Instructions and Risks
Instructions sometimes originate from someone close to the client (family members, carers, business partners) or when a client cannot act for themselves (minor, incapacitated person).
Key Term: third-party instructions
Instructions purportedly provided to the solicitor by someone other than the client, often requiring extra caution to validate.
Always seek direct client confirmation where possible. Ask for written authorisation specifying the scope of permitted instructions and communication.
If instructions cannot be confirmed—such as with a vulnerable client, serious illness, or incapacity—review whether special capacity rules (e.g., the Mental Capacity Act) or powers of attorney apply and consult with your supervising solicitor about the next steps.
Worked Example 1.2
A daughter telephones you, stating her elderly mother wants to gift her house to her. She provides a signed note from her mother but insists her mother is too frail to visit your office.
Answer:
You must verify, independently, that the instructions reflect the mother's wishes and not the result of pressure or undue influence. Arrange a meeting with the mother, without her daughter present, where possible. If any doubt remains as to capacity or influence, you should not proceed and may need to suggest independent advice.
Duress, Undue Influence, and Capacity
Solicitors must not act if there is suspicion instructions do not reflect the client’s free will due to undue pressure or incapacity.
Key Term: duress
Unlawful or coercive pressure placed on a client, undermining the validity of their decision or instructions.Key Term: undue influence
Improper or excessive persuasion by someone in a position of trust, making the client act otherwise than by their true wishes.Key Term: capacity
The legal and mental ability of a person to make informed decisions and provide valid instructions.
If you suspect duress, undue influence, or lack of capacity:
- Arrange to see the client independently.
- Explain potential risks, consequences, and suggest independent legal advice.
- If not satisfied, decline to act and record the reasons.
Worked Example 1.3
You are asked to prepare a will for an individual in hospital. Their adult son provides the instructions. During your private meeting, the client appears confused and cannot explain the decisions.
Answer:
You should decline to take instructions or execute any document unless capacity is clearly established. Where doubts exist, suggest an assessment by a medical professional. Document your concerns and the steps taken to protect yourself from future claims or regulatory action.
Revision Tip
At SQE2, provide clear, client-focused justifications for declining or delaying acceptance of instructions where risk factors exist. Always document your process.
Formalising the Retainer
Once satisfied you have proper instructions and authority, and have checked for warning signs above, the solicitor must set out the terms of the retainer and issue a client care letter. This clarifies:
- The scope of the advice and services.
- Who will be the main point of contact.
- The costs and fees estimate or structure.
- Client and solicitor responsibilities.
Key Term: retainer
The contract, whether written or implied, defining the legal work and terms of engagement between solicitor and client.
A well-drafted retainer helps minimise misunderstandings and supports best practice.
Worked Example 1.4
A solicitor is asked by a friend to assist with a property purchase, but does not issue a formal client care letter, relying on a brief verbal agreement.
Answer:
This approach risks regulatory action and unclear client understanding. The solicitor should have documented the scope of instructions, confirmed the client's identity, and issued a client care letter.
Duty to Decline Instructions
Solicitors must decline instructions if:
- There is no sufficient evidence of client identity or authority.
- There are concerns instructions are not genuine or voluntary.
- They do not have capacity or resources to act in the client's best interests.
You must keep a careful record of your reasons for declining.
Exam Warning – Declining Instructions
It is better to decline instructions for professional or ethical reasons—and clearly record why—than proceed and breach the SRA Code of Conduct.
Key Point Checklist
This article has covered the following key knowledge points:
- Taking clear, direct instructions is a professional and regulatory requirement.
- Only act for a client or an authorised individual; verify all authority in writing.
- Always identify the client and, for organisations, the authority of the instructing person.
- Be alert to duress, undue influence, or capacity issues; act independently and confirm client wishes.
- Formalise the retainer in writing and issue a client care letter before commencing substantive work.
- Decline or delay in doubtful situations and document the reasons for your decision.
Key Terms and Concepts
- instructions
- client
- authority
- client identification
- third-party instructions
- duress
- undue influence
- capacity
- retainer