What is the effect of saying &quot;we reserve our (client&#39;s) rights&quot; when writing to another party to a dispute? In communication between parties to a dispute, the phrase we reserve our client's rights is often included. I've only ever seen this used by solicitors acting for a client in a matter, but I would imagine that it would have the same effect if used by one of the parties. What is the purpose and legal effect of including this statement, and what are the consequences of not including it?
It is done to prevent or at least provide a defence against a latter argument based on Estoppel; which at the risk of trivialising something that is very complex means that if you indicate to someone that you will or won't do something and they act on that indication then they may have a claim if you don't do what you indicated. When lawyers say this they are usually outlining a client's possible future actions so estoppel is in play. If they include this they are specifically saying "... But we might not do that."
In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded.
My questions are, where does this put me legally and what are my options? . . . Also, if I want to keep the tenants, how should I proceed? And if I don't want to keep them, do I have that option? Your Rights With Respect To The Tenants If the agency is telling the truth and the agreement made with the agent was for four tenants but their records and document only listed three by accident, you probably can't insist on additional rent or evicting the fourth tenant because if your agent does something on your behalf, that is binding on you just as much as if you had signed them up personally in that manner. This is true even if the agent didn't actually have the authority to rent the place to four people based upon your communications with the agent, because the agent has "apparent authority" to bind you in your agent's dealings with the prospective tenants. You probably have the right to insist that the fourth tenant sign the lease to conform to the actual agreement that was reached (four tenants in exchange for the rent stated in the lease). If the fourth tenant refuses to do so, that would be a repudiation of the lease/contract and would prevent him from claiming that he is a valid tenant of the property pursuant to the agreement reached with landlord through his agent. If the fourth tenant refused to sign, you could therefore insist that the fourth tenant pay additional rent or be evicted if you wanted to. On the other hand, if the agent is not accurately relating the facts, and there was never any agreement to have more than three tenants (as your communications with them and the written lease suggest), then you would have the right to evict the fourth tenant or insist on additional rent from that tenant. But, it might be hard to prove that the agent is not being accurate because it sounds like the agent and the tenants will testify consistently with each other and there were probably no other witnesses to the discussions between them. The Fourth Tenant Might Have Liability Anyway Also, at common law, you could sue the fourth person for unpaid rent during the period that the tenant was actually there anyway, since the fourth tenant was in "privity of estate" with you. (If someone actually signs the lease then they are in "privity of contract" with you.) England abolished the doctrine of privity of estate in most circumstances for residential tenancies in 1995. But, it is possible that this fact pattern is one of the situations in which the privity of estate doctrine remains in force since the 1995 reforms largely apply to assignments of leases by people who are tenants on the original lease, rather than occupants of a rented property who never signed a lease and never received a formal assignment. I don't have the legal research tools to confirm that accurately. But, none of the U.K. Landlord and Tenant Acts currently in force that I could locate addressed that issue, so the common law rule may still apply in this situation. If the doctrine of privity of estate does allow a suit against the fourth tenant based on occupancy without signing a lease, the incentive to even try to get the fourth tenant to sign a lease is very small indeed - you get no benefit at all from it other than slightly easier proof in an unpaid rent collection lawsuit if the agent's story is believed. If it doesn't the considerations earlier in this answer still apply. Practical Considerations All of this being said, there is also a practical consideration to consider. It you try to kick out the fourth tenant or impose additional rent on the fourth tenant, if the fourth tenant refuses to sign the lease, or if you believe that the original agreement did not include the fourth tenant, you still have to weigh the pros and cons of bringing an eviction or unpaid rent lawsuit. The lawsuit will cost you money (requiring you to advance money even if you are awarded attorneys' fees which may be impossible to collect from the tenants). You won't get your attorneys' fees for the lawsuit if you lose and will also have to pay their attorneys' fees if you lose. Tenants whom you are suing are unlikely to be cooperative on any other matter upon which you want their cooperation, and may bad mouth you, for example, in online consumer reviews. Unlike a typical eviction where the rent is not paid, it is very likely that the eviction will be contested, and if it is, the court could order the fourth tenant to sign the lease, but provide you with no other remedy if the court believes the story put forward by the tenant and the agent. If you don't sue, you won't incur attorneys' fees, you can still evict everyone if the rent isn't paid, you can still try to collect unpaid rent from three other people, and you are much less likely to have a dispute with or non-cooperation from the tenants. The only benefit you get from having a fourth person on the lease if that was the original deal (or if you can't prove that it wasn't the original deal) is that you have one more person you can sue for back rent if the rent isn't paid. If I decide to break my agreement with the agency, do I have grounds to do that? Terminating The Agent Often you can terminate an agreement with an agency without cause. If the agency agreement says that you can, you are free to do so and probably should because at a minimum they are sloppy and poor communicators. Generally speaking, even if you can't terminate the agreement without cause, you can terminate the agreement for cause, and the contradiction between their prior communications with you and their current communications with you probably constitute good cause to terminate the agreement both if they are telling the truth not, and if they are not accurately recounting the facts now. But, to be clear, terminating the agent won't affect the rights of the tenant. Suing The Agent If you clearly do lose money because the three tenants on the lease don't pay rent and for example, you get a judgment against them which can't be collected due to bankruptcy or them moving abroad to a place where it is not economical to collect a money judgment from them, or just not having any assets or income (or some combination thereof), and it turns out that the law does not allow you to sue the fourth tenant, and the fourth tenant was not judgment proof, you would probably have a right to sue the agent for the lost rent caused by the agent's negligence in failing to get all four tenants to sign the lease. But, the cost of proving that in a typical case would not be worth the money since this would be much harder to prove than simply proving that someone signed a lease agreeing to pay rent and didn't pay rent as agreed. If the agent didn't agree to pay for your losses voluntarily it might not be worth the time, trouble and risk of not prevailing in that lawsuit to pursue, even if you could get attorneys' fees for your suit against the agent if you won (which you probably could in England). The risks of doing that include paying the agent's attorneys' fees is you lose.
Jurisdiction: england-and-wales. You don't necessarily need to turn to tort law to find a duty of care. For example, assuming the customer is a consumer (i.e. not operating as part of their business) then the following sections of the Consumer Rights Act 2015 are relevant: 49 (1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill. 50 (1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if — (a) it is taken into account by the consumer when deciding to enter into the contract, or (b) it is taken into account by the consumer when making any decision about the service after entering into the contract. 57 (1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 49 (service to be performed with reasonable care and skill). 57 (2) Subject to section 50(2), a term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 50 (information about trader or service to be binding).
I’m guessing you have seen a sign in a business that read - “Management reserves the right to refuse service to anyone”. At least in the US, they do not need a reason as long as the reason isn’t unlawful discrimination. They can decide not to serve you.
What steps do lawyers need to take to protect client's confidentiality? Reasonable steps Are lawyers only required to inform clients that email, text, phone is unsafe communication with risks? Yes. Sort of. It's not a problem that these channels are unsafe, it's just the risk part. As was stated, US mail carries risk. Or are they in some cases risking a breach of client confidentiality even if they do? If they do... what? inform clients of risks? It is up to the lawyer to inform the client of the danger of using email. Certain cases warrant more precaution than others. The lawyer will need to weigh all of this. It is also possible that a heightened level of security makes communication too cumbersome or expensive. What if the client does not want to pay for the extra time it takes you to encrypt/decrypt? What if the client cannot figure out the software? No matter how sloppy the client is, it is incumbent upon the lawyer to protect communication. It's ABA Model Rule of Professional Conduct 1.6(a) that explains this for us. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent... continuing to paragraph (c): (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Comment 18 in part (relating to safeguarding information): unauthorized access...does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. continuing: Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). Comment 19 in part: *When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. Both instances require reasonable efforts - those an ordinary person would use. ABA Formal Opinion 1-459 tells us that A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. This comment pertains to specific situations, like a client emailing a lawyer from the client's work-computer. It does not specifically apply to hacker-threat. And to muddy all of this up, it's not only communication and information that is at risk. Property is also at risk and the duty to protect property is higher than the duty over communication. Secret recipes, customer lists, strategic plans - these are all forms of property and lawyers have special duties to safeguard client property. Comment (1) to Rule 1.15 says that a lawyer should hold property of others with the care required of a professional fiduciary. This is higher than the reasonableness requirement for protecting information. The fiduciary duty is the highest standard of care recognized by our legal system (the California rule calls on the lawyer to protect client secrets “at every peril to himself or herself” Cal. Rules of Prof. Conduct R. 3-100(A) (2013); see also Cal. Bus. &amp; Prof. Code §6068(e)(1) (2013)).
At common law, a tenant is entitled to "quiet enjoyment" of the property. This means that the owner can only interact with the tenant as spelled out in the lease or in an emergency situation. First, calmly and quietly write down a list of your grievances. Then check your lease to see what the landlord is entitled to do. Cross off any grievances that are permitted by the lease. Take this and the lease to your solicitor and pay him to write a letter to your agent advising them of your grievances and asking that they stop. Without knowing where you are, we do not know what additional rights and dispute resolution procedures are available in your jurisdiction. Very few jurisdictions still rely entirely on common law as real estate is one of the most highly government regulated areas of life wherever you are. Your solicitor will know and, for less that a week's rent will give you solid advice.
No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive.