Silence Is Not Consent: A Protocol for the Client Who Stops Replying

It happens in every practice, sooner or later. A matter is moving well. A draft is sent for approval, a statement is requested for signature, a settlement figure needs a yes or a no. Then the file goes quiet. The emails are read but unanswered; the voicemail is not returned; the letter produces nothing. The matter sits on the ledger, the clock keeps running and somebody in the office has to decide what happens next.

That decision is where firms get into difficulty — not because they act in bad faith, but because silence is easy to misread as permission. It is not.

Silence is not an instruction

Paragraph 3.1 of the SRA Code of Conduct is short and unforgiving: you only act for a client on instructions from that client, or from someone properly authorised to give them on the client's behalf. Nothing in that provision allows a firm to infer instruction from the mere absence of objection.

This matters more than it first appears. Many of the steps a solicitor might take to keep a matter moving are consequential and difficult to undo: serving proceedings, accepting a Part 36 offer, conceding a point in correspondence, releasing an undertaking, instructing a surveyor or expert at the client's cost. Each of these may be the right thing to do. None of them is the right thing to do on the strength of a hunch about what the client would probably have wanted.

There is a second principle in play. Principle 5 requires a proper standard of service, and a matter left to drift for months while the adviser waits for a reply is not good service either. The tension between those two obligations — do not act without authority, but do not let the matter decay — is the whole of the problem. It is resolved by process, not instinct.

The assumptions that cause the most damage

Three assumptions recur in the files that later become complaints.

The first is that silence equals agreement. It does not. A client who has been copied into a proposal and has not responded within a week has said nothing, in the legal sense, at all.

The second is that silence equals disengagement. Clients go quiet for reasons that have nothing to do with the merits: illness, bereavement, a business crisis, a change of finance director, a holiday, a misplaced password, or simple overwhelm at the volume of correspondence. Reading disengagement into a fortnight of quiet can lead a firm to close a file the client urgently needed open.

The third is that silence equals abandonment, and that the firm may therefore treat the retainer as at an end. Terminating a retainer is a step with its own rules, its own notice requirements and its own risks. It should never be inferred from a lack of replies; it should be decided, documented and communicated.

Authority is defined before the silence, not after

Firms that handle non-response well tend to have settled the question in the retainer letter rather than in the moment of difficulty. A well-drafted engagement will say something about how instructions are to be given, who may give them, what the firm will do if instructions are not received, and how correspondence will be escalated. It may provide for a defined period after which the firm will hold the matter, cease work, or render an interim account.

Where the retainer is silent on these points, the practical substitute is a written notice that sets out the position prospectively. A short letter confirming that the firm will take no further substantive step until instructions are received, that time limits continue to run in the meantime, and that the client may reinstruct at any point, does more to protect both parties than any amount of internal discussion.

A documented escalation ladder

A workable protocol looks something like this.

Day one. Record the request in a file note: what was asked for, when, by what channel, and why it matters. Note any deadline that the request feeds into.

Day seven. Follow up in writing, not by telephone alone. Confirm the request, restate the consequence of delay in neutral terms, and offer a call. A telephone conversation is useful; a note of it is essential.

Day fourteen. Escalate to a second named contact where one exists. Copy the supervising partner or principal. Keep the tone advisory rather than impatient.

Day twenty-eight. Send a formal holding letter. It should state plainly that the firm is unable to progress the matter without instructions, identify any dates that will pass regardless, confirm what the firm will and will not do in the absence of a reply, and set out how the client can reinstruct.

Each of those steps belongs on the file in a form that a stranger could read in two years and understand. Contemporaneous notes carry weight precisely because they are unglamorous.

Decision points: pause, hold or close

Sooner or later a partner must choose. Pausing is usually the safest course where the matter is contentious or the deadline is external: work stops, the client is told, the file remains open and the position is preserved. Holding — taking only protective steps such as diarying a limitation date or renewing an interim application — requires particular care and, ideally, explicit prior authority in the retainer.

Closing is the most consequential option and should be reserved for cases where the client has been given clear notice, the risks have been spelled out in writing, and any outstanding fees and papers have been addressed. Even then, the door should be left ajar: a client who returns after six months should find a firm that can pick the file up, not one that has buried it.

What silence never suspends

A limitation period does not pause because a client has stopped replying. Nor does a court timetable, an unless order, a contractual notice period or an undertaking. Where a date is approaching and instructions are absent, the firm's duty is to say so in writing, clearly and more than once, and to record that it did. In Leeds and in London alike, the files that survive scrutiny are the ones where the client was told the clock was running.

The habit that holds

None of this requires elaborate systems. It requires three habits: write it down, escalate on a timetable rather than a mood, and never let a substantive step rest on an inference. Silence, properly handled, is a manageable administrative condition. Guessed-at instructions are something else entirely.