A contractual retainer of a solicitor may be inferred from the conduct of the parties viewed in light of surrounding circumstances, but the de facto relationship of solicitor and client must be a necessary and clear inference from the proved facts. Where the evidence is equivocal and equally consistent with the solicitor acting for another entity, the inference of retainer will not be drawn. A subsequent statement by the party asserting the retainer that he 'had no solicitor for the deal' is admissible as some evidence bearing on whether the retainer existed, as distinct from evidence of the interpretation of an existing contract. An appellate court will not entertain new claims neither pleaded nor argued at trial unless exceptional circumstances are shown, including that all facts have been established beyond controversy.
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