I am a newly qualified solicitor. A whole three months has passed since that magic epiphany when I was suddenly expected to know what I was doing, and what is the best course of action for each client that instructed me. It is a big pressure, but, I am still alive (just). I want to just push that aside for one moment and assume I do know what is best for the purposes of exploration.
One of the most distinctive and essential tenets of being a solicitor is that ‘you must act in the best interests of your client…’. We are partisan; we are somehow to be a more eloquent, respectable and restrained version of our clients, released at court like some sort of ‘animal familiar’ to go out and achieve our client’s ultimate ends. Or are we?
When I was at university, one of my more eccentric tutors told me that aside from the decidedly dry and voluminous rule book, there are two central rules in private practice: ‘bill, bill, bill’ and ‘cover your backside’. I have realised this to be true in the last three months, but how does this fit in with one’s principal duty under the Code of Conduct? Often, I think, the instinctive desire to protect and ‘look after number one’ takes over.
I will give you an example. I saw a vulnerable client recently who is in financial difficulty and turned up at the office out of the blue with a warrant of execution seeking advice on it. This is a client who I know pretty well. The client owes the firm a sum of money in unpaid bills. I am not a civil litigation lawyer, but the document they were asking me to advise on seemed to be saying ‘pay X or we will come and take your personal possessions’.
They didn’t have the money immediately to hand and they didn’t know what to do. In the end, I had to say that I could not advise them and turn them away: first, because I am not qualified in that area of practice, but also because if they couldn’t pay the bills they already owe, no doubt the firm would not want to take this on. Also, if I was able to advise them and were free to say ‘if I were you, I would…..’ the solution may be contrary to the interests of my own firm (a creditor).
For me, that was very difficult. Despite what people think of solicitors I, like a lot of my colleagues, went into the job to help people and here I am putting my own interests first. Helping was always the knee-jerk reaction but gradually, the more you do the job the more adept at covering your backside you become, I believe. It is part and parcel of career development and you will not survive without it. I watch senior practitioners and sometimes I find it so hard to pick out the bits of their advice that are there for their own benefit and the bits that are there for the client.
Some of the clients I work with are not particularly bright or sophisticated and I see letters advising them of risks which they will never fully comprehend. This has everything to do with protecting oneself and nothing to do with achieving the client’s aims.
Lawyers get a bad press from the general public, but how else can you survive in practice? It’s a bit like the story about the increasing number of people driving four by fours, and others buying them because they know that if they get into an accident with a four by four they won’t last long unless they too are driving one.
If I were to practise completely altruistically and never think of my own or my firm’s interests then I would soon get the boot for not billing enough. I would also be exposed to claims left, right and centre, because I failed to shove a sentence in an advice letter the client would never read, saying something along the lines of ‘I know that your instructions are X, but just to warn that this could mean Y’.
I realise that some risks are germane to what the client is proposing and if they were not pointed out then I would have failed the client. But there is a fine line to be trodden. If a client wants to take a particular course of action, if you advise them of every single minute negative consequence that may arise, you will confuse them and they will never be satisfied with whatever they do. If you steer them in one direction you are taking a risk that it is the wrong one; but if you don’t, what benefit are you to them? As always, it is a question of who comes first; you or them.
I think it a very ironic interplay of circumstances that we are paid to take our client’s side and are professionally obliged to put them first – yet, because of our own profession suing other lawyers so successfully, and because by nature lawyers are high-achieving ‘type A’ personalities who have an inherent fear of failure, we have built up a professional culture of defensive practice which acts as a ‘survival of the fittest’ filtering system.
Name withheld on request