Ban looms on suing staff for negligence

By Sue Allen

Solicitors could be prohibited from suing negligent staff for damages if proposals for a practice rule are endorsed by the Law Society's ruling Council next week.The Council will consider three proposals seeking to dissuade solicitors from pursuing staff - usually junior solicitors - for damages: the formulation of a practice rule; a formal statement from the Council 'criticising the practice of suing employees'; and the introduction of an indemnity rule prohibiting employers from recovering deductibles from employees.While the proposal paper accepted that Council members may not wish to constrain the legal rights of solicitors to sue their staff, it suggested that effective discouragement would only be provided through the introduction of a practice rule.

The rule would not preclude suits where staff had been dishonest or, in some circumstances, reckless.A formal Council statement would result in an 'unclear' disciplinary position for those in breach, it said.

Meanwhile, dealing with the matter through changes to indemnity rules would not stop principals from recovering deductibles from employees by suing for loss of profits, the paper warned.The move towards outlawing the practice of suing staff follows a long campaign by groups representing the interests of trainee, newly qualified, freelance, ethnic minority and women solicitors.

The groups say that the disproportionate representation of their members at the junior end of the profession, rather than as principals, makes them more at risk from being sued.Lucy Winskell, a partner in the Newcastle office of Eversheds and the Council member representing young solicitors, said the practice rule would be the best option as it would give any sanction 'teeth to bite'.

She added: 'It is not in anyone's interest to protect the reckless or fraudulent employee, but this is about protecting those who are not adequately supervised or trained, which is the fault of the employer.'Ms Winskell continued that while the problem might only occur in a few cases every year, there was a 'steady trickle' of cases which meant the problem should be swept away.

'It is bad public relations and bad for clients if they are being advised by poorly trained and supervised solicitors who are under stress,' she added.Young Solicitors Group chairman Sara Chandler urged Council members to take a lead and introduce the long-awaited practice rule.

Newly qualified solictors would lose confidence if faced with a regime of threats instead of support, she warned.

'It reflects badly upon the profession's reputation that there are solicitor employers who seek to recover the cost of mistakes from their employees,' Ms Chandler said.