Conduct and service

Case studies and advice for solicitors on issues of misconduct, inadequate service, ethics and negligence

Failure to informLast week's article illustrated the problems that can arise when a complaints partner fails to keep an open mind when faced with a complaint and takes it literally, without appreciating that it had only been put as it was, because that was how it was perceived by the client.In that case the client had complained of delay when, in fact, the problem was that she had not been kept properly informed.The same kind of problem was shown in the cases of a complaint by Mr B against XX & Co.Mr B had been charged with serious criminal offences which he had instructed the solicitors to defend.

In order to assist with his defence, he had given XX & Co the names of several witnesses, who he said he wished to call to support his account of events.XX & Co interviewed all the suggested witnesses, but decided, with the concurrence of retained counsel, that it would not only be unwise to call any of them, but, in view of their own histories and the admissions that would have to be made if they gave evidence, to call them would virtually guarantee Mr B's conviction.

Accordingly the fee-earner decided not to call the witnesses.All would have been well had Mr B been acquitted - but he was convicted.

The reasons for his conviction had nothing to do with the relevant witnesses.

But Mr B was convinced that it was and complained that the firm had failed to follow his instructions.The client care partner could see why the witnesses had not been called and dismissed the complaint.

He explained that the fee-earner had exercised his professional judgement and that conviction would have been guaranteed had the instructions been followed.The problem, which the complaint handler had not picked up, was that the fee-earner had not bothered to explain to Mr B why he considered it unwise to comply with Mr B's wishes and the risks the client was running if he did so.

He had taken the complaint at face value as Mr B had expressed it, without appreciating that Mr B could express the complaint only in terms in which he perceived it to exist.

Again, the true nature of the complaint was not failure to comply with instructions, but failure to keep the client informed.

The complaint handler would have recognised this had he approached the problem with a genuinely open mind.

X Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.