Conduct and service

Record advice givenThe Office for the Supervision of Solicitors (OSS) often receives complaints alleging incorrect advice.

These really amount to allegations of negligence and are not about standards of service, but quality of work.

The OSS advises the complainant, if they wish to seek recovery of the alleged loss, to take independent legal advice about pursuing a claim in negligence.However, if the complainant maintains that no advice was given, either at all or on particular issues, it is a different matter.

Where appropriate to give advice, the OSS will expect it to be given and for the solicitor to be able to demonstrate that it was given.These were the circumstances with a complaint on a variety of issues.

The solicitors had acted for a wife in matrimonial proceedings, including consequential financial issues.

One of her complaints was that the solicitors had failed to give advice on what would be a fair settlement.

When the case was settled, she did not know on which basis the settlement had been arrived and was unable to judge whether it was fair.

The solicitors insisted the complainant had been fully advised throughout.

However, when the file was examined it was discovered that during the two years of the retainer there were only three letters to the client and none contained advice.

True, there were attendance notes that contained statements such as 'advised'.

Others merely recorded that there had been an attendance and its duration but, unfortunately, said nothing about what had been discussed.

Nor were there any follow-up letters to substantiate the solicitor's protestations that everything had been explained in detail to the complainant.The solicitors had copied correspondence to the client, but that, by itself, was insufficient because it did not show the solicitors had advised on material matters.

For example, a Calderbank offer had been made, but there was nothing to show that the solicitors had advised about either its content or its effect.

Indeed, the complainant maintained she did not even know that her claim could be settled out of court and she had not received any advice about the nature of the matters she could negotiate on.Faced with the evidence, the OSS adjudicator had to conclude that the solicitors failed to advise when it was appropriate and proper to do so.

The solicitors were ordered to pay their client 750 compensation.When you give advice, make sure a record is made.

Not only will this show that advice has been given and about what, but may also be needed by the firm's insurers if a negligence claim is made against you.l Every case before the adjudication panel is decided on its individual facts.

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