Conduct and service

Make a note

The importance of making notes of relevant and important matters and ensuring that they appear on a file cannot be overstressed.

It is even more important to ensure that this is done when the advice concerns issues on which the rules require advice to be given.

All costs advice should be given or confirmed in writing.

If this is not done, and a complaint results, the solicitor might still get some sympathy if he can show by means of a file note that the matter was discussed with the client.

If there is not even a file note, protestations that 'I know the information was given because I always do it' will fall on deaf ears.

While that might seem harsh, it must be remembered that the fee-earner might genuinely think that he did discuss the matter with the client because that is what he habitually does.

But how many times have we thought we have done something, or put something down in a particular place, 'because that's where I always put it', only later to find it somewhere else? Moreover, the fee-earner will have maybe a hundred files on the go, while the client only has one, and therefore it might be that the client has a more accurate recollection of what has or has not been done on his case.

A typical example was the case of a client who entered into a conditional fee agreement which provided for the client's liability to pay disbursements.

The solicitors knew that the client was not well off and was even having difficulty raising the premium for his insurance cover.

The client later complained that the terms of the agreement had never been explained to him and he added that he never realised that he was responsible for paying the disbursements, which ran into several hundreds of pounds.

The solicitors protested that they had explained the terms of the agreement, and had discussed with the client all the expenses he would be liable to pay However, there was no indication on the file that this had been done and there was not even a note to indicate that there ever had been a meeting with the client when the agreement had been discussed and the terms explained - a meeting that the client steadfastly maintained had never taken place.

The fact that the client ultimately recovered the disbursements was some consolation, but the fact remained that he was still caused financial difficulties before that happened - a lesson to ensure that significant events are recorded on the file.

Every case before the adjudication panel is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent

LawyerlineFacing a service complaint? Need advice on how to handle it? Contact Mike Frith at LAWYERLINE, the support service offered by the Office for the Supervision of Solicitors, tel: 0870 606 2588.