Record it in writing

The Law Society is repeatedly amazed by the number of complaints concerning what was said at a meeting, where there is no written record that the subject was even discussed.

Almost inevitably, each side has a different version, leaving the Law Society in the unenviable position of trying to decide who is right.

Where there is no evidence, it is impossible to come to a decision - unless the subject of the dispute is something that should have been recorded.

In that situation, the benefit of the doubt goes to the client.

The basis of this approach is simple: it is the solicitor's responsibility to make a record of relevant and important facts and, if he does not do so, the client should not suffer as a result.

This principle is all the more enforceable when the subject matter of the dispute is something the Rules of Professional Conduct require to be confirmed in writing.

An illustrative case arose when solicitors were instructed to act in the purchase of a property.

The solicitors were instructed through an estate agent and, in due course, received mortgage instructions from the mortgagees in respect of a mortgage that had been arranged through a broker.

Five days after receipt of the mortgage instructions, the solicitors met the clients and the issue of costs was raised.

The solicitors said the client told them that the legal costs should be included in the mortgage advance, but they pointed out that they were not, and the client should go back and arrange for it to be done through the broker.

The client insisted that her understanding had always been that the costs would be included in the advance.

How a solicitor's fees are to be paid is a matter of importance to both solicitor and client, particularly when the issue was - as both sides agreed - specifically discussed.

It was surprising then to find that, not only was there no letter from the solicitor setting out his understanding of the situation and what he expected the client to do, but there was also not even a file note to indicate that the subject had been raised.

In these circumstances, the client received the benefit of the doubt.

The moral is clear.

At the very least, file notes should be made of important and relevant issues.

Ideally, the advice given should be followed up with a letter.

Correction

In the case study 'Costs information' (see [2003] Gazette, 24 July, 39), it was stated that the firm was ordered to pay 1,000 compensation.

In fact, the firm was ordered to pay 500 compensation, and its costs were reduced by 10,000.

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

Lawyerline

Facing 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.