Client or not?

Solicitors should bear in mind that, with one exception, they only have to deal with complaints about their service that are received from their clients.

If a service complaint is received from anyone else they can politely decline to deal with it because if they did, they would be in breach of their duty of confidentiality to their clients.

However, it should be stressed that complaints about conduct can be made by third parties.

The exception referred to above is complaints by non-clients in probate matters in circumstances where there is no lay executor to whom a residuary beneficiary can complain.

Therefore, in certain cases, the first question that a solicitor needs to ask if there is a complaint about service is: 'is this person my client?' The answer is not always so straightforward as one might suppose.

Take the example of the solicitors who received instructions from a son to prepare a power of attorney for his mother, giving him power to administer his mother's affairs and sell her house.

The solicitors visited the mother to try to obtain her confirmation that these instructions were in accordance with her wishes.

Unfortunately, they considered that the mother was so confused that she was incapable of giving that confirmation.

The firm told the son it would be necessary to obtain the signature of a doctor as a witness to the power, but left it at that.

No advice was given to the son as to the alternative of making an application to the Court of Protection.

Indeed, letters from the son over the next two months went unanswered.

The son then withdrew his instructions and complained.

The first issue to be considered was whether the son or his mother was the client of the firm.

The position is governed by principle 24.03 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.

This makes it clear that, had the mother confirmed the instructions, she would have become the client.

Furthermore, as a donee, the son would not normally be considered as the client, although there are exceptions to that principle.

The Office for the Supervision of Solicitors (OSS) decided that these circumstances constituted an exception.

Indeed, it appeared that the firm itself regarded the son as a client as it had given him information required by practice rule 15.

Consequently, it had failed to give the client relevant advice.

While the OSS will rarely question the quality of advice on the basis that such a complaint is, in actuality, a negligence allegation, that does not apply when no advice is given in circumstances where it ought to be.

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

This case study is for illustra-tion 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.