Have the evidence available

Sometimes a complaint made to the Law Society illustrates various aspects of complaint handling that cause problems for the profession.

One such is the need to distinguish between service complaints and negligence claims and to appreciate that, in normal circumstances, firms are not expected to deal with what are, in effect, negligence allegations.

These raise legal issues and firms carry insurance to deal with them.

Regarding advice, the difference between what amounts to a service complaint or a negligence claim is crucial.

Giving wrong advice is a negligence issue, but giving no advice at all when it ought to be given can be either a service complaint or a negligence claim, or both.

Another issue is the necessity of ensuring that anything of importance to the client should be evidenced in writing.

Some solicitors become upset when they are accused of failing to tell the client something, because they are sure they did and say 'anyway, I always tell all my clients that'.

They may be right and the client has forgotten.

However, you should always record anything of importance.

If there is a dispute about this and no evidence can be produced to support your account, the client will get the benefit of the doubt.

One such case arose when solicitors were consulted by the sole director of a company that was being sued by another, which was in liquidation.

Various complaints were made about the solicitor's service, the most serious being the allegation that the solicitors had failed to consider making an application for security of costs against the claimant.

The solicitors protested that they had, and had told the client that he could do so - but the solicitor's file was silent on the issue.

It contained nothing to suggest that the solicitors had considered making the application, let alone that they had discussed it with the client.

The client got the benefit of the doubt.

One would normally expect to find written evidence that such an important matter had been considered and the client advised.

The failure to advise was treated as a matter of service.

Matters would have been different had the file contained evidence that the matter had been considered, but the client had, for whatever reason, been advised against making the application.

That would have raised issues of whether the advice was correct - and that would have moved the matter into the realms of a negligence claim.

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