Good Practice

Conduct and service

Managing expectationsOne of the most common causes of complaint is a failure by solicitors to manage clients' expectations.

The corollary is that when the client subsequently complains, the almost knee-jerk reaction of the solicitor is to try to shift the blame to the client for having those unreasonable expectations - despite the fact that the solicitor must shoulder responsibility for not having put the client right in the first place.The problem is that lay clients usually have no knowledge of legal procedures.

Sometimes encouraged by the press, they can easily harbour false ideas about what can be done for them and how fast it can be done.

Clients then complain when the solicitor fails to match such unreasonable expectations which have not been discovered and corrected.However, a case where that could not be said of the solicitors, but sadly, in which they let themselves down in another way, recently came before the Law Society's adjudication panel.It involved a claim for medical negligence.

After four years, the claim was about to settle.

However, the client lost patience and transferred instructions to another firm, which, soon after receiving the file, settled the claim.

It was able to do this only because of the advanced stage to which the first solicitors had progressed the claim.The client complained of delay on the part of the first firm and its file was examined.

This showed no evidence of delay and showed that the client had been kept up to date with progress reports.

However, the solicitors had gone further.

They had gone to some trouble to explain to the client, in writing, that civil litigation cases can take a long time to conclude, and why that was so, and that this was even more the case in matters concerning medical negligence.In short, the solicitors had done everything that could have been expected of them in making sure that the client had an accurate appreciation of just what would be involved in pursuing the claim and the length of time it might take.The client's complaint of delay was rejected.

It was, therefore, highly regrettable that the solicitors let themselves down by forgetting to tell the client about a payment into court.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.

Risk management

Money, money, money ...Conflicts over fees can present a significant business risk to firms and in the most extreme cases can lead to claims against professional indemnity cover.

With an increase in firms using new business specialists, whose sole purpose is to acquire new business for the firm rather than undertaking the work, careful risk management and effective procedures are essential to avoid potential disputes.Specialist new business partners are obviously operating within a competitive market, and to compete effectively fees have to be either on a level with other firms or below that at which competitors operate.

The result of this is many of these new business specialists are now operating on a fixed fee scale in some areas of legal work.

They promise the potential client that their firm can get the job done for a specific amount of money, no more and no less.

This is all very well, and one might think a sensible solution for the client, but what does this actually mean for the solicitor undertaking the work? Suddenly a solicitor is told he is supposed to get a certain job done for a specific amount of money, yet there is also the pressure to be profitable.

Often when the fixed fee is dissected, it turns out that it is practically impossible for a profit to be made on the old billing basis, the amount of hours needed to fulfil the case multiplied by the solicitors hourly rate.The solicitor is then left with two options if the case is to be profitable - he must reduce manhours or cut corners to get the job done at the agreed price, or he can ignore the fixed fee and charge more than agreed for the work undertaken at the end of the case.

Either way, there is a serious likelihood that the client will be dissatisfied, which may give rise to notifications being made against the practice.

So what should law firms be doing to stay competitive and not run the risk of a notification against them when it comes to fees? l The specialists approaching potential new business clients should give a realistic and approximate quote.

There is no point offering a good deal if is not achievable.l The new business specialist should sit down with the solicitor assigned to the job, and work out a reasonable fixed fee, which realistically takes in all aspects of work to be undertaken and the level of manhours envisaged.l Once the costs have been agreed, the letter of engagement should include the fixed fee price, with a proviso that if extra work needs to be undertaken, then an extra fee may be charged.l If the fee does need to be altered, owing to unforeseen work being thrown up, then the solicitor in charge should call the client immediately to inform them and to make sure they agree to the extra costs.

l Another letter needs to be sent to the client, outlining the telephone agreement to the rise in costs, the new fee and a detailed analysis of extra work to be undertaken.The main advice that we could give to lawyers, if they are to avoid disputes over payment from their clients, is that they need to be completely transparent with their fees and to keep their clients fully informed.l Written by the Alexander Forbes professions risk management team

Question of ethics

Q I'm an employed solicitor working for a commercial organisation and I have been asked to witness a statutory declaration as part of a Land Registry application for my employer.

I know solicitors in private practice have to get a different firm to administer oaths, affidavits or declarations in litigation matters, but can I administer the declaration in my circumstances?A Principle 17.07 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition says you should not administer oaths and declarations in a proceeding in which the solicitor is acting for any of the parties, or is otherwise interested.

This principle applies to contentious and non-contentious proceedings, and principle 4.01 of the guide makes it clear that you are bound by the same principles of conduct as a solicitor in private practice.

Therefore, you are not permitted to administer the statutory declaration and would have to get a solicitor from outside the company to do so.

To exercise the powers of a commissioner for oaths, a solicitor must have a current practising certificate.Please noteThe Solicitors' Publicity Code 2001 replaced the Solicitors' Publicity Code 1990 on 16 November 2001.

It also repealed Law Society practice rule 11 (names used by a firm).

The new code requires all firms to put 'regulated by the Law Society' on their notepaper.

Practitioners can postpone this until 1 January 2003 but only if they continue to comply with the 1990 code and the old practice rule 11.l Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions for publication to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch; tel: 020 7242 1222.