Good practice

Conduct and serviceRisk managementQuestion of ethics

Conduct and service

Make yourself clear

Complaints often arise from misunderstandings about what has been agreed between solicitor and client.

Maybe the client has misunderstood because the solicitor has used, what to the client, amounted to jargon.

More often though it arises from circumstances where the solicitor is convinced he has told the client something that the client later denies knowing about.

Whatever the circumstances, ultimate responsibility must rest with the solicitor.

If he cannot show that clear advice was given, a finding is likely to go against him if a complaint is made about it.

The point is illustrated by a case that also demonstrated another common feature, which is that when circumstances have arisen that give rise to a complaint, what is then later given as accurate and proper advice can easily be misinterpreted.

In this case, the solicitors were involved in a personal injury claim.

Fairly early on in the retainer the solicitors sent the client an authority which he was asked to sign.

It was the wording of the authority that caused the problem.

It authorised the solicitors to negotiate the claim on the client's behalf.

The solicitors obviously took this to include an authority for them actually to agree a settlement.

Unfortunately, the client did not.

Later, the solicitors wrote to the client telling him a claim was to be submitted for a figure the solicitor considered to be excessive and that he could expect an offer at a lower figure, the inference being that such an offer should be considered to be acceptable.

No doubt to the solicitor's surprise, the third-party insurers wrote agreeing to the original figure put forward and the correspondence was so phrased that it was susceptible to argument that it formed a binding agreement.

The solicitors triumphantly told the client of the settlement and, no doubt, were somewhat deflated when the client said he didn't want to accept.

Quite properly, the solicitors then advised the client of the dangers of failing to accept - but did not tell him that there was a danger that in effect, they had pre-empted the client by agreeing a settlement on his behalf.

He adamantly refused to accept the offer.

He now interpreted the advice he was getting about what could happen as, more or less, blackmail to force his agreement.

Later, when the solicitors were forced to admit the position, and the client recognised the inevitability of the situation, he complained.

The episode could have been avoided had the solicitors ensured that the client both understood and accepted what they thought they were asking him to agree to.

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.

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.

Risk management

Admin is not just for secretaries

How often do you review files to see how a case is progressing without any third-party influence? How often do you simply have another look at a client's file without being prompted by a new transaction, a reminder from a third party that something needs doing or a telephone call from a client asking to be updated? The answer is probably very rarely.

Regularly reviewing files is one of the easiest ways to keep on top of a case and to maintain control.

Cases which last longer than a month and may have activities which do not need to be progressed immediately benefit the most from regular file reviews, as they minimise the likelihood of missed actions.

File reviews need to be carried out on a regular basis to make them worthwhile.

However, just as important is the content of the files.

It is pointless when reviewing cases if the file involved does not have all the necessary documentation in it.

Files should contain:

l Letters of engagement, outlining exactly what work has been agreed between you and your client, and a time estimate for the job to be completed.

l All correspondence, faxes, letters and memos, to include explanations, if necessary, of why work will take longer than originally planned and outlining any new proposals or ways forward with the case.

l Notes/minutes from all meetings or telephone calls with your client, explaining what has been discussed.

l Logs of telephone calls taken by support staff when solicitors and associates are out of the office, so that you have a record of all calls which need to be returned.

l Hard copies of e-mails and faxes, both sent and received, no matter how trivial they may seem.

Remember, a hard copy of an e-mail or fax may be the difference between a successful case and a finding of negligence.

l Invoices that have been sent out - these act as a good reminder of jobs still needing to be progressed - in other words, if there are no recent invoices in the file then you know no work has been done since the last review.

It is also imperative that all partners, associates, trainees, paralegals and support staff know the procedures.

There is no point in keeping an up-to-date system if, when the principal solicitor is away, those picking up the work let things slip because the firm's processes have not been explained to them properly.

This all might sound like a load of boring admin which you don't have time to worry about.

However, a client needs to feel secure that his solicitor is in control of the situation.

One of the main reasons for negligence claims being bought against solicitors is the client feeling that only half a job has been done, that all areas have not been progressed properly and on time.

Therefore, boring it may be, but an up-to-date and regularly reviewed file is still one of your first lines of defence against claims of negligence from a client.This article was prepared by Alexander Forbes's professions risk management team

Question of ethics

Q.

I am acting in a conveyancing transaction for the buyer and I am also acting for his lender.

The client has told me that he has been made redundant, but that he still wants to continue with the transaction and he has asked that I do not tell the lender.

Can I continue to act?

A.

The information that the buyer client has given you is confidential to that client.

However, the lender is also your client, and you have a duty to disclose to a client any information that is relevant to their retainer.

The fact that the buyer is without employment may affect the lender's decision about offering a mortgage, so this piece of information is relevant to the lender.

However, you cannot disclose it without the buyer's consent.

Therefore, unless the buyer client gives you consent to disclose the information to the lender, you will have a conflict of interests and you must stop acting for both clients.

Please note

The 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.