Good Practice

Conduct and service

Don't let complaints mushroom

Time after time, complaints arrive at the Office for the Supervision of Solicitors that have assumed frightening proportions.

When analysed, it can frequently be seen how they started with some minor omission, but after this wasn't recognised and dealt with, the whole thing rapidly mushroomed, with further complaints perceived and added to the original by the disillusioned client.

The solicitors in the case below were instructed to act by the mother in a maintenance claim for her child against the putative father.

An application for legal aid was made and initially refused.

The solicitors were instructed to appeal, but because of a delay in the consideration of an application to extend Green Form cover by the legal aid authorities, the appeal wasn't submitted until eleven weeks out of time.

The problem was that the solicitors failed to explain the reason to their client.

The client thought the solicitors had delayed in submitting the appeal - so matters were immediately off to a bad start.

In fact, the appeal against the refusal of legal aid was successful and proceedings under the Children Act 1989 were issued.

A directions hearing was listed, followed by an application by the putative father for DNA testing.

Unfortunately, the solicitors omitted to tell the complainant of that hearing until the day before the due date, too late for her to arrange to attend.

The complainant also alleged that the solicitors had failed to respond to her communications over a three month period.

But an examination of the solicitor's file showed that the firm had written to her on no fewer than ten occasions and had also tried to telephone her several times.

In fact, the problem was that the solicitors had not given the complainant the copy documentation she had requested.

This was because they were also in dispute with the complainant about their costs in another matter and were claiming a lien.

All these complaints were then supplemented, when they were made, by allegations of carelessness, rudeness, conspiracy with the solicitors acting for the putative father, attempting to get the complainant's legal aid revoked and making threats - for none of which was there any supporting evidence.

However, when the solicitors responded to the letter of complaint, they only inflamed matters by not addressing the issues raised.

When the complaint eventually landed on the firm's desk, it was six pages long and listed 12 complaints, all of which had grown from the simple omission to tell the client why it was taking so long to lodge an appeal against the refusal of legal aid.

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.

LawyerlineFacing 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

Risky business

Over the last few weeks we have looked at how important it is to have good risk management structures in place.

As well as helping to obtain professional indemnity cover and reduce the likelihood of claims, the culture of risk management needs to be developed, ultimately becoming an accepted part of the thinking and daily practice of law firms.

It is unrealistic to believe that a law firm can, in a short time, implement a comprehensive risk management programme to reduce areas of risk arising out of the practice of law.

However, it is not unrealistic for firms to analyse the major areas of risk in their businesses and, as a priority, start to deal with them.

Over the next few weeks we will be highlighting some of the most frequent incidences of risk, and examples of claims, starting with lack of knowledge and experience.

Knowledge management is one of the latest buzz words.

By knowledge management we mean ensuring that the new cases you take on fit into the areas of your firm's knowledge and expertise.

Risk management and knowledge management should be taken forward together in an integrated fashion.

With the increasing deluge of regulation and new legislation, law firms need to ensure they have effective means to capture, manage and provide easy access for their fee earners to the information and know-how now required for each individual case.

However, our experience shows there are still many firms trying to advise on areas of law in which they have little, or no, experience and knowledge.

For example:

l A firm specialising in litigation was asked to advise a client on a licensing deal for a restaurant, which was outside its normal remit of activity.

No previous activity had ever been undertaken by the law firm in this specialist area.

Certain items were missed in the contract, resulting in a failure to satisfy the client's expectations.

A professional indemnity claim was made against the firm.

l Another example involves the issue of 'dabbling'.

A partner wanted to add extra value for his client and provided advice in relation to an area of the law unfamiliar to him.

The partner genuinely believed that he was helping his client by saving him money, but when the advice had failed to include important details, the client become disaffected and made a notification against the firm, claiming that he had been given bad advice, and that rather than saving him money, the firm had lost him money.

These are just a couple of examples where law firms have come unstuck in the past.

If either seem slightly too close to home, then this should be the wake up call needed to start reassessing the risk management structure and culture within your firm, and to start putting some more stringent procedures in place.

l This article was prepared by Alexander Forbes professions' risk management team.

Question Of Ethics

Q I am retiring shortly and will not be renewing my practising certificate.

Some years ago, the then Lord Chancellor granted me a commission to act as a commissioner for oaths.

It is my view that I can continue to act as a commissioner for oaths without holding a practising certificate.

Do you agree?

A In the main, solicitors rely on section 81 of the Solicitors Act 1974 to exercise the powers of a commissioner for oaths and section 113(10) of the Courts and Legal Services Act 1990 to use the title 'Commissioner for Oaths'.

However, as you say, in the past commissions were granted directly by the Lord Chancellor.

All individual commissions recently seen by the Law Society and the Lord Chancellor's Department provide that the solicitor may only act as a commissioner for as long as they continue to practise as a solicitor, which involves holding a practising certificate.

If your commission is worded differently, and you would like a view on the interpretation of it, forward a copy of it to the Law Society's professional ethics department.

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.