Good practice

CONDUCT AND SERVICE

Honour your agreements

There can be only one thing worse than not telling a client what's going to be done - and that's telling him what's going to be done, then not doing it.

This applies to work done for a client in general, but is even more important when the client has lodged a complaint that has been settled by an agreement.

A firm of solicitors was acting in various matters for its client following the disintegration of his relationship with his long-time partner.

Among other considerations, this involved the transfer of the equity in two properties to the client.

Some of the work to give effect to the agreement reached amicably between the parties had been completed when the fee-earner dealing with the matter left his original firm and joined another, taking the client's files with him.

For some reason, matters then seemed to come to an abrupt halt.

After two years, the client, who seems to have displayed extreme forbearance, ran out of patience and complained to the Office for the Supervision of Solicitors (OSS).

However, even then, the client's tolerance does not seem to have deserted him because the issues between himself and the solicitor were resolved amicably.

Two years later, the client complained again that the work had still not been completed.

Again, remarkably, the issues were resolved by way of an agreement that the solicitor would return to his client some deeds and all his files, and he would refrain from billing the client for some other work that had been done.

Again, the solicitor failed to implement the agreement that had been reached and, for the third time, some 18 months further on, the client went back to the OSS.

Even then, when the OSS wrote to the solicitor asking him to implement the agreement that had been reached some one-and-a-half years before, the solicitor failed to respond.

As might be imagined, the OSS took a dim view of what had happened and ordered the solicitor, not only to implement the agreement that had previously been reached with the client, but also refund any costs that the client had actually paid and also to compensate the client in the maximum sum possible of 5,000 for the anxiety, frustration and distress he had been caused.

The solicitor appealed the decision - and even then, did so out of time.

Nonetheless, the adjudication panel considered it, upheld the original decision and further ordered that the conduct aspects of the solicitor's behaviour should be considered by the OSS.

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

Pre-action protocols

According to Alexander Forbes' solicitors claims service, litigation is still one of the main causes for notifications being made against solicitors.

However, the latest report also shows that although litigation accounts for 22% of all notifications being made against solicitors, it is still significantly less than in the past few years.

One of the most probable reasons for the drop in litigation claims is Lord Woolf's recommendation to introduce pre-action protocols.

The new pre-action protocol culture has alleviated some of the pressure on solicitors, and it has also taken away the need to win at all costs.

However, the knock-on effect of these pre-action protocols is that there is now a greater responsibility for solicitors to get things right.

In order to encourage 'protocol behaviour', solicitors need to build good working relationships with their clients.

Solicitors need to ensure that their clients' expectations are managed properly, and that they have explained the full implications of settling out of court, especially how it will affect the amount of costs awarded.

Before doing this, lawyers need to carry out a thorough risk assessment of the case as early as possible to ensure that pre-action protocols are the correct course of action for each particular client.

Solicitors also need to do the necessary research to ensure that any settlement agreed out of court is on a par with similar cases at the time.

A client does not want to see a similar case going through the full judicial review, and the court awarding much higher (or lower in the case of a defendant client) costs, than in their out-of-court settlement.

If the client does become dissatisfied with the outcome, then the law firm is at risk of being hit with a notification.

If this happens, the solicitors need to ensure that they are completely prepared to demonstrate that the advice they gave at the time was correct, and they will not have the benefit of a court ruling to back them up.

Therefore, all material involved during the early discussions and the subsequent advice given to the client, including research on similar cases at the time and any oral advice given to the client, is fully documented, and kept for the necessary amount of time, that is to say 15 years.

Although pre-action protocols are not mandatory, they do make good guidelines for solicitors to follow.

However, advising a client to take this course of action means that risk management procedures still need to be as stringently adhered to as ever.

A practice needs to ensure that it is protected against any notification which may be made, even years after the dispute has been settled.

This column was prepared by the Alexander Forbes Professions risk management team.

QUESTION OF ETHICS

Q I signed a declaration for a passport application for a former client.

Some six weeks later, the Passport Agency has sent me a copy of the passport application and asked me to confirm that the signature on the photograph is mine.

In fact, the photograph is of someone entirely different and my signature has been forged on the back of the photograph.

Am I at liberty to inform the Passport Agency of the true position?

A Yes, because when a solicitor corroborates a passport application for a client, it is understood that queries may be raised by the Passport Agency at a later date and the solicitor must be authorised to deal with them.

Therefore, you can do so without being in breach of any duty of confidentiality.

Even in circumstances where a duty of confidentiality would normally exist, this duty would be overridden if the client has attempted to use the solicitor as an instrument of fraud.

(See note 8 to principle 16.02 in the Guide to the Professional Conduct of Solicitors, 1999, eighth edition).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.

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, RedditchB98 0TD; DX 19114 Redditch; tel: 020 7242 1222.