Good practice

CONDUCT AND SERVICE

The unintentional client

Two issues that frequently cause problems are: when copies of plans are produced to a client, and when solicitors find themselves acting for someone they do not realise is a client.

In a recent case, the first of those situations gave rise to the second.

The problem initially arose because the solicitors who acted in the purchase of three adjoining properties didn't advise their clients that they were unable to guarantee that the land marked on plans, as being the land their clients were buying, accurately represented what the clients thought they were buying.

The clients were not advised to check that the boundaries on the plans corresponded to the boundaries on the ground.

Later on, it became apparent that each of the three buyers actually owned more land than their plans indicated.

Two of the purchasers, who had both used the same firm on their purchases, now instructed it on the rectification.

They asked the third, who had originally used a different solicitor, whether she would like their firm to deal with her rectification as well, indicating that it might well work out cheaper for her.

The third purchaser agreed and the other two made the request on her behalf.

Unfortunately, the solicitors failed to recognise that they now had a third client.

While they sent out all the information required under Law Society practice rule 15 to their original two clients, they did not do so for the third, but relied on their assurances that they would keep the third client informed.

In fact, nothing was ever sent to the third client until the solicitors submitted their bill at the conclusion of the matter, and the client then complained.

The Office for the Supervision of Solicitors (OSS) took the view that, at the very least, the solicitors should have sent the third client the information required by rule 15.

If, as was reasonable in the circumstances, so as to keep costs down, they wanted to correspond with all three clients through one of them, they should first have secured the agreement of all concerned.

The firm's response that it had not considered the third person to be its client was not, in the view of the OSS, sustainable.

The adjudicator required the firm to pay 300 compensation and halved the fees.

The solicitors appealed and the adjudication panel took a different but no more charitable view, reducing the compensation to 100, but reducing the costs to zero.

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

Induction for oldies

Modern technology has greatly increased the amount of work that can be completed in a day.

With the Internet and e-mails we have instant communication all around the world.

Clients that used to expect to wait for the post to arrive before receiving a solution to their problems now expect the response by return.

In many ways, technology has been a boon to the legal profession, enabling fee earners to deliver far more profitable work in a week than their predecessors would have dreamed possible.

However, in these days of a burgeoning compensation culture, technology has brought a major headache to partnership risk managers, with 'e-errors' running up claims and notifications across the board.

Let's take an example.

E-mail is so fast and informal that we tend to overlook that it can also be regarded as part of the documentation in any case.

There can be few people who use e-mail on a regular basis who have not sent a flippant reply they later regret - or worse - clicked on 'reply' rather than 'forward' and have sent a withering comment.

In one recent notification a partner forwarded an e-mail to the firm representing the other side, little realising that the message - which had been replied to many times within his own firm - included the basis of his client's case at the start of the e-mail.

Had he thought to scroll down and check the whole message he would not have inadvertently released confidential information that materially affected his client's settlement.

Interestingly, 'e-errors' are far more likely among senior staff.

Any partner much older than 40 started work in an era where everybody had their own secretary and the fax machine was a thing of scarcity and wonder.

In comparison, younger employees have used computers throughout school and university and use of new technology is second nature.

Technology is clearly an area within a firm where partners responsible for risk management should pay particular attention.

How many of the two-finger typists at the senior end of the firm are tuned into the risks of technology? In many firms a technology 'induction course' for senior staff may be a valuable addition to the risk manager's armoury.

In any event, close attention needs to be given to the risk of technology whatever the age of the operator.

Not only is there the risk of erroneous e-mail, but this is compounded by the risks of circulating inappropriate Internet content, harassment claims arising from e-mail 'jokes' and even the risk of sending a virus to a client.

Risk management procedures for Internet and e-mail should include sensible guidelines about what can and cannot be communicated or downloaded.

However, as with all procedures, perhaps the most effective solutions are the most simple - why not encourage a culture where all staff, whatever their level, ask a colleague to 'sanity check' external e-mails before clicking 'send'.

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

QUESTION OF ETHICS

Q Is it a requirement of practice rule 13 that all outgoing post is signed by a solicitor?A Management of a practice may be delegated, but the responsibility to ensure that the practice is adequately supervised and managed in accordance with Law Society practice rule 13 remains with the principals.

Therefore, it would be good practice for a principal to see all or at least a random selection of outgoing post.

You may wish to make special arrangements for letters with undertakings.

Q I am an in-house solicitor and do not have a practising certificate but am sometimes asked to 'certify' documents.

Can I do this or do I have to have a certificate?A When certifying documents, an uncertificated solicitor may use the description 'solicitor' provided that the document is not required to be witnessed by a practising solicitor.

The Law Society would not be happy that you are describing yourself as an 'in-house solicitor' without a practising certificate.

Such a description implies that you are practising, and would require you to hold a practising certificate.

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, Redditch B98 0TD; DX 19114 Redditch; tel: 020 7242 1222.