GOOD PRACTICE

Conduct and service

Managing expectations

Expctations must be managed if solicitors are to avoid complaints arising because clients are allowed to foster unreasonable expectations about the service to which they are entitled.

Certain precautions have to be taken.

The first is never to make assumptions about what a client knows.

It is perhaps trite, but nonetheless true, that no one knows what they don't know.

There seems to be a great temptation to assume that clients know things that are commonplace in legal practice.

But it is forgotten that the ordinary layman knows nothing about legal practices and procedures - far less the kind of service his solicitor intends to give or what it is reasonable to expect.

Also, the media encourage people to believe they are entitled to expect perfection.

A frequent response to such complaints runs along the lines of, 'The client must have known we were doing work', or 'The client must have known we were incurring costs.' Why must he? It might have been obvious to a lawyer, but not to a layman.

Consider what you know about the way your doctor runs his practice.

Do you go to your doctor's expecting to be seen immediately? If not, why not? The answer is that your doctor has told you that you have to make an appointment and that he cannot see you on demand except in an emergency - and even then, you know that you will probably have to wait until the end of surgery.

Do your clients know that, or do you assume they do?

Even more dangerous than making assumptions about what a client will know is to assume they all have the same expectations.

They won't.

Everyone forms their own ideas about what is reasonable.

What's more, because different people will have different expectations, it is virtually impossible for a solicitor's intentions about the service he is going to offer ever to match exactly any one client's expectations.

And, for every mis-match, there is a complaint waiting in the background ready to surface at any moment.

The great temptation is to say that in making a particular complaint, the client is being unreasonable and to blame him for having unreasonable expectations.

However, one should be prepared to ask why a client should know that his expectations are unreasonable.

It's not good enough to say, 'Well, it's obvious.

No reasonable person could possibly expect that.'

The answer to that is, 'Why not? Who has told him differently?' Which leads us neatly to the next precaution that we will discuss soon - inform the client.

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

Where there's a will, there's a notification

According to research from Alexander Forbes solicitors' claims services, notifications against solicitors practising family law makes up 6% of all notifications made against practitioners.

While this may seem like a small amount in comparison to residential conveyancing - which accounts for 23% - it is important that solicitors understand the potential financial risk to the practice.

A prime example, and one of the main causes of notifications under the family law umbrella, is will drafting.

A solicitor may only charge 100 to draw up a will for a client, but the potential damage resulting from incorrect drafting could run to thousands of pounds.

Below are listed some of the examples of notifications against solicitors which occur when drafting a will.

Make sure that the instructions of the will are completely clear.

It could be that even though you understand the client's wishes completely, and you and the client both believe the drafted document conveys these wishes, once executed there could be some areas which seem ambiguous.

It is always a good idea to have another solicitor at the practice, who has not been in the initial meeting, read the will to ensure that all the instructions are completely clear before being signed.

For example, ensure you understand the relationships between the testator and beneficiaries, especially with regard to the ownership of property.

Delays in drafting a will are a big cause of complaint.

It is far more common than most people think that someone in the last days of life wants to make alterations to a will, or even write a first will.

Therefore, it is necessary for a solicitor in this situation to ascertain the state of the client's health and act accordingly.

It might sound rather morbid to have to ask these questions, but it is important that the final wishes are met and included within the will, without delay.

A solicitor should ideally see the client on their own in the solicitor's office, and be satisfied that the testator is not subject to any undue influence.

The will should ideally be signed and witnessed in the solicitor's office, and the witness should not be a beneficiary of any kind to avoid any complaint of third-party influence.

If this is not possible, and the solicitor has to go to the client's house, then try to ensure that none of the beneficiaries is in the room at the time of taking instructions.

Another of the causes for complaint is tax advice.

Often a client will want advice as to how to ensure that the beneficiaries have to pay the minimum amount of tax.

With tax laws constantly changing, it is imperative to ensure that all advice is comprehensive, clear and up to date.

Therefore, the usual risk management tools need to be in place, even for something as seemingly simple as drafting a will.

Set proper diary dates and stick to them, ensure that all wishes are clearly and properly conveyed, make sure all advice given is comprehensible, and keep proper files and notes of all discussions which have taken place.

This article was prepared by Alexander Forbes' risk management team

QUESTION OF ETHICS

Q I have a long surname which is extremely difficult to pronounce and for convenience I use a nickname instead, which is a shorter version of my proper name.

Can I use this shorter version on my firm's letterhead, when writing to clients and on documents submitted to the court?

A On your letterhead you should use the name which appears on your practising certificate which is the name entered on the roll of Solicitors of the Supreme Court of England and Wales.

There is nothing to prevent you including your nickname on the letterhead as well as introducing yourself by your nickname or signing letters with that name.

Alternatively, you might wish to apply to the Law Society to change your name on the roll under regulation 7 of the Solicitors (Keeping of the Roll) Regulations 1999, see page 53 of 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, Redditch B98 0TD; DX 19114 Redditch; tel: 020 7242 1222.