Good Practice

Conduct and service

Managing expectations

It should be obvious that to be sure clients know things that are important to them, they have to be told.

That is often done without question when it comes to factors that materially affect the client's case, but how often is it done when matters of service are involved?

Judging by the number of complaints the Office for the Supervision of Solicitors (OSS) receives, which result from clients having unrealistic ideas about the level of service they can reasonably expect, the answer is 'by no means as often as it should be'.

It can save hours of wasted time spent dealing with complaints later in the retainer if only the solicitor would, at the outset of the retainer, take a few minutes to find out from the client what he expects by way of service, and then put him right where his expectations are unreasonable.

It has to be done at the outset.

There is only one chance to do this.

Once the client gets the idea he is being neglected or forgotten, it is too late.

It is no use then trying to explain the realities to the client.

By this time, the client has convinced himself of the situation as he perceives it to be, and reasons, good and valid though they may be, will be interpreted as excuses.

It is necessary to establish the ground rules.

And one essential part of this, both from the negligence risk management point of view as well as the complaints avoidance perspective, is to agree the terms of the retainer and then get these terms set down in writing.

When doing this it is vital to be both precise and concise.

Of course, clients do not like being presented with a long list of exceptions and disclaimers because it makes them wonder what on earth will be done for them and simply engenders an atmosphere of distrust.

So, to recap - be aware that failing to manage a client's expectations will likely lead to a complaint.

When the complaint comes in, do not try to put the blame back on the client for having unreasonable expectations if you have done nothing to find out what they were and to correct any misapprehensions.

Never assume knowledge in anyone and ensure the terms of the retainer are clear and agreed.

Every case before the adjudication panel is decided on its individual facts.

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 - part 2

We have looked at the complications which can arise if good risk management systems are not in place during the drafting of a will (see Gazette [2002] 27 June, 46).

This week, we are going to look at some examples of what causes notifications to be made against a solicitor when the will is in the process of being administered.

Timing is, and always will be, one of the main causes for notifications being brought against solicitors, and this is just as true with regard to wills.

Few people understand the amount of time it takes to administer a will, so it is important for a solicitor to give the beneficiaries a realistic time frame in which the administration will take place.

It is far better to manage the beneficiaries' expectations at the outset, rather than trying to explain delays and hold-ups years down the line.

Another area where timing is important, is in the drawing up of deeds of variation to change a will for tax advantages.

Beneficiaries have to be in agreement for the deed to be executed and a solicitor should ensure that this is so.

Often the solicitor may not fully understand the strict time limits in which a deed of variation must be executed and sent to the Inland Revenue.

Therefore, it is imperative that proper diary dates are set to ensure that no deadlines are missed, and the proper time limits are adhered to.

One problem that often arises when a will is administered is finding the proper beneficiaries.

It is sometimes the case that there is no immediate next of kin, for example, if the testator outlives their nearest relatives.

It is the solicitor's job to ensure that proper measures are taken to find the true beneficiaries and that the inheritance goes to the correct party.

If any of the inheritance is handed over to an assumed beneficiary, and then a closer relative comes forward, it will be the solicitor who could be hit with a claim.

All the research and advertising which has been undertaken to try to find the missing beneficiaries needs to be well documented in lawyers' files.

It will be these files which will be a solicitor's defence if any claim is made against the practice.

Storage issues are another reason for notifications being made against solicitors where wills are concerned.

It is important for the solicitor to insist on keeping the main document somewhere safe, and easily accessible.

Many people draw up their wills in their thirties, and may live well into their eighties or nineties.

Therefore, the likelihood is high that whoever represented the deceased when drafting the will is no longer practising.

So, it is important to ensure that as far as possible documents are easily retrievable.

These are just a few examples of causes for complaint from beneficiaries.

Of course, there are many more.

The drafting and administration of a will is an area of law which many people think it relatively simple, but what this column goes to show is that even the most supposedly straightforward types of work need to be properly managed and backed up with good risk management procedures.

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

Question of ethics

Q We act for a debt recovery company.

We allow the company to use our letterhead to send out the letter before action.

The address on the letter is our client's, not our address.

Does this mean that our client's office is an office of our practice and if so must it be supervised and managed in accordance with Law Society practice rule 13?

A Yes.

Your client's office will be regarded as an office from which you practise.

This is because your name appears on the letterhead and you are responsible for the contents of the letter.

Debtors will contact your client and assume that they are speaking to your firm.

Consequently, you will need to make sure that this office is supervised by a solicitor who is 'qualified to supervise', for whom that is his normal place of work.

A solicitor is qualified to supervise when he has held a practising certificate for at least 36 months within the past ten years and has completed 12 hours of training in management skills.

You will also need to inform the Law Society that the office is one of your practising addresses.

Please note

The Solicitors' Publicity Code 2001 replaced the Solicitors' Publicity Code 1990 on 16 November 2001.

It also repealed practice rule 11 (names used by a firm).

The 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.