Good practice

CONDUCT AND SERVICE

Consult, don't assume

Complaints to the Office for the Supervision of Solicitors (OSS) often involve several issues.

These give rise to further issues that were not themselves the subject of a complaint but which form the basis of a finding of inadequate professional service.

Often the issue was not raised by the client because he was unaware of the circumstances that would justify lodging a complaint.

When that happens, the best policy is to recognise the shortcoming and own up to it.

The point is illustrated by a complaint that arose after the client consulted the solicitors about an allegation of unfair dismissal.

It so happened that another employee of the same company had also been dismissed.

When they both launched claims, the tribunal suggested that the two cases be consolidated.

Without consulting their client, the solicitors wrote to the tribunal saying they had no objection.

When the second employee also agreed, the consolidation went ahead.

The solicitors later wrote to their client telling her of the consolidation.

The client complained that her case had been compromised by the consolidation and that the damages she was likely to receive would be reduced.

That was obviously an issue of negligence.

The view that the solicitors took was an exercise of their professional judgement.

Any challenge to that judgement is an allegation that the solicitors were negligent, the suggestion being that no reasonably competent solicitor would have given that advice.

As the central complaint raised issues of negligence, it was not something that the solicitors could be expected to deal with under their complaints procedure.

Nor was it something the OSS could handle.

However, it did raise another issue, although it had not been raised by the client.

This was the solicitor's failure to advise the client of the proposal to consolidate and to take her instructions on the matter.

She may have accepted the solicitor's advice, and the tribunal may still have decided to consolidate despite the client's wishes - but she was still entitled to her say.

The story illustrates the sometimes forgotten point that the OSS has a duty, when considering a complaint, to look at all issues that may come to light.

It is not restricted to those about which the complaint was actually made.

The failing led to a decision, upheld on appeal, that the solicitors should forego claiming any costs.

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

This case study is for illustration only and should not be treated as a precedent

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

Covering absent employees

One area of risk management where many practices fall down is how they cope with the workload when a partner is sick or on holiday.

This holds especially true for sole practitioners who face the difficulty of finding someone from outside who can oversee the work on behalf of their clients while they are away.

Probably one of the most important risk management procedures necessary in any law firm is a comprehensive filing system.

It is important that all documentation can be accessed easily, and that the filing system is kept completely up to date.

It is of no benefit to either the client or covering solicitor if all the latest correspondence and file notes have not made it to the appropriate file, but are still lying on the absent partner's desk.

Lack of up-to-date information can give rise to all sorts of complications which could result in a disaffected client and maybe a claim being made against the practice.

Across a practice there should be as many procedures in place as possible.

There will always be the odd maverick within a practice, and firms need not be run as communist states in which everyone has to comply to an exact set of rules.

However, although it is often fine for partners to do things their own way, problems can arise when your working practices are incomprehensible to everyone else in the office.

A sensible and straightforward way of working and keeping files is one of the most important aspects of good risk management.

Another area which needs to be kept updated at all times is the diary.

Many practices now have company-wide calendar systems which can be viewed by all members of staff via their computers.

However, there is still a tendency for some lawyers to use only a pocket diary, which means no one else in the practice knows what is supposed to be happening and when.

If your practice has a firm-wide calendar then it is vital that all key dates and deadlines are entered into the diary system.

If your firm does not have an automatic calendar system then you need to ensure that files contain all details of key dates and deadlines, and you have an up-to-date desk top diary which other professionals can access in your absence.

Workload is another issue.

Often if an employee is absent from work, then another partner, assistant or secretary will be asked to take over the workload until the absent employee returns.

However, before the workload is passed to a contemporary within the practice, a proper assessment of work already being undertaken should be carried out.

It might seem that you are saving money by asking a colleague to pick up the workload, but the possible financial loss, if work is not completed on time or not completed to a satisfactory standard could outweigh any of the savings made.

Often, it is far more cost effective to contract the work to temporary staff or locums as opposed to heaping more work on an already overstretched employee.This article was prepared by Alexander Forbes Professions' risk management team

QUESTION OF ETHICS

Q I have had a difficult relationship with my client throughout our retainer.

The client refuses to accept my advice and has made false allegations about my competence to act.

I have recently discovered that my client has posted further false accusations about my professional competence on a Web site.

My retainer has now come to an end but how should I deal with the information on the Web site without breaching client confidentiality?

A You should ensure that the client's concerns are addressed under your firm's complaints procedure.

You may wish to seek legal advice with regard to any defamatory remarks that have been made against you on the Web site.

You should also consider contacting the Web site administrator advising them that the information is incorrect and formally requesting that the information be removed from the site.

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.