Franks MacAdam & Brown

•   Relatively few complaints arise because the solicitor didn’t know the Law.  The vast majority arise because of either a breakdown in communication, or in office systems.

•  Reverting to mad and bad clients, I noted that it is always a solicitor’s right to withhold agency: withdrawal of agency once activities have commenced is also the solicitor’s right, though careful timing is needed - there must never be any suggestion that the client has been prejudiced by “being left in the lurch”.

•  I mentioned some of the “classic” things that go wrong - forgotten closing dates, Court dates, forgetting to relay something that comes to be of importance in the survey report (perhaps because something else is concentrated on at that time, to the exclusion of a point that becomes important later), forgetting to register a charge at the Companies Office, and forgetting to intimate a second or subsequent charge.

• I mentioned the constant need to review office systems, looking specifically at the prudence of ensuring that faxed offers reach their destination timeously, and conflict of interest protocols.

•  I mentioned that it takes very little to “go wrong”, in an otherwise perfect transaction: and this can lead to loss of client confidence, and the likelihood of complaints arising.

• Statistically, an unhappy client will tell anywhere between 8 and 12 other people, whilst if you are lucky a happy client will mention your name to only 2 or 3.

• Time sheeting.  On the face of it time sheeting is an added administrative task, and expensive (if you buy in a system), but it is a useful discipline, and one quite easy to get into.  It is invaluable in your time and line work.  For fixed fee work it might appear to be less applicable, but can still be very useful in charting the course of the transaction, particularly with regard to phone calls, most particularly where a complex set of events evolves quickly.

• Checklists.  On the face of it a checklist might appear to be pointless to an experienced practitioner, who knows exactly what he is doing and does not need to be reminded.  Again, however, it is a useful discipline, and checklists are particularly useful where there are a number of members of staff involved - each can see exactly what has been done and what is yet to be done.  It indicates thoroughness to the CRO.

• Information sheets.  We put information sheets on the fronts of our files, to provide salient information.  With court files, there are indications as to when the next activities are scheduled to happen.  With conveyancing files it is helpful to be able to see at a glance the full names and contact details of the clients, the address of the property they are purchasing, the price, the entry date, the amount of the loan etc.  It is also a helpful place in which to insert important or otherwise unusual details - a retention having been made, the need to intimate a second charge, the need to register a Company Charge with the Companies Office etc.

• Diary system.  This is the firm’s safety net, to ensure things are not overlooked.  At its simplest, the desk diary will do.  Wall charts are also helpful.  And electronic diary system is similarly helpful, in that it can be accessed by all those who have computer access - nowadays, often, all the members of the firm.  (This means that no individual has to race round other people’s desk diaries).  With very important matters, it is important to have a back-up system, just in case the electronic one fails.

• Attendance notes.  There are a number of ways of doing this.  The time recording system may be sufficient.  For important or complex matters, it may be prudent to dictate or otherwise prepare a more detailed note.  It is helpful to write out to the client on occasion, noting that certain instructions have been given, that certain advice has been given, and certain action has been taken.  You can also point out where your expertise and task begins and ends - “I will do this, but there are tax implications and I do not pretend to be a tax expert: I would recommend that you consult your Tax Advisor before completion”.

• File review.  We are exhorted to review our entire filing cabinets on a periodic basis.  Clearly, this is easier said than done!  The active use of a diary system will certainly assist, and files can be reviewed on an individual basis.  Notwithstanding the inconvenience, it is a good idea to also review the entire filing cabinet, just in case something slips through the diary system. (Also helps identify “dead” matters, e.g. where client has decided not to proceed - saves the cabinet getting clogged).

• Lateral thinking.  Look at the clients’ entire picture.  A set of circumstances for one client might produce certain advice, which would be precisely the wrong advice for another client in an apparently similar situation, with different background circumstances.  Think to yourself whether the question that has just been asked is the only question that should be asked.  If you are volunteering advice, does it take in the entire circumstances?  Does it provoke further questions?

• <>Communication.  I suspect that few of us are as good communicators as we think that we are.  Let the client know what is going on at all times.  Give the client an indication as to what should be happening next.  A client travelling through a landscape that has been made familiar tends to be a happy client   
  

<>An informed client is a happy client.  If a given task is expected to take a certain amount of time, and your efficiency means that you come in ahead of schedule, but you have not kept the client informed of what you have been doing, the client might feel that corners have been cut and come to question the level of fees.  Conversely, if complications are encountered and the task takes longer, the client will be relatively content if the client has been informed of what the problems are, and what is being done to solve them: and will probably not balk at a higher fee.

• The “Drumsheugh Gardens approach”.  It probably sounds paranoid, but running through the forefront or the back of my mind (depending upon the complexity of the matter and/or the nature of the client), with every piece of work that I do - every phone call, letter or meeting - I think “if this was to fetch up at the Law Society, is what I am doing susceptible of any criticism, either with regard to Service, or Conduct?”  As I say, that probably sounds paranoid, but I feel that it is a useful spur to ensure that I am providing the best possible service to the client, and keeping myself safe in the process.

• Look out for signs that a client is unhappy.  “Body language” often says more than actual words.  The client won’t actually tell you that he is unhappy - but will probably tell the introductory source, if any - and that might dry up the future flow of work from that introductory source.  Conversely, the first indication that you might have that the client is unhappy is a letter from the CRO.  Look out for any signs of unhappiness, and meet them head on.

• Holding letters.  If the client writes in expressing dissatisfaction, it is probably a good idea to send a holding letter - an acknowledgement that the letter has been received, with a note that a measured response will be sent within a specified period of time.  That gives you time to consider the situation, and to prepare a fully measured reply.  “Sleeping on it” is often a good idea (instead of firing out a letter in the heat of the moment, when you might be upset), and it is amazing how your thinking will clarify, given overnight consideration.

• Apologies.  All some clients want is an apology.  You have to know your client, but acknowledging that something has not gone perfectly, and apologising, is often as far as you need go.  You do have to take care that you are not laying yourself open to anything wider.  Besides anything else, the Law Society recognises that the Test is not one of perfection, and things will sometimes go wrong that do not amount to being an Inadequate Professional Service.  It is as well to recognise and acknowledge mistakes.

• Read the letter, and any enclosures, carefully.  Even if a complaint was expected, it may not be coming from the angle that was anticipated - added to which, the complaint itself may be more, or less, serious than anticipated.

• Usually, there is no need to reply or acknowledge, at this stage.

• The CRO is firming up the issues (formerly called Heads of Complaint) with the client/ex-client.  This usually takes a little while.  Retrieve your file during this breathing space period, and review it thoroughly.  See if there are any points that you are likely to be willing to concede.  See if the client is coming at things from the right angle - sometimes clients simply fail to understand technical points, and this is the opportunity to prepare an explanation.  In short, prepare to respond.

• Consider separate representation.

• The conciliation stage will have a very short time limit.  Make good use of it.

• The client may refuse to try to conciliate, though this is unusual.  A solicitor will usually have a fairly good perception as to whether conciliation has any chances of success.  You are entitled to refuse to try to conciliate, but if there is any chance of resolving the matter by conciliation, take it.

• Ensure that you fully understand where the client is coming from.  Again, prepare carefully.  Be prepared to explain in detail points that the client may have misunderstood.

• Without necessarily giving anything away, be prepared to compromise.  The matter may be resolvable if there is a genuine wish on both sides to meet in the middle ground - though the client is likely to be less receptive if you stick to your guns and refuse to budge on any area.

• Remember, not all “failings” amount to IPS.  Such minor matters are best conceded.

• Let the CRO know what is going on.  Inform the CRO of what steps are being taken to arrange a meeting with the client, and what the outcome was.

• Should conciliation fail, the next stage is the Report stage, and the CRO will formally notify the Issues, call for your comprehensive response, and requisition the production of your file.

• Given the initial phases (above), you should be fairly well prepared by now.

• If the complaint is a complex one, it may take longer than the time stipulated in which to prepare the requisite reply.  The CRO will usually allow extra time if an explanation is given as to why it is needed.  If this is the case, send in an acknowledgement letter with comprehensive reasons as to why extra time is required.

• Stick to the points, and stick to the facts.  Remember, the solicitor usually has an advantage at this stage, in that the solicitor will usually have, from his or her file, more evidence that the client has - particularly if the file is well made up, timesheeted etc, with attendance notes.  (If the client says that you said this or that in a meeting - or fail to say this or that - the evidence of your file is more likely to be believed by the Reporter).

• If your file is out of order, there has already been the opportunity to tidy it up.  But do not “fillet” the file, and do not add anything that was not there already - if it is spotted that the file has been tampered with, at the very best your credibility will be damaged.

• Stick to points of relevance.  There may be all sorts of things that you wish to say, but if these go to cloud the core issues you might actually damage your defence.

• In preparing your “answer” letter, use plain, clear English - bear in mind that the complaint may go to a non-solicitor Reporter, and you want him or her to fully understand the explanation that you are giving.

• Use short paragraphs rather than long paragraphs - long paragraphs tend to cause the reader’s eyes to glaze over after a while!  You want to hold the reader’s attention (when preparing Reports I have a personal rule to try to contain each paragraph within eight lines).

• Don’t bad mouth the complainer.  If the complainer is patently unreasonable, he or she will usually do more damage to his or her position than you could possibly do yourself.

• Revert to the Law Society, with your “answer” letter and your file, on schedule.  Few things will exacerbate the complaint more than for it to appear that you have a cavalier attitude to dealing with the complaint.

• Acknowledge the return of the file, and of the Report, promptly.  If you feel that there is good reason that you may need additional time to make final representations, advise the CRO

• Read the Report thoroughly.  The Report should fall into two parts: the Facts and Circumstances Analysis being the first.

• The Facts and Circumstances Analysis should be both accurate, and unbiased.

• If the Reporter has picked up some facts incorrectly - which is entirely possible - this is the opportunity to correct any misapprehension by the Reporter.  Do this, if it is likely to alter the thrust of the Reporter thinking in your favour.  In practice, human failings being what they are, Reporters are often unlikely to wish to be corrected on minor or irrelevant points: conversely, some Reporters pick things up incorrectly, and their whole stance can be turned around if explanations and corrections are properly given.

• If you feel that the Facts and Circumstances Analysis has been biased or unfair in any way, make the point clearly, for it may come in useful in all that follows.

• Similarly, see if the second part of the Report, the Opinion, is a fair conclusion based on the facts.

• Again, do not stray off into irrelevancies when making your final representation.  Do not disagree with the Reporter if the Report is actually in your favour!

• f there is any additional evidence in your favour that the Reporter might not have seen or has overlooked, now is the opportunity to provide it.

• Respond, within the time limits that have been set.

• Again, make your representations clear, and easy to understand.

• Remember, the Test is not one of perfection.  The Test is what any other reasonable solicitor would have done in the circumstances.  There are failings (e.g. short delays) that do not amount to IPS.  Make these points, if needs be.

• If the complainer is patently unreasonable, this stage is the best opportunity to show the complainer up for what he or she is, usually best done by pointing to the complainer’s own words (bear in mind that the complainer will not see your final representations, nor you his).  This can produce a significant turning point.

• Even if the decision has gone your way, the complainer has rights (in certain circumstances) to go to the Ombudsman.  You will be advised of this, and of the advisability of preserving your file meantime - bearing in mind that the Ombudsman might recommend that the entire matter be re-opened, in which case you may have to start from scratch.

• Read the Committee’s decision carefully.  Even at this late stage, if the Committee has picked something up incorrectly, there may yet be an opportunity to have the matter corrected.  Theoretically this does not happen, but in practice the opportunity may exist.

• If you feel that things have gone against you unfairly, consider fighting on - but also consider whether or not this is worth doing.  (In a recent edition of the Journal, Simpson & Marwick appealed to the Discipline Tribunal about an IPS matter in which they were obliged to pay compensation of £100 to the complainer.  The Discipline Tribunal upheld Simpson & Marwick and dismissed the complaint - a success for Simpson & Marwick, but I wonder if this was economically viable?).

• Again, consider external assistance.

• If you are obliged to refund fees or pay compensation, ensure that this is done promptly.  It is not unknown for solicitors to fetch up at the Discipline Tribunal because they have failed to settle compensation etc in a case that was otherwise undramatic.

• Equally, remember to respond promptly at every stage.  Again, it is not unknown for solicitors to fetch up at the Discipline Tribunal simply because of failure to respond to the Law Society, where the original Issues were in fact dismissed.