David Buchanan-Cook: Power imbalance between client and solicitor must be acknowledged and addressed

How should the legal profession go about identifying potentially vulnerable clients?
How should the legal profession go about identifying potentially vulnerable clients?
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Across all sectors –both public and private – there is an increasing awareness of consumer vulnerability and a recognition of the need to adapt existing processes to identify these consumers and adopt measures to engage effectively with them.

Within the legal profession, this is as important as in any other sector. Solicitors provide a valuable service to their clients, and that service has to be tailored to the needs of the individual client, including taking into account the client’s potential vulnerability. But how do you identify a vulnerable client? Is it as straightforward as it sounds?

David Buchanan-Cook, Scottish Legal Complaints Commission

David Buchanan-Cook, Scottish Legal Complaints Commission

Rules provided to solicitors by the Law Society of Scotland go some way to defining client vulnerability and offer useful practical advice for dealing with vulnerable clients. However, there are places where the guidance appears to equate vulnerability with capacity, and it is implied that this will arise infrequently: “Often the solicitor will be able to check quickly and confidently that there is no question of vulnerability”. Is that really the case? Is vulnerability not more than that?

Most recent research on vulnerability tends to take the wider view that most individuals are, to varying degrees, vulnerable. It is also generally considered to be a fluid state in that we are all, or could all be, vulnerable at different stages of our lives, and in different situations.

With that in mind, this surely must pose real difficulties for solicitors in identifying which clients are vulnerable. It’s not simply the elderly or infirm, or those who lack capacity and require a Power of Attorney. Where a great deal of transactions will be distress purchases – stemming for example from relationship breakdowns, bereavements, immigration and asylum work, even the trauma of a house move – to what extent should these clients also be considered to be vulnerable? Fear, anxiety, depression or even simply uncertainty must surely be considered characteristics of vulnerability.

But there’s an even wider issue to consider when looking at vulnerability in legal work.

Research into legal complaints has identified that there is a power imbalance perceived by most clients in relation to their solicitor. In most situations, where the client lacks the legal knowledge, that makes perfect sense. They view their solicitor as the subject expert to the extent that they feel uncomfortable questioning anything that they perhaps don’t initially understand for fear of looking stupid. The very fact that a client needs legal advice puts them in a position of vulnerability. How widely is that identified, acknowledged and addressed by solicitors?

We see evidence in legal complaints that these factors are sometimes overlooked. The majority of complaints received by the Scottish Legal Complaints Commission relate to communication issues. Some of those stem from the fact that communication has not taken into account the client’s distressed situation – there can seem little or no awareness that something life-changing is shaking the client’s very foundations. Others use language and technical jargon that assumes that the client has a level of knowledge and understanding that is unrealistic. It’s also worth remembering that the average reading age in Scotland is only 11.

With all this in mind, the SLCC Consumer Panel is hosting a round table event in Edinburgh on 23 May. As a fringe event to this year’s Ombudsman Association Conference, which is being held in Edinburgh, the round table is designed to look at how best the legal profession in Scotland can identify vulnerable clients and adapt accordingly.

It’s a welcome move, and is already generating widespread interest. And so it should. It is only through fully understanding the nature and scope of vulnerability that measures can be taken to ensure that equitable service levels are provided for all, and that all clients are treated fairly.

David Buchanan-Cook, 
Scottish Legal Complaints Commission