David Buchanan-Cook: Read the small print – even when dealing with solicitors

David Buchanan-Cook is Head of Strategic Insight at the Scottish Legal Complaints Commission.
David Buchanan-Cook is Head of Strategic Insight at the Scottish Legal Complaints Commission.
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Since 1983, World Consumer Rights Day has been used as a means of raising global awareness. These days we seem increasingly to be asked to sign lengthy contracts for goods and services which outline our rights and protections as ­consumers. But let’s be honest – when you signed that ­contract with your latest mobile phone provider, or for that new washing machine, did you actually bother to read the small print?

Yet these documents are important for determining exactly what standard of service we should reasonably expect, and rights for redress. Legal services are no different.

When instructing a solicitor, ­consumers can expect a fairly detailed contract – commonly referred to as “terms of engagement” or “terms of business”. While each firm will have its own format, and terms should be tailored to you and the work you are instructing, they should cover the same basic elements.

It is important to check the terms. If something is ­missing, or unclear, it is important to ask the right questions to avoid any misunderstanding or unrealistic expectations.

This is also a chance to understand how the firm communicates and reacts to questions – if they can’t describe the service clearly does that affect your view of how clearly they will explain other issues?

The terms of engagement will ­outline the scope of the work you want done. It’s important to check this to make sure that you and your solicitor start off with the same expectations. It may be that the firm cannot cover all you want done, and the terms may suggest that you contract someone else for that part.

The terms should also give you at least some indication of the cost. Sometimes this will be under fixed fee arrangements – but even here check that there are no additional costs. Where the work is less predictable, you can expect to be given an ­estimate and/or an indication of hourly rates.

The same factors apply to timescales. Some work may require to be carried out to strict timescales to meet court requirements. Other transactions may be less predictable and take months, or even years.

When we employ a solicitor it’s ­usually in connection with a ­life-changing issue or problem and we may be anxious for regular updates. The terms of engagement should also play a very important role in helping us to understand the ­level of service that we have signed up for, for example, how often, and in what way, the firm will ­provide updates as the work progresses, and also who in the firm will be doing it.

The terms of engagement might also outline your own obligations and responsibilities. You will probably read that you need to keep your solicitor updated with any changes in your circumstances, including updates to your finances.

Often overlooked, but most important, is the need to update your contact details. More than half of the complaints to the Scottish Legal Complaints Commission (SLCC) are about poor or inadequate communication. However, failing to provide promised updates might not be the solicitor’s fault if you have overlooked telling them about your new address or change of email provider.

Where some house purchase communications are by text message, even changing a mobile phone contract can have unintended consequences. We have seen situations where deadlines have been missed because the consumer didn’t get around to telling their solicitor their new number.

Finally, in terms of consumer ­protection, you should also expect to read what you should do if you are dissatisfied with the standard of work or unhappy with the ­conduct of your solicitor.

Each firm of solicitors is required to have a complaints procedure and the terms of engagement should tell you who to contact if you are ­dissatisfied. If that doesn’t resolve your ­concerns – and in most cases it should – the firm has a duty to tell you that you can escalate your complaint to the SLCC.

A recent independent review of legal regulation suggested that in the future a regulator should develop rules and processes in partnership with consumer bodies. This could lead to new approaches, such as ‘key facts’ or video terms of engagement which make it easier for consumers to understand.

Rather than apparent overly-complex and inconvenient obstacles to getting the work started, terms of engagement should provide us not only with information about our consumer rights, but also a useful gauge to measure the reasonableness of our own expectations. It pays to read them.

David Buchanan-Cook is head of strategic insight at the Scottish Legal Complaints Commission.