Prevention is better than cure

THERE IS an old saying in the legal business – this would be a great job if it weren’t for the clients. Lawyers are good on irony, and the self-deprecation of that joke is half or all you really need to know about client relations. In a nutshell, it reflects what those of us who are client-facing know, which is that clients are humans, and whatever we do for them, we have to deal with their expectations, their personalities, their disappointments. Oh, and their interests, by the way. Law is an art more than a science.

I say half. The other half is about our attitude as solicitors to the clients and their baggage. That is a huge subject. The difficult client is so adjectivised for one of two reasons, broadly. Either he (or she, but let’s just use the degenderised he) is unhappy at our mistake, or else he is frustrated that the result of our work is not what he wanted. Those two are very different animals.

Let’s take mistakes first. We as lawyers are human, we can cock it up (show me a solicitor who claims perfection and I will literally that day send in Bruce Ritchie and someone from Marsh, accompanied by a crash psychiatric team). If that happens, then it is essential that we deal with the matter properly. I use that word advisedly, and in both its senses – proper in an ethical, professional meaning, and also proper in a logistical way.

Now, there is naturally an instinct of self-preservation: if the client finds out my mistake it will be a claim, a complaint, a financial penalty, an increased premium, the loss of the client, the loss of this fee and maybe more. All true, but not enough.

The bigger picture is that (a) you still owe the client a duty of care even if it costs you financially and personally; and anyway, from a practical point of view, the chances of getting away with it should be set against the cost of being found out – by the client, and worse, by the society and the insurers.

A mistake is just that – an error, a slip. But a cover-up is not only misguided, it is misconduct, a stain on your professional reputation and standing, perhaps even causing the end of your career.

Fundamentally, in a sentence you would say that inadequate professional service is a venial sin; deception/misconduct is a mortal one.

What I am getting to is this: if there is a mistake, a problem, a loss caused or contributed to by your involvement, then face up to it. Don’t ignore it for a start – wishful thinking is the high road to hell (and in my six years of dealing with client complaints for the Law Society of Scotland, a huge proportion involve delay in dealing with the problems and delay in responding to society letters), without even the handcart, but engage the client. If there is any chance of softening the blow, it is more likely to come about by openness and bringing the client into the equation (one caveat is that when the whiff of loss is in the air, get hold of the insurers before doing anything else. Apart from the fact that you have a duty under the master policy to alert the insurers to the active possibility of a claim in a circumstance, it is the best and most positive thing to do. Again, this is both duty and practicality.

Now let me bring back in the other eventuality – the client who wants X, but in spite of you acting properly diligently, even brilliantly, can only get Y. In either case, you have to deal with the difficult client.

The process of dealing with the client, the choice of writing a letter/e-mail, or phoning, or calling a meeting, is a personal one, and depends on many considerations.

Now let me mention one thing that it is right to put in here, but is actually something that goes before any of this – and that is prevention. It can spike many a claim, complaint (large C and small c) and balance out the solicitor-client relationship if the client has been pre-advised of what can go wrong, and what you can and cannot do for them.

We are all familiar with our obligation to issue terms of engagement and a fee estimate or charging letter to a client, new or ongoing, for work to be done. But that minimum is so very often not enough. Every case and transaction is different, every client is different, every solicitor is different, so a Word template spewed out by the case management system is unlikely to catch every eventuality in every matter of business transacted.

So what should you do? Two things: a letter of scope of engagement, and some helpful information. The scope of engagement letter is the meat on the bones of the terms of engagement document. The scope is a description of your duties and the extent of work and responsibility for a particular transaction.

Example: I am doing a land-plot buy for a group of clients who intend to build four houses. The water and sewerage arrangements involve a mechanical pumping installation to join to the public pipes up the road.

An architect, SEPA and a water engineer have been involved before I got instructed. In my initial letter to my clients, I made a full list of the things I will do – checking title, ensuring servitudes for the water etc, but that the practical and technical aspects of the water system are outwith my area of responsibility.

Another example – this time of giving the client information: in every commercial lease transaction we issue a set of notes, which cover subjects such as rent review, the nature of a full insuring and repairing lease, post-settlement fee charges for matters arising during the lease period, insurance considerations, and – crucially – dilapidations. We always suggest a survey, and set out in clear terms what it means to become a commercial tenant. It is astounding how many problems arise when the landlord makes demands and the client turns to the solicitor to ask why he (the tenant) is now liable for this repair cost or that fee to the landlord’s surveyor.

A solicitor should be able to predict the problems and issues that may arise, and that should almost automatically cause him to tell the client in advance, and hence divert the blaming and claiming.

l Austin Lafferty is vice-president of the Law Society of Scotland