Keeping on the straight and narrow by Sponsor Aon

They may not be universally welcomed by fee earners, but the COLP in a well-managed practice knows that effective matter acceptance procedures are essential. They ensure that clients are properly vetted and that only work within the firm’s expertise is taken on. A sound approach protects the firm from the hassle faced by firms whose procedures are less rigorous and goes a long way towards preventing the claims that can arise from sloppy procedures. Even the best take-on procedures, however, won’t always keep you on the straight and narrow. This is due to the risks that arise during the retainer.

 

The risks are many and varied although some, such as missing a critical time limit, are now better managed than in the past. Accordingly, this article will focus on ongoing risks in two key areas, the retainer and communication.

 

Clarity around your retainer is essential. All too often, the client care letter has become a lengthy compliance document, produced by the firm with more than half an eye on its compliance obligations and little thought about meeting the client’s needs. 

 

Next time you audit one of your firm’s files, before you do anything else, try to put yourself in the client’s shoes. Then read the client care letter and draw your own conclusions. As research published last year revealed, the client care letter tends to have very limited value to most clients. Particularly if they give up part way down page two because it is seen as largely irrelevant. In some firms, fee earners only become involved once the client care letter has been sent out by the admin team.

 

If your client care letter barely touches on the detail of the retainer, perhaps covering it superficially in just one or two sentences, then fee earners must ensure that the retainer is clarified. The work covered by it should be clearly set out. One of the matters arising from the spate of property fraud cases in 2016 was the lack of clarity in the retainer about all of the steps taken on their clients’ behalf. Greater transparency of the work to be done could help clients to understand why legal fees are often expensive.

 

Apart from the clarity it brings to the relationship, this has two key benefits. Firstly, the work to be done on the client’s behalf will be clear and, one hopes, unambiguous. This will help to ensure that you explain to clients the main characteristics of your service as required by consumer contract regulations as well as the Code of Conduct. Secondly, a well-defined retainer makes it much easier for the firm to agree an additional fee if matters arise that clearly fall outside the retainer. If the retainer is vague, this is much harder.

 

While it is important to exclude matters outside your expertise, some care is required in relation to tax. The blanket exclusion of all tax matters from the retainer without your client’s informed consent might be ineffective if tax is integral to the matter which you are handling.

 

Having defined the retainer clearly, fee earners should keep a watchful eye out for retainer creep, where the nature or scope of a matter evolves perhaps gradually over time or at a rate of knots during an eventful day. For the client, it may mean that the person handling the work is now over- or under-qualified to do so. Any checks and balances agreed at the outset may no longer be appropriate. The fee earner may be out of their depth. Whilst some responsibility lies on the supervisor, fee earners should know their limitations. The development of new skills should only be undertaken as part of a managed training programme with appropriate supervision.

 

Obviously, as soon as retainer creep is identified, the retainer should be reviewed with the client. If the nature of the work, the fee, matter handler or supervisor has changed, an updated client care letter may be warranted, which brings us on to this article’s second theme, communication.

 

The legal advice you provide should be, and usually is, up to date but the way it is communicated can make all the difference. This is particularly essential for clients but your approach to communication generally is equally important both inside and outside the office.

 

Your communications with clients should be clear and precise, making them more efficient and cost effective. Remember that communications on headed paper tend to be more carefully crafted than emails so make sure that your language is appropriate to the client’s knowledge and experience. Try to avoid ‘stream of consciousness’ communications that ramble on.

 

While your communications may be written in the present, this should be with an eye on the future. That can mean tomorrow, next week or three years from now. An email may make sense when you are in the middle of a transaction but will it still make sense in the future when memories have faded?

 

If a matter gives rise to a professional negligence claim, all aspects of your file will be put under the microscope. In the worst-case scenario, your letters, emails, file notes, and other documents may be read out in court (not forgetting content posted on social media in the wee small hours).

 

Ensure that the language you use is measured and appropriate. Today’s near instantaneous communication options neatly circumvent the enforced period for reflection, in years gone by, during the time between dictation and the clattering product of the manual typewriter, which allowed time to calm down, so beware. The SRA was obvious sufficiently concerned to have issued a warning notice in August 2017.

 

How you communicate with experts can have a key impact on the outcome for your clients. Lexcel accredited firms must adhere to the eight requirements in paragraph 7.5 of the Standard. One of the requirements is the giving of clear instructions which should specify the timescales to which you are working. Instructing an expert late in the day can have serious consequences for your client, if it means you miss procedural time limits. Remember than your experts will face their own time pressures.

 

Good internal communication is equally important, particularly as it is increasingly common for matters to be handled by more than one lawyer. Clients wanting more for less is a common theme.  As the routine aspects of a matter can often be handled by someone less well qualified (or not qualified at all) it makes sense to allocate tasks to the person best able to deal with it. Whilst doing so can make your practice more effective and profitable, poor communication can wipe out any benefit. Key messages must be properly recorded and shared. Does your case management system allow you to record all activity in a way that is visible to all those involved on a matter?

 

If your legal knowledge and management of key dates is well controlled, then ensuring tightly managed retainers and effective communication can help keep you on the straight and narrow.

 

For more information on this article, please contact:

Grahame Davidson, Director, Aon UK Limited

On 0117 9485117

 

Whilst care has been taken in the production of this article and the information contained within it has been obtained from sources that Aon UK Limited believes to be reliable, Aon UK Limited does not warrant, represent or guarantee the accuracy, adequacy, completeness or fitness for any purpose of the article or any part of it and can accept no liability for any loss incurred in any way whatsoever by any person who may rely on it.  In any case any recipient shall be entirely responsible for the use to which it puts this article.
 
This article has been compiled using information available to us up to 01 December 2017.

 

Sources

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