Professional briefing - The Journal Online

Professional practice Risk management
Communication failures are a significant factor in the experience of claims against
solicitors, and more effective communication could reduce significantly the
incidence of claims in all areas of practice, says Alistair Sim of Marsh
Communication,
communication,
communication
Many complaints, disputes, claims
and other problems
boil down to
misunderstandings,
so it is little
surprise to learn
that poor or
ineffective
communication lies
at the root of many
claims made against
solicitors. Reports indicate
that the most frequent cause
of service complaints is
communication breakdown.
Perhaps as many as a third
of all Master Policy
intimations may be attributed
to a breakdown in
communication or a
misunderstanding of some sort.
Many claims involve a factual
disagreement between solicitor and
client. Many involve allegations of
failure to inform, advise or warn.
A challenge
Are you confident that
misunderstandings could not
arise between you and your
clients? Are you sure that
neither you nor your clients are
proceeding on the basis of an
incorrect assumption about a key
aspect of the transaction? How can
you be confident?
The following series of case studies
illustrates the potential for
misunderstandings and incorrect
assumptions. They also demonstrate
the scope for addressing these
communication risks by ensuring key
points are effectively communicated
and recorded.
40 / theJournal December 09
Case study 1
Practice A acted for Mr Brown in a
reparation claim arising out of an
accident at work. Liability was in
dispute, but there were different
versions of how the accident had
occurred from the three witnesses.
Mr Brown was reluctant to give
evidence, and settlement was
negotiated at the doors of the
court with his authority at a sum
well below the amount sued for.
Mr Brown subsequently made
a claim against his solicitors
alleging that the settlement had
been made against his will. The
responsible partner maintained
that Mr Brown had agreed
the basis of the
settlement and given
authority to proceed.
If only the file had included
an attendance note giving
details of the discussions at
court and confirming that
the client had given his
authority to settle. If only a
confirmatory letter had been
sent to Mr Brown.
Case study 2
Practice B acted for Mr and
Mrs Green in a house
purchase. Two years later,
the Greens contacted the
firm complaining that new
neighbours were claiming
ownership of a plot of ground
across the road which the
Greens had considered
belonged to them.
The purchase file was
retrieved from storage, but it
made no mention of the additional
area of ground the Greens believed to
have been included in what they had
purchased.
If only the file had included a letter
sending out a plan and asking the
Greens to confirm that the area
indicated on the plan was the same as
they understood they were buying.
Case study 3
Practice C acted for Mrs Elder and
her daughter and son in law, the
Youngers, in the purchase by the
Youngers of a house in which they
could all live. Mrs Elder provided the
bulk of the purchase price, the
balance being funded by the Youngers
by way of a mortgage. Following a
family fallout, Mrs Elder claimed that
she had not been properly advised
and should have had a contract
enabling her to force a sale of the
property and recover her money.
The firm intimated the claim to
insurers and explained that they had
been acting only in the purchase and
that, prior to instructing the firm, Mrs
Elder and the Youngers had already
agreed the basis on which they were
purchasing, funding and occupying
the property. The insurers’ view?
If only the firm had written to Mrs
Elder advising her of the risks involved
in proceeding as planned and strongly
suggesting that she would be well
advised to seek separate representation
and advice.
Case study 4
Practice D acted for Mrs Wright in
connection with the preparation of an
agreement dealing with the sharing of
the parties’ matrimonial property on
separation. Mrs Wright subsequently
alleged that her solicitors had failed to
advise her in relation to her spouse’s
pensions and, in particular, that if she
settled on the basis set out in the
agreement she would be giving up her
rights to make a claim on his pension
rights. The solicitor was adamant that
advice was given during a telephone
call and at a meeting.
If only the file had contained file
notes of the telephone call and
meeting, and a follow-up letter to
record the advice given.
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