Karim Mohamed, Partner in Professional Negligence at Lime Solicitors in Sheffield, has 30 years’ experience helping clients with negligence claims against all kinds of professionals. Here Karim shares with Complex readers his top ten tips for solicitors to protect against professional negligence claims.
As solicitors, we all know how crucial establishing a good reputation is for our own professional development and for building trust with our clients. A professional negligence claim runs the risk of ruining a reputation that took many years to build, but the good news is that this type of claim can be easily avoided. We know that very few mistakes arise from lack of legal knowledge, indeed the great majority are due to underlying administrative errors which can be drastically reduced if a few precautionary steps are followed…
1. Who is your client?
Even though this may seem straightforward, you should always get the details right for who exactly you are representing. When a case involves multiple beneficiaries or trustees, this can be far from simple, so you should always know precisely whose interest you are first and foremost defending.
For instance, in a recent case, lawyers set up a charitable trust without explaining that this might defeat any expectations of personal benefit. It turned out the law firm was advising on both the interests of a proposed architectural project and the personal positions of the two co-founders of the project. This created a conflict of interest serious enough to support a negligence claim. Damages of close to £2million were awarded.
2. Clarify exactly what you will do
As a solicitor, it can be easy for the exact particulars of what you’re prepared to do for a client to get lost in translation. However, to avoid any misunderstandings, you should always clarify with your client exactly what you are going to do for them, what you are not going to do, and what the client will do themselves.
For example, in a case involving a fashion boutique, the shop’s accountant received a letter from the landlord giving notice of termination, but not denying a further lease. While the accountant told his client that he would deal with the lease, he actually meant that he would acknowledge receipt of the notice and then leave it to the client to instruct his solicitors. However, due to a lack of clarity in communication, the client did not do so, the time limit then expired, and the lease was lost. The retailer then claimed more than £300,000, and while the case settled, the reputational damage remained.
3. Understand your client
After you know who your client is and what you are expected to do, you should focus on understanding your client’s point of view and how they like to communicate to look to build a strong working relationship. You should establish how often you will get in touch and talk openly with your client and address issues before they have time to fester.
4. Put it in writing
Make sure that you take detailed notes of all your calls and meetings with your client, as well as of any verbal advice you might give. Nothing will be more useful in protecting yourself than clear, written evidence.
5. Watch your emails
While it may seem like a daunting task to always be on top of all your emails given their sheer volume, this is vital if you want to avoid a professional negligence claim. You never want to risk missing an important email and you should always proof-read what you send. The consequences of sending confidential information to the wrong recipient can be devastating.
6. Agree everything with the client
You also want to make sure that you are sending regular updates to your clients and that you have an agreed timetable for the work that you are delivering. Your client should know what you are doing and make sure to use ‘plain English’ to avoid misunderstandings.
7. Filing
No one is excited about filing, but this is a must if you want to avoid things slipping through the cracks. An up-to-date audit trail can be your saviour in the eventuality of a claim.
One of my former clients thought that she was buying a nursing home outright, but in reality the seller wanted to retain an interest. However, before the deal was finalised, her lawyer went on holiday and the paperwork was not properly filed. Thus, the stand-in lawyer believed that the seller’s interest had already been confirmed with the buyer and proceeded with the purchase. As it stands, my client did not know anything about this until after the completion and the judge decided in her favour, with the solicitor having to pay hundreds of thousands for the claim, as well as the legal fees.
8. Illness/absence
We all need to take time off for various reasons, but when you do, make sure that you hand over all relevant work to a colleague who will be able to progress your work in your absence. Even in cases of unplanned leave, if all your files are up to date, a colleague should be able to effectively pick up your work with no disruptions to the client. In the example outlined above, the claim could have been easily avoided if, in addition to better filing, the solicitor in question left a detailed handover for their colleague to pick up in their absence.
9. Saying no to a client
Before accepting any work, you should always vet any potential clients to avoid unpleasant surprises. You should also feel confident that you have the right expertise to offer the best advice to any potential client, and that you have the capacity to take them on.
10. Have the right people on the job
Related to the previous tip, you should ensure that the people assigned to a client have the necessary experience and qualifications to deliver the right advice. Always ensure that junior members of staff have the right supervision.
Many of my cases share patterns and, with the 20:20 vision offered by hindsight, all could have been avoided. I hope the general rules that I have outlined above will act as a warning sign and help conveyancers avoid expensive litigation.