Feature

posted 1 Sep 1997 in Volume 2 Issue 6

Beyond the Sefton Case and Others

Client Care Updated for Solicitors and other Professional Advisers

Richard Peel, Client Relations officer at the Office for the Supervision of Solicitors examines the important "client care" techniques that are vital not to ensure satisfaction amongst an increasingly demanding client base.

He goes on to examine why client care is especially important for those dealing with the elderly and how crucial it is to keep all clients fully informed at every stage.

1. Background

The articles in volume 2 issue 4 of the Elderly Client Adviser highlight the duty of care which can be owed in various circumstances. The initial article by Jean Gould poses the question of whether there is a duty of care for the elderly following the Sefton Judgement and this is followed in the article of Margaret Richards (in particular on pages 8 and 9) showing the sort of questions and knowledge which the professional adviser requires to have in mind. Ian McNeill follows this up in particular on page 11 of his article and then, by way of "light relief', the Master of the Court of Protection refers to the requirements of professional conduct in the up to date cases on pages 16 and 17 of his article.

If this sounds rather daunting then at least, in dealing with a rapidly developing area of law, the professional advisers are likely to be particularly up to date and keen to keep abreast of the latest developments so that the willingness already exists even if the knowledge needs to be acquired and shared among all professional advisers.

2. Developments in Client Care

As underpinning to this specialist duty of care there have been a substantial number of developments in recent years to the general practice of client care which will be analysed in more detail later in this article, but the main strands are probably the following:-

i) Growth of consumer expectations, Self Help and DIY

ii) Input from the Consumer Associations and the Legal Services Ombudsman

iii) Client care guide introduced by the Law Society

iv) Costs information code for solicitors' clients

v) Growth of specialist private client organisations such as the Society of Trusts and Estates Practitioners and the Solicitors for the Elderly Group.

vi) Law Society Probate Section

These and other developments in obtaining "value for money" and producing a satisfied client are particularly relevant in considering growth of the new area of law in advising the elderly client.

3. Consumerism and Clients Rights, Self Help and DIY

There has been dramatic increase in the public's expectation of professional standards following the pioneering work in America by Ralph Nader and this is supported by such organisations as the Consumers Association and the various Government Watchdogs and in particular the various Ombudsmen who oversee professional conduct of various professional bodies. At the same time consumers have been prepared to carry out their own cases by making personal applications and bypassing the traditional professional advisers.

4. Consumer Associations and the Legal Services Ombudsman

Every year the Legal Services Ombudsman has stressed the importance of the rights of clients and of beneficiaries. In advising the elderly client (and members of the family of the deceased elderly client) his attitude is particularly relevant. The Legal Services Ombudsman expects solicitors to examine all aspects of client dissatisfaction whether or not specifically raised. He expects the complaints handling bodies (or the complaints handling partner in a firm) to adopt the attitude of checking whether any of the complaints are applicable rather than turning them away on technical grounds. In certain circumstances he believes that a fixed cost agreement could be to the detriment of the client because it prevents him applying for free redress through the Remuneration Certificate process; what looked as though it offered protection to the client had, he believed, the effect of weakening his position.

The Ombudsman also feels that clients consider that their case is devalued if it does not warrant the attention of a "real lawyer". If things go wrong "it is easy to think that all would have been well if only a qualified member of staff had been acting particularly if they had been led to believe the staff member was a qualified solicitor when he or she was not".

For the professional body (in this case the Office for the Supervision of Solicitors) avoiding undue delay and improving credibility were the two principles which he highlighted. He was anxious that the procedures should be genuinely user friendly so that the Office looked and sounded as though they were really there to help people sort out their problems with solicitors. Clearly this approach applies just as much to all the other professional bodies and the professional advisers themselves.

This general client care philosophy is endorsed by such bodies as the National Consumer Council who recommend that solicitors make it clear to prospective clients where a solicitor's firm has particular specialist knowledge and suggests that this could be met by a system of kitemarks. As NCC puts it "many people would be happy to pay a little more for peace of mind of knowing that their case was being carried out by someone with a proven track record. Good solicitors will recognise the benefit of the kitemarks which indicate both experience and a defined standard of duality".

5. Client Care Guide for Solicitors

This Guide was prepared by the Office for the Supervision of Solicitors and circulated to all practising solicitors (and to the Consumer Bodies) in July 1997. However, as was pointed out by the legal correspondent of the Guardian in an article on 15th July 1997 the Guide would be of "incalculable benefit to ordinary clients to tell them what their solicitors should be doing". As the Guide has also been welcomed by the Consumers Association and the Legal Services Ombudsman it is clear that this will carefully studied by consumers and clients and that solicitors and other professional advisers will be judged on these standards. Detailed study of the Guide by solicitors, and I suggest by other professional advisers, is therefore extremely important.

The Guide starts by analysing what client care really means in the modern environment. Put simply this is that the client's interests are put first and that this treatment is good for professional business. The short slogan is "TLC" which now means "thinking like clients" rather than "tender loving care" although the one does not actually exclude the other! As the Guide recognises, consumers expect the best and refuse to settle for less. When they fail to receive this they complain and vote with their feet by moving to new advisers.

The question then is how to persuade clients that the job is being done well even if, in certain circumstances inevitably, the outcome will not be what the client wished. The successful adviser has to persuade his client that even if he has lost he had a good service.

One of the many other important points to be made is that while many firms have a highly developed client care culture (and their duties to the client are engrained at University and throughout professional training and in their firms) other firms have not yet taken on board this new culture. The Guide accepts that the culture can be difficult to absorb immediately and sets out helpful ways in which this can be taken at a realistic pace and piecemeal. This change in behaviour is required especially in dealing with difficult clients where a special strategy may need to be involved.

Adapting to this culture change can also be a valuable form of damage limitation saving time and money and retaining clients. Clients vote with their feet; the best form of recommendation is from existing clients. By contrast, one dissatisfied client can act as a bad apple and prejudice many existing or potential clients out of all relation to his or her own position with the firm. No one believes that there is any genuine antagonism to client care. The question is how to introduce this in the most effective and assimilable form. This will involve additional training, breaking down major tasks into a series of steps which are each simple in themselves and reviewing client care progress on a regular basis.

While the Guide recognises very clearly indeed the importance of involving all members of the firm at all levels, there is an interesting checklist on the behaviour of fee earners (who are normally the main point of contact upon which a firm is judged) In addition to the obvious requirements of professional knowledge and professional effectiveness such requirements as manner and attitude to clients, judgement, sense

and imagination are emphasised; as are ability to inform and convince, appetite for work and presence or impact, ability to mix and demeanour. These are all to be judged against self development where the fee earner is encouraged to consider how he or she has improved by insight and achievement through their own efforts.

As the Guide points out (and this is the clear experience of the Office for the Supervision of Solicitors) delay and poor communication are the principal enemies of successful client care.

6. Costs Information Code

The Law Society is now proposing that the existing Written Professional Standards on providing costs information at the outset (and updating this) for clients will now be formally recognised as a costs information code to highlight the importance of these provisions. It is also considered to be best practice to give costs information to residuary beneficiaries where the sole Executors or the Trustees are the solicitors who would otherwise be providing the information to themselves. Indeed it is considered prudent for the professional advisers to give the information to the beneficiaries even where there are lay Executors.

Failure to provide costs information is regarded with particular seriousness by the Office for the Supervision of Solicitors (and by the Legal Services Ombudsman) invoking penalties by way of reduction of costs and or compensation. Of course these penalties are over and above the penalties available to the Law Society under their Remuneration Certificate process where they also can reduce costs if the solicitor's bill is too high.

Costs information must be given at the outset in writing to the client detailing how the fees would be calculated. Particular concern is shown where misleading costs information is given. Under the Consumer Protection Act 1987 Part 3 "Cost Ambushes" (where the solicitor gives an intentionally low estimate in order to obtain business and then exceeds the estimate) can be treated not only as poor professional service but also as professional misconduct. In the same way, where costs are found to exceed the initial estimate, the solicitor must advise the client immediately in writing before undertaking work that exceeds the estimate. In addition solicitors must not overcharge for work and where they receive commission of more than £20 then they must pass this to their client unless they have disclosed to him in writing the amount or basis of the calculation of the commission and have the client's agreement to retain this.

As a further exercise in damage limitation forestalling complaints about costs (the most common of all complaints) has to be an essential part of the client care package.

7. The Law Society Probate Section and The Society of Trusts and Estate Practitioners

To accord with client's requirements of specialist knowledge the Law Society introduced in July 1997 a separate Probate section (the first such specialist section). The section is intended to enhance the public profile of solicitors and to encourage and improve standards by ensuring that private client solicitors can meet regularly and discuss their problems (and indeed their achievements!) and swap information and knowledge as well as obtaining full information from the Law Society. In the same way in the last decade the growth and success of the Society of Trusts and Estates Practitioners (which is not limited to solicitors but includes all the other professional organisations involved with private client work) has shown the importance and effectiveness of specialist groups. The Society of Trust and Estate Practitioners has put in place a disciplinary code and entry by professional examination. The Probate Section and STEP are of course in addition to the long established professional organisations who offer the same level of expertise. Now they are joined by the Solicitors for the Elderly Group.

8. Conclusion

The purpose of this article is to show how, in the developing field of elderly client advice, the expectations of clients are high and, with goodwill and determination can be met by professional advisers adopting certain simple steps in client care. If client care becomes a basic part of professional training then all professional firms will match up to those existing firms who already have a highly developed client care culture engrained in them. Clients will benefit and so inevitably will the professional advisers. A culture change may take time to be universally achieved but it is already in place and the prospects for the elderly clients of the future look promising.

Richard Peel, Client Relations Officer, Office for the Supervision of Solicitors