Service standards and risk management

Understand the importance of ensuring compliance with the Law Society’s Service Standard, in the first of two articles with Lockton.

Fee targets. Profitability. Recruitment crisis. Retention crisis. Work-life balance. Standards of Service. Words that will resonate with anyone in private practice, particularly at the moment. 

Are these words mutually exclusive? Can a solicitor manage them all? Do they need to?

The Law Society of Scotland encapsulates the solicitor’s responsibilities in its Standards of Service guidance and also provides some good risk management tips. This article examines the first two standards, competence and diligence, the guidance within them, and how they can be applied in practice.

Competence

The standard states:

• Know and apply the relevant law
• Keep up to date
• Ensure that those to whom work is delegated are properly trained and supervised

[…] Given the range of specialised areas of legal work it is essential that a solicitor recognises the need to keep his/her knowledge up to date and to make an ongoing commitment to continuing professional development.

Where a solicitor delegates work, whether to another solicitor or solicitors or to paralegals or other members of staff, it is essential that such staff are properly trained and that there are in place systems to ensure that the delegated work is adequately supervised.

This seems clear. You must be able to do the work and, if you delegate, those to whom you delegate must be able to do the work and must be properly supervised. Most solicitors know their limits but there can still be a temptation to dabble, especially if work is thin on the ground or there are targets to meet. 

However, dabbling can lead to claims and complaints, so the temptation to take on work outwith your area of expertise should be considered against the inherent risks involved. Always ask: what if this doesn’t go to plan? For a more detailed look at the risks of dabbling, see the Journal article, ‘Lockton’s dabbling lowdown’.

Diligence

The standard states:

• Deliver on commitments
• Act in the best interests of each client
• Maintain and review systems of work
• Prompt and transparent fee arrangements

It is expected that a solicitor will fulfil commitments made to the client, other solicitors and the court. By way of example, this would include responding to letters, e-mails and telephone calls within an appropriate or agreed timescale. […]

An agreed timescale seems easy enough (assuming agreement can be reached), but what about an appropriate timescale? What is appropriate in any given circumstance?

Increasingly, particularly given the use of email, solicitors are under pressure to respond almost immediately, often to complex matters. Long gone are the days when the only thing you had to fear after the morning mail had arrived was the possibility of an afternoon fax! That pressure for an immediate response can come from both clients and other solicitors.

Claims and complaints can arise where radio silence is viewed as the solicitor not bothering to respond or not attributing the same urgency to the matter as the sender. Very few solicitors start their day with the intention of ignoring everything in their inbox. The opposite is usually true – nothing would please a solicitor more than to get through all the emails in their inbox. However, problems can arise if the solicitor does not make it clear that the matter will be attended to, with an indication of when it will be attended to. So, if you are the recipient, and without wishing to further increase unnecessary email traffic, a short acknowledgement that the email has been received, and will be attended to, may go some way to manage expectations.

If you are the sender, have a think about what the recipient might be facing. As the sender, you will likely have been working on the email for some time. For the recipient, the email may come out of the blue. Is it really appropriate to expect the recipient to set aside whatever else they might be doing, to respond within the arbitrary timescale set by you?

The standard continues:

A solicitor must only agree to work for a client where the work can be done within a reasonable timescale. Where a solicitor considers, for example, that the service to a client would be inadequate because they already have so much work to do that it would not be dealt with within a reasonable period of time, they should not agree to take on the work.

Sometimes this can be an obvious and easy decision to take. If you already have a number of real deadlines, and a new piece of work cannot wait until after those deadlines have been met, it is not a good idea to take on more work if it genuinely cannot be serviced. The ‘what if’ question rears its head again.

Is it realistic to expect solicitors to turn away work? If the work really cannot be serviced, then the answer is yes. If it is a question of not now but later, then, provided the client is aware, and agrees, that should be acceptable. Setting out indicative timescales in the letter of engagement and in correspondence will help. This way, the client is in no doubt when the work will be done.

The solicitor will at all times seek to do his or her best for the client. This will include identifying the client’s objectives in relation to the work to be done, giving the client a clear explanation of the issues involved and the options available to the client, and agreeing with the client the next steps to be taken. In keeping the client informed, the solicitor must provide updates on progress.

Take the time at the outset of the instruction to find out what the client wants. Next, work out what the client needs and set that out, in as much detail as you can, in the letter of engagement. Go back to the letter of engagement after a month or so, and then on a regular basis, to make sure the terms really do reflect what you are doing. If they don’t, then update them.

Agree a reporting timetable with the client and stick to it. Diarise the dates and report, even if there is nothing to say. 

With the increasing advancement of technology, it is expected that the solicitor will regularly look at ways in which technology can support client service. By way of example, this may include client reporting systems, file and data management systems and use of knowledge management systems.

Many firms are becoming increasingly familiar with the raft of knowledge management and data storage systems available, but for those practices with less resources available it can be something of a minefield. Mindful of this, the Law Society of Scotland has dedicated resources on its website to help law firms choose legal technology products wisely (see the ‘Guide to IT procurement’ and the ‘Cloud computing guide’).

At the conclusion of the work, or earlier if agreed, the solicitor will ensure that the fees to be charged are promptly notified to the client and that a clear explanation and breakdown is provided. If there is any variation from the fees previously discussed, the solicitor must explain the reasons for the variation. The solicitor must respond promptly to any clarification sought from the client.

Claims and complaints often only arise after the client receives the bill. If the letter of engagement is clear, and the client has been kept regularly updated, there should be less scope for the client to complain. That does not mean that the client will not complain, but an effective letter of engagement that has been reviewed throughout the process will help to defend a complaint or claim.

Watch this space for part two, which will examine the remaining Standards of Service: communication and respect.

Written by Anne Kentish, a partner at Kennedys, on behalf of Master Policy broker, Lockton