Tradecraft tips

Ingratitude

A client was buying a house which, when originally built, had a recessed porch. The seller had glazed this in; the problem was that the bathroom window opened out on to the porch and my understanding of building regulations is that a bathroom window always has to open out into fresh air and not into an enclosed space. When the client was informed about this, she did not thank us for raising a matter which might cause problems in the future – she replied: “Oh, don’t tell me that I am not getting my house.”

If you start casting up technical problems, clients sometimes gain the impression that you are getting between them and their “dream home”. On the other hand if you do not spot the problem or do not mention it to the client and it raises its ugly head at some point thereafter, the client’s reaction may well be: “If I had known about that at the time I would never have gone ahead with the purchase. This is all your fault.”

At all times we have to do our best for our clients, but as we have to answer for everything we do, even 30 years down the line, anything which has the potential to kick back on us has to be pointed out to the client no matter how much anxiety or annoyance it may cause them.

Trust

Kerr Avon, one of the characters in the 1970s TV series Blake’s Seven, made a memorable remark in one episode: “Trust only becomes dangerous when you have to rely on it.” Here in Aberdeen in the recent past a woman has been engaging firms of solicitors to conclude missives for the purchase of properties and then failing to come up with the funds to settle, leading to the transactions going into meltdown with catastrophic consequences for the sellers.

I wonder whether this person was asked right at the outset to produce documentary evidence in the form of bank statements or the like to establish that she actually had the funds in hand to obtemper her commitments under the missives. If you are dealing with a client who is new to the firm, you should not be content with their assurances that they have the funds available: you should ask for definite proof. You are risking reputational damage both on a personal and on a firm level if some ill-disposed person decides to cause mischief by offering for properties that they are incapable of buying.

Boredom

This is a story very much against myself. A client was, via a limited company, the tenant of a unit in a shopping mall. The company had racked up £84,000 of unpaid rent, but a deal was done with the landlord whereby the client would start up a new company, take an assignation of the lease and the rent arrears would be written off. What to
me was an extraordinary arrangement was mentioned in an email at the back of the file.

Dealing with commercial leases can be very boring indeed and I made the fatal error of allowing my attention to stray. I did not understand the special arrangements which had been made and I did not delete the provision in the assignation deed whereby the new tenant took over all of the liabilities of the original tenant. This resulted in the rent arrears being a liability of the new tenant.

Matters were eventually sorted out and the new tenant was excused from payment, but I had lost face with the client and suffered the acute embarrassment of making a major blunder.

Whether you find the case you are working on interesting or not, you have to give it 100% of your attention, and if your clients have entered into an unconventional agreement with someone, you have to quiz them closely to make sure you understand exactly what has been agreed and what you need to do to accommodate it in the documentation. 

Magic spells

The Credit Crunch may have shifted the balance between commercial landlords and their tenants, but for a long number of years here in the North East the balance was very much in favour of the landlords. If you were acting for a tenant and the landlord’s solicitors presented you with the draft lease, they appeared to regard it as a magic spell and were petrified that if even the slightest revisal was made to the wording, the magic spell simply would not work. You were then expected to accept that the brickwork on the building simply had to be repointed every 10 years or some other such nonsense.

A separation agreement between a couple for some reason needed to be done again, and on looking over the existing agreement I noticed a number of typing errors. My attempt to correct these was met with a very indignant response from the other solicitor, so I simply prepared the new engrossment with all the errors faithfully reproduced.

Revising legal deeds does not require you to switch off your common sense. The skill comes in knowing what will or will not make a difference in practice and how much flexibility can be allowed without creating problems for the future. One of the rules about negotiation is always to leave something in the deal for the person on the other side, rather than trying to get your own way in all aspects of the situation.

Noblesse oblige

Many years ago my parents were members of a bowling club. At an annual meeting of the members it was disclosed that the title deeds of the club had been lost. Thinking that I was being helpful, in the days before the Sasine Register was searchable online, I set out to track down the missing disposition. All I had by way of clues was the address of the club and the fact that it was started in 1925. I eventually traced the deed and a copy was given to one of the committee members.

I received no thanks for this as the committee was then forced to admit that what had happened was that the title had been taken in name of a limited company which had been allowed to go out of existence, presumably because annual returns had not been filed. The title deeds had not been lost; they had been forfeited. The level of embarrassment was heightened by the fact that one of the committee members was a solicitor. I never found out how the matter was eventually resolved.

If you see an opportunity to use your legal skills to help people resolve some difficulty, at no cost to them, it might be worthwhile first of all to offer your services to see what their reaction is, rather than presenting them with a fait accompli, otherwise your good intentions may badly miscarry.

A matter of opinion

Many years ago I was accused of ignoring an arrestment which had been served on my firm by the creditor of the owner of a building which a client was buying. I did not consider that the arrestment was actually effective, but I needed some expert input to help me to fight the case. I obtained an opinion and the academic in question felt that the best that might be done in the circumstances was to negotiate with the other side and perhaps pay them half of what they were claiming.

I ignored this advice and simply extracted those parts of the opinion which supported my position and fired them off at the other side. They eventually abandoned their claim altogether. Recourse had to be made to what I call the “black arts” of the legal profession without saying anything to the other side which was in any way incorrect.

If you have to resort to getting an opinion, do not disclose this to the other side. If the opinion is wholly in your favour then by all means send them a copy. On the other hand, if the opinion is against you then as far as the other side is concerned you never obtained an opinion in the first place and you can keep on arguing the matter as before. If the opinion is not wholly supportive of your stance you can treat it as a buffet meal and pick out the portions that are in your favour, include them in your argument and leave the rest sitting on the table.

A prayer to St Jude

St Jude is the patron saint of hopeless causes. A client was having to sell his house to clear off business borrowings. The bank also had a life policy assigned to it which it wanted to cash in to obtain the surrender value of £12,000. My boss at the time persuaded the bank simply to keep paying the premiums, on the pretext that the client’s family were raising funds to buy over the policy. Some time thereafter the bank again raised the question of surrendering the policy, but once again it was persuaded to keep it going.

The boss knew that the client was terminally ill, and when the client died the policy paid out at the full value of £28,000. The bank duly got its £12,000 and the client’s widow received the balance of £16,000. If the boss had not crippled the life policy along and the bank had surrendered it while the client was still alive, his widow would have got nothing. The client’s accountant thought that his financial position was hopeless but the boss thought otherwise and managed to pull £16,000 back from the edge of the cliff.

The late Nicholas Fairbairn once said that no case was so good that it could not be lost, or so bad that it could not be won. Advocacy is a skill worth learning and developing.