Service standards and risk management (part 2)

Better understand the importance of ensuring compliance with the Law Society’s Service Standard, in the final instalment of these articles.

In part two of a two-part risk management series covering the importance of ensuring compliance with the Law Society of Scotland’s Standards of Service, we look at communication and respect.

In today’s pressurised work environment, it is worth revisiting the Law Society of Scotland’s Standards of Service guidance for a discussion on how firms can avoid complaints and claims by adhering to their core values and risk management principles.

Part one of this series looked at the first two service standards, competence and diligence. This article will focus on the second two standards, communication and respect.

Communication

The standard states:

• Use of clear language and explanation from the perspective of the client
• Agreement on the means and frequency of communication between client and solicitor
• Letters of engagement or their equivalent clearly explaining and defining the service to be carried out, how that work will be carried out, who is responsible and the cost associated with the service
• How complaints will be handled in the event of dissatisfaction

[…] The overriding aim is to ensure that the client can gain a proper understanding of what is being communicated. This necessarily requires the communication to be tailored to suit the audience, their needs and interests. Communication requires the solicitor to listen to the client and understand their objectives.

Many claims and complaints can trace their roots to a failure in, or breakdown of, communication. For a detailed explanation of communication risks, see the Journal article, ‘Client communication – a continuous journey’. A number of complaints to the Scottish Legal Complaints Commission (SLCC) are upheld because of failure to communicate. Even when a claim appears to have a well-defined primary causative factor, it is often the case that the underlying risk issue is rooted in communication failure. Take the time to communicate properly. It will be worth it.

A letter of engagement is one of the first detailed communications between solicitor and client, and it is both a requirement and an opportunity to set the tone for the working relationship. Despite the fact letters of engagement have been mandatory since 2005, the Master Policy insurers still see solicitors’ files where there is no letter of engagement. Defence of a claim does not get off to a great start when the contract between solicitor and client cannot be defined. 

The Standards of Service set out what should be set out in a letter of engagement. The standards also emphasise the importance of updating a letter of engagement when there is a significant development that would change the scope, and indeed the cost, of the instruction.

For any firms seeking to update or expand their letter of engagement, Lockton has produced a Letters of Engagement Guide, which includes comprehensive advice on what to include, with sample wording and signposting to show where content is mandatory, recommended or optional in terms of Law Society regulations. The guide is freely available to the Scottish legal profession.

Respect

The standard states:

• Treat each person as an individual
• Recognise diversity, different cultures and values

The relationship between solicitor and client is a mutual one built upon trust and respect.

This last service standard is of course wide-ranging and will require different considerations depending on the client and the circumstances of the case. No two clients will be exactly the same.

The guidance expands on this service standard to say that implicit within a good level of professional service is that every client will be treated respectfully and with courtesy. It also reminds us that we have a duty to treat colleagues and other members of the legal profession and the public with similar politeness and respect. This last point has rightly been the subject of much more scrutiny and tangible progress in recent years with many firms committing to good practices, for example by introducing policies aimed at improving workplace culture or engaging with external agencies like the Mindful Business Charter.

Implementing and adhering to core principles

Life can be pretty tough for solicitors, with pressure coming from a number of sources: clients, other solicitors, courts and regulators, to name but a few. The last thing a solicitor wants or needs, in addition to their busy and stressful day, is to have to deal with a claim or a complaint resulting from a failure to adhere to what are, in reality, sensible and obvious Standards of Service.

Implementing and, importantly, sticking to core risk management principles might not prevent claims or complaints being made, but should go a long way to help defend them.

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