Another collection of “tradecraft” matters of etiquette, including some suggestions on how to allow for the vagaries of client behaviour. The author's advice is personal opinion

Back together again

One of the most embarrassing things you can do in life is if one of your friends splits up with his wife or partner or girlfriend and you make one or two derogatory remarks about the lady in question – and the next thing you know they are back together again. 

If you are representing someone in a matrimonial case, if they are pouring scorn and derision on their spouse you can certainly express sympathy but do not join in the condemnation. Just try to steer the conversation back onto dealing with the practicalities of the situation. No matter if your client makes their spouse out to be the biggest so and so under the sun, that will not exclude the possibility that you will subsequently receive a telephone call saying “Just cancel the divorce. We are back together again and are off to Majorca for a holiday.”  

Emotional cost

No matter what has caused a marriage to break down, you cannot assume in all cases that any strength of feeling between the parties no longer exists at all. It is a three dimensional situation and the solicitor may only be able to see one of the dimensions. 

The solicitor can only work on the practical level, but the client is working both on the practical and on the emotional level. You might obtain a very advantageous financial settlement for a woman whose husband has walked out on her to take up with another woman, but on the emotional level your client still feels that she has lost out 100%.  

Elvis has left the building  

If a client comes to see you and after he leaves you are dying to tell your boss about some weird and wonderful thing the client has told you, make sure that you actually see the client leave the building before you start speaking to anyone about them. Some solicitors escort their clients to the front door at the end of a meeting, but I do not do this. I leave the clients to make their own way out. 

On two occasions in my time I have come out of my room about five minutes after the end of a meeting to discover the client coming out of the toilet. If I had been discussing them with someone in the corridor literally six feet away from the toilet door they might well have heard what I was saying about them; hence the need to see the client actually leave the building before saying anything to anybody. 

The same thing applies with emails. I once forwarded an incoming email to my boss with a critical comment attached and inadvertently sent it to the sender of the email. What I do now is to print off the incoming email then scan the printed sheet into the system and attach it to a new email to the boss with my sarcastic or witty comments. This acts as a complete “cut out” to the incoming email and there is no risk of the comments getting back to the sender. 

Three steps to Heaven

It is very useful if you are selling a property to send an email to the purchasing solicitor about seven days prior to the date of entry in the following terms:

Dear Mr/Ms So and So,

In the words of the song there are “Three Steps to Heaven”. It might be useful if I list what I think has still to be exhibited to you prior to settlement. 

  • a. Continuation legal report;
  • b. R.C.I.L. search;
  • c. Property enquiry certificate.

Is there A.O.C.B.?”

If there is some other piece of documentation which you have completely forgotten about, the other solicitor will respond: “You have still to exhibit the completion certificate for the extension to the house.” At least in such a scenario you have seven days to deal with this rather than being reminded about it only on the settlement day itself.     

The straight and narrow

A solicitor takes their client’s instructions and provided they are not being asked to do anything illegal or improper, the solicitor carries out their client’s instructions. On occasion, however, the function of a solicitor is to shepherd their client back onto the straight and narrow if the client goes flying off at a tangent. Sometimes the client has to be told “We are not going to do that because it is not a solution to the problem.” Nine times out of 10 the client accepts your advice and their weird and wonderful idea is quietly dropped.

Caution over disclosure

A publican client had recently moved to a new pub with owner’s accommodation upstairs. His bank telephoned me to ask for his new private telephone number but I did not disclose it. I phoned the client asking him to phone the bank with the number. The client appreciated the logic of what I was doing, which was leaving the decision to him as to whether or not the number should be disclosed.

Another client had recently moved to a new house and someone telephoned me to ask the address because they wanted to send the client a letter. I did not disclose the address, but I indicated that if they sent the letter to me I would forward it on. This was being helpful in a manner which did not prejudice the client, as once again the choice in the matter was left to the client as to whether his new address should be disclosed.

The other side of that particular coin was that if I had disclosed the address and the very next day the sheriff officers were on the doorstep of the new house serving a writ, the client would ask “Who told you my new address?”, and the sheriff officers would reply “Your solicitor”. Bingo, a complaint from the client about a serious breach of confidentiality. If you are in any doubt about such matters, err on the side of caution.  

Playing the “daft laddie”

The firm with whom I served my apprenticeship had received a visit from a woman who wanted advice about a possible separation from her husband. I was not involved in the matter, but I had seen papers in the office with the woman’s name and address on them. The next thing was that the husband came to see me, and it was on the tip of my tongue to ask “Is this about the divorce?”, but for some reason I did not. The man then handed over a court summons alleging that he had stolen money, so his visit had nothing whatever to do with his matrimonial situation and he might have been totally unaware that his wife had consulted a solicitor. Sometimes if you do not know exactly what is going on you either have to stay silent and wait for enlightenment, or you have to ask some questions which may make you look like you are clueless, but this is preferable to stepping straight into a cowpat. 

The problem with trust

We were selling a house belonging to a businessman who had used it to accommodate one of his employees. The employee had moved out a number of weeks before the entry date and the house was lying empty. The purchasers asked if they could borrow the keys over a weekend to measure for new carpets and curtains, and it was agreed that they would collect the keys from our office on the Friday and put them back through our letterbox when they had finished measuring. When we came into work on Monday morning there were the keys behind the door. No problem, or so we thought.

Settlement day came and went, but the purchasing solicitors did not contact us to arrange settlement. The next day the client telephoned the office for confirmation that settlement had taken place. When he was informed that no settlement had taken place, he said: “The purchasers have moved in. I drove past the house last night and they have taken up occupation.” The penny then dropped that while they had their hands on the keys the purchasers had had duplicate keys cut and on the settlement day they had simply waltzed into the house without paying for it. 

I immediately telephoned the purchasing solicitors asking why settlement had not taken place and they replied: “There is a problem with the mortgage.” It took a fortnight for the problem to be sorted out to allow settlement to take place. 

The lesson here is that under no circumstances whatsoever should a purchaser ever be allowed to touch the keys until the house or flat has been paid for. If they want access to an empty property prior to settlement, either the seller or someone from the selling solicitor’s firm has to open up the house to allow access and lock it up again once the access visit is over: the purchasers cannot be allowed to have possession of the keys.  

The public’s perception – 1

Some members of the public have a notion that one solicitor will not go against another solicitor and that we are in effect in each other’s pockets. This is not correct, but if the point is raised the answer might be as follows:

If you are in business as a plumber you might dislike another plumber to such an extent that you are spitting venom at them, but you never have to speak to them or telephone them or send an email to them or enter their business premises. You can conduct your business without any engagement with the other plumber at all. 

On the other hand I may fall out completely with another solicitor but I still may have to communicate with them in the context of other transactions, either by letter or email or telephone. To put the tin hat on it, Mrs Smith might phone me up and say that she is very interested in a property and could I please obtain further information on it from the selling solicitor. Who is the selling solicitor? Mr Snooks, the solicitor I lost my temper with last week in relation to another transaction.

The public’s perception – 2

If a new client comes to see you with a case which another solicitor has started off and made a mess of to the extent that the client is seriously thinking of making a formal complaint against that solicitor, there may well be a much greater possibility that the client will end up being dissatisfied with your handling of the case and contemplating making a complaint against you.

Certain firms are prepared to act as “troubleshooters” and take on a case where there is a distinct possibility of a claim or a complaint against the original solicitor acting. It may be heartbreaking to have to turn away business, but clients who feel aggrieved at the way a solicitor has handled something should be referred to a troubleshooting firm, otherwise you are simply tempting Providence.

The Author

Ashley Swanson is a solicitor in private practice in Aberdeen. Other readers are welcome to contribute their own experiences and tips.

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