Client Communication - Advice and information

A well drafted letter of engagement is a useful risk management tool which can have real benefits for solicitors and their firms. Time spent considering and crafting a well-tailored terms of business letter at the outset of a transaction will help to minimise the risk of complaints at a future stage. Solicitors may therefore wish to consider the following when drafting terms of business letters:

Communication

Terms of business letters can be used to set out how the solicitor will communicate with their client and in what form instructions should be given. Confirmation should also be provided about who has authority to give instructions on behalf of a client, e.g. who is the authorised person if the client is a limited company or a partnership.

Timescales

Terms of business letters can be used to provide an estimate of how long it will take to carry out the work. It may not be possible to put an exact timescale on a piece of work, but it is wise to give an indication of timescales and to err on the side of caution, as timescales may need to be extended to allow for matters which are beyond the solicitor’s control. If a solicitor can flag potential issues to the client in advance, it may prevent dissatisfaction in the future and avoid a complaint about unreasonable delay. Clients should be advised, in advance, if timescales cannot be met and a new timescale should be provided.

Client Responsibilities

The terms of business letter can be used to make it clear what the client’s responsibilities are in the transaction. It should confirm the following information:

(a) the need to give instructions and information timeously when requested,

(b) the manner in which instructions should be given,

(d) the need to remain in contact, particularly if critical dates are to be met, and

(e) the need to keep the solicitor advised of any change of contact details, e.g. address, email address or telephone number.

Plain English

Terms of business letters should be written in plain English and contain no unnecessary jargon or legal terms. This will ensure that the letter is easy for clients to understand and so there is no confusion about the terms used

File Management and Record Keeping

As part of good file management and record keeping, a copy of the terms of business letter which has been sent to the client should be kept on the file.

It is recommended that the content of terms of business letters is kept under regular review. It is also good practice for the Client Relations Manager to ensure that terms of business letters contain the relevant information relating to responsibility for complaints within the firm and the signposting requirements, as the absence of such provisions can lead to complaints of inadequate complaint handling.

Third Party Complaints

In the case of Scottish Legal Complaints Commission v Donald Roderick Murray and Another, the Court confirmed that a statutory notice issued to a solicitor under the Legal Profession and Legal Aid (Scotland) Act 2007 provides the requisite statutory authority to overcome client confidentiality (under the Court confirmed that a statutory notice issued to a solicitor under the Legal Profession and Legal Aid (Scotland) Act 2007 provides the requisite statutory authority to overcome client confidentiality (under Rule B1.6). Therefore, it is the view of the Society that, if a solicitor is served with a notice by either the Scottish Legal Complaints Commission (under section 17) or the Law Society of Scotland (under section 48), a solicitor must comply with that notice and provide the confidential materials requested, even if the client has not consented to the disclosure of that confidential information. This notice does not entitle the Scottish Legal Complaints Commission of the Law Society of Scotland to documents which are covered by legal professional privilege.

Solicitors may wish to advise clients within the terms of business letter that in the event of a third party complaint, that the solicitor may be required by law to disclose confidential information to the Scottish Legal Complaints Commission or the Law Society of Scotland.

For information on responding to a third party complaint please see our Guidance related to Rule B5: Client Relations Manager.

Equality and Diversity

In terms of the Equality Act 2010, people with “protected characteristics” are protected from discrimination, e.g. treating someone unfairly because of their characteristics. Firms are under a duty to make “reasonable adjustments” for those clients with a disability. Firms should ensure that terms of business letters are duly adjusted to take into account clients with disabilities. Solicitors should also be aware of Standard of Conduct Rule B1.15 in relation to diversity and the associated Guidance.

Outsourcing and Agency work

If a firm has decided to outsource or sub-contract some of the legal services being provided to the client, the terms of business letter should state which firm will carry out what work. Whoever carries out the work, the obligation to comply with Rule B4 remains with the instructing firm, not with the agent.

Solicitors who receive instructions from another firm to act on an agency basis may wish to enter into a service level agreement with the instructing firm.

General Data Protection Regulation

Law firms have to comply with the General Data Protection Regulation, just like all other organisations that process personal data. Firms should set out information for clients in their terms of business letters covering security and retention of personal data. Further information is available in our Guide to GDPR.

Alternative Dispute Resolution

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities & Information) Regulations 2015 require solicitors (as service providers) to give consumer clients (individuals not trading as commercial entities) details of a certified ADR provider, and indicate whether or not they intend to use them to try and settle the dispute.

In the terms of business letter, the firm should either:

State that it intends to implement the Regulations and inform clients about any ADR entities and processes which the firm is prepared to use (these should also be referred to on the firm’s website if it has one)

If the firm chooses not to adopt an ADR process, it still requires to account for and share information about the terms of the Regulations with its clients

Here is some sample text which could be used in the terms of business letter and on the firm’s website if it has one:

“We recognise that Alternative Dispute Resolution Regulations have implemented ADR/EDR Directive 2013/11/EU to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however chosen not to adopt an ADR process, and if you have any concerns about the services you receive from this firm you should contact the firm’s Client Relations Manager.”

Consumer Contract (Information, Cancellation & Additional Charges) Regulations 2013 and the Consumer Rights Act

Solicitors should be aware of the Consumer Contract (Information, Cancellation & Additional Charges) Regulations 2013 and the Consumer Rights Act 2015 and take appropriate steps to ensure compliance therewith.