In her latest blog, Bianca Slabacu of CBP Lawyers explains some simple and practical steps the SME owners can utilise to help them avoid potential litigation.
A large number of claims brought against legal practitioners and other professionals arise from a failure to take daily steps of proper file maintenance.
Some of the most common oversights giving rise to claims include:
- Not appreciating the indispensible nature of file notes;
- Failing to identify the source of your instructions properly; and
- Accepting a longstanding client's assurance that "everything is under control" without taking independent steps to ensure that your legal obligations are fulfilled.
File notes and written client advice
Most professionals will agree that documenting instructions received from a client is an ordinary prudent task undertaken in the proper management of a business. However, it is often overlooked, particularly in busy practices.
This means that when professionals are faced with a claim, it is difficult to reconstruct the past and piece together the events leading up to the claim because of a lack of written material.
Maintaining contemporaneous file notes ensures that you have an accurate record of your client's instructions, enabling your colleagues to implement the instructions or advise on them. These notes also act as an effective risk management tool if a dispute arises later.
Similarly, if you follow up on verbal advice with written advice, this can help to disprove any subsequent suggestion that you have failed to advise your client adequately on the matters in question.
It also ensures your client knows what course you intend to adopt in implementing their instruction. The client may alter their instruction if they disagree with the proposed course or are wary of the risks and costs associated with it.
Who is giving you instructions?
It is important to ensure that the person who is giving you the instruction has the proper authority to do so. This is not always clear in cases where, for example, you are taking instructions from a company client via its director, or where you are acting for a husband and wife.
Does the director have the authority to provide you with instructions? Have the husband and wife given you authority to take instructions from one or the other?
You must satisfy yourself that the person giving you instructions has the requisite authority and also ensure that your client has the same understanding regarding this authority.
"It's all under control..."
It is not rare to come across a legal practitioner who has longstanding, loyal clients for whom he or she has acted for many years. This does not mean that the relationship of trust between the solicitor and client extends to a point where the solicitor's legal obligations are diminished.
It is not uncommon for solicitors to accept reassurances from such clients that the client will personally fulfill certain tasks, without the need for the solicitor's involvement.
Consequently, the solicitor can be left out of the loop to a large degree. If problems emerge later, the question arises of whether the solicitor has in fact fulfilled their retainer.
You should always be cautious about relying too heavily on a client's assurances without taking independent steps to ensure that your legal obligations are fulfilled.
How to stay out of trouble
- Always document instructions received from a client in writing, either by making a file note or by providing a written advice to the client confirming the instructions you have received.
- If you intend to take a particular course to fulfil your client's instruction, put it in writing. Verbal instructions can be forgotten or misunderstood, but the written advice can be called upon later if the need arises.
- Acknowledge that while you may have a rapport with longstanding clients and may agree to their performing certain tasks in your stead, this does not eliminate the need for you to fulfil your legal obligations.