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Striking the balance: too much or not enough?
  • Jun 3, 2024
  • Latest News

Author, Katy Giles, Manchester -

You would be forgiven for thinking that those currently scrutinising the solicitors' profession - whether it be the SRA or clients turned claimants - have a case of the Goldilocks: either solicitors have gone too far, or they have not done enough. To protect themselves from claims or regulatory scrutiny, how do solicitors get the balance right?

Two Ends of the Spectrum
We have seen a number of ways in which, and reasons why, solicitors have gone too far for their clients.

Sometimes solicitors have pushed the boundaries because they want to help a vulnerable client, such as in the recently well-publicised cases of immigration lawyers allegedly encouraging clients to embellish their applications for asylum in order to improve their prospects of success. As a profession, we must always balance our duty to act in our clients' best interests, and often our wish to do as much as we can for our clients, against our  professional obligations to act with honest and integrity.

It is that requirement to act with integrity that solicitors must bear in mind when clients ask them to take questionable steps on their behalf. This can manifest itself in the case of  SLAPPs (Strategic Lawsuits Against Public Participation), a current area of focus for the SRA. In the current economic climate, with firms and lawyers under increasing pressure to keep their clients happy, we anticipate that this issue will come into even sharper focus.

It is not only in relation to regulatory obligations that we see solicitors going too far. There have been a number of recent examples of firms facing claims where it has been alleged that additional duties were assumed as the firm either failed to keep a close eye on the scope of their retainer or, as in Spire Property Development LLP v Withers LLP [2023] 4. W.L.R. 56, did not clearly define the scope in the first place.

At the other extreme, firms are facing allegations that they failed to do enough for their clients. Solicitors must consider what advice might be reasonably incidental to the purpose of the work they are carrying out for their client, or they risk claims due to work that was not done, rather than errors in work that was done. It is difficult when, for example, clients have limited funds and cannot afford to instruct an array of experts or specialist advisors, but solicitors must not fall into the trap of presuming what a client will or will not want to pay for.

In recent years there has been a raft of claims against matrimonial solicitors alleging under-settlement of financial proceedings due to failures to – amongst other things – fully investigate an ex-partner's assets or advise on a pension sharing order including obtaining an expensive actuarial report. Without evidence on file that clients were advised of the potential cost and benefits of carrying out such work or obtaining external advice, defending such claims becomes more complicated.

Top Tips
How can solicitors navigate these competing extremes? We recommend:

1. Taking the time at the outset to clearly define your retainer and keep it under review;

2. Ensuring that any changes or limitations to a retainer are agreed with the client and recorded on file;

3. When advising clients, making sure to explain options that you have considered and discounted;

4. Where a client declines to obtain expert input or enters into a settlement against advice, asking them to sign a waiver setting out the advice and their contrary instructions;

5. Always remembering your professional obligations to act with honesty and integrity. If you are not sure, speak to a colleague, to the SRA or to another solicitor who might be able to help.