The SRA have just released their Spring Update to their Risk Outlook. Everyone’s thoughts turn to worries about getting something wrong and being sued for negligence. As a profession we are getting more risk-averse. No-one ‘takes a view’ on a point and instead everyone recommends getting title insurance (though don’t get me started on that!).
But what are the main reasons why conveyancers get sued? And bear in mind that conveyancing (and particularly commercial conveyancing) is one of the biggest risk areas in legal practice.
Most people would think that not being up to date on the law is going to lead to negligence claims. But is that so? The truth is actually quite different…
The most common causes of mistakes are apparently, in order of frequency:
- Missed time limits, issue dates, break clauses, expiry, service of notices, etc. Case management systems can help with this.
- Poor communication between client and lawyers, and other team members. In my view this is the trickiest one to deal with.
- Lack of, or poor supervision. Again good management practice helps here.
- Undertakings. One wonders why we give them at all. No other profession does – are they a relict that should be scrapped? But what would replace them? Escrow accounts perhaps? For the future…
- Ineffective organization of files, papers, documents, desks, projects, etc. Lexcel or similar systems can deal with this risk.
- And at the bottom - Lack of knowledge of the law - Surprisingly this is the last one on the list but it is the thing that most lawyers focus on much more than any of the others!
These issues are often seen combined together in a case where there has been negligence. For example say a key date has been missed, usually for the service of a notice or issuing of proceedings. Then often there will be a dispute with a client as to whether it was the responsibility of the client or the solicitor to serve the notice, or whether the solicitor should have reminded the client of the approaching deadline. Communication issues are often underneath every problem.
Why is communication a problem for lawyers?
Effective communication takes time spent on each case, and time is expensive. Legal work is being streamlined to spend as little time on each case as possible and often much less time is spent with clients than in years gone by.
But paradoxically there is vastly more ‘stuff’ that clients need to be told, and understand. So how do we do this? We send out long bespoke reports to cover our backs – despite the fact that we know the clients are unlikely to read them all or understand them. Ask yourself – is there any other service provider in the modern world that does this – NO!
So what could we do to communicate better?
- First of all – communicate more frequently and update clients on a drip feed rather than information overload. Outcomes Focused Regulation has this as one of their Indicative Behaviours.
- At the very start give clients a pre-prepared flow-chart or guide overview to the whole procedure in an attractively designed online or paper format.
- Don’t reinvent the wheel – have pre-prepared explanations of points that you need to explain time and time again.
- When you tell a client you have reached a stage in a transaction, give them a link to a short explanation of what this is, why it is important, and how they can help move things forward. See below for an example of this.
- Don’t use jargon, or legalese. Use plain English. Don’t say to clients ‘oh it’s a technical legal point’ – actually explain it to them so that they can understand and take the risk, not you. This is where prepared explanations come in handy.
- Make sure your client actually understands the point in question - it will not necessarily be a defence to a LeO complaint to say ‘I put it in a report’. The LeO may still find against you otherwise.
One new idea to help prevent communication problems is the InTouch App - it allows you to keep clients in the loop at each stage, with the key points they need to know available to them. Using doesn’t take up precious time yet many clients will be able to know exactly where their case is at any time, without bothering you for updates. Although InTouch only deals with conveyancing, the possibilities are there to create something similar for any line of legal work. Will the traditional paper reports be the norm in 5 years time?
I doubt it.