Getting it right

Practitioners will have been interested to read two seemingly unconnected utterances from the higher echelons of the judiciary recently.


The first, the High Court decision in R (Bramall) v Law Society, 21 July 2005 (see [2005] Gazette, 18 August, 1) gave judicial approval to the right of solicitors accused of misconduct or poor service to defend themselves robustly when dealing with the investigation of those allegations.


The second was the recent speech by the then Master of the Rolls, Lord Phillips, bemoaning the number of 'hopeless' appeals that come before the Court of Appeal. He gave tacit support to those who consider that the 'compensation culture' has invaded every aspect of our professional lives.


There is no doubt that many complaints made against solicitors, especially in contentious matters, arise largely because of a client's dissatisfaction with the outcome of a case. How often has a perfectly civil and constructive solicitor-client relationship turned sour following an adverse finding in court?


However, whatever the reason behind complaints, solicitors must accept that, just as they are entitled to defend themselves vigorously, the Law Society has a duty to the public to investigate complaints thoroughly, and ultimately to adjudicate on them fairly.


The key weapon in the armoury of solicitors wishing to defend themselves against what are perceived to be misguided complaints is to be able to demonstrate that they have adhered to the requirements of The Guide to the Professional Conduct of Solicitors 1999 (8th edition). It is where it cannot be shown that those guidelines have been followed that it is often difficult to refute allegations, particularly of poor service.


It is important to be able to provide evidence that advice said to have been given has in fact been given, that costs information has been provided and updated, and that procedures for dealing with, for example, supervision of staff and complaints, have, in fact, been properly utilised. Solicitors are expected to show that they have advised their clients of the risks of litigation and undertaken a cost/benefit analysis of those risks. If they can do so, they need not fear that the outcome of litigation will expose them to valid criticism.


Once a complaint raising prima facie issues of misconduct and/or inadequate service is made, it will be investigated by the Law Society unless conciliated. But the solicitors who have got it right, and are able to demonstrate that they have got it right, have nothing to fear. Adjudicators will give complaints that are demonstrably unmeritorious the same short shrift that Lord Phillips intends that the appeal court should give to appeals of a similar nature.


This column is written by a Law Society adjudicator