Risk management

Experts - some hints

Care needs to be taken when instructing a third party to assist in a client's matter. It is difficult enough to manage the solicitor-client relationship, let alone to do so when a third party becomes involved, as is often the case with surveyors, accountants, medical or other experts, and barristers.


The idea is to instruct a third party to assist the solicitor in dealing efficiently with an area of law outside his own area of expertise, thus reducing his risk exposure by transferring that risk to the third party. Unfortunately and all too often, solicitors increase their risk exposure by failing to instruct a third party properly.


Some useful hints:

Ensure the client is advised at the outset in the retainer letter if an expert is likely to be needed. Explain why this is so, and, if possible, the likely fees.

If it is decided to instruct an expert later in the transaction, the client should be consulted when that decision is made, and again advised of potential fees.

If the expert is not known to the firm, ask for references and make appropriate enquiries as to ability and competence.

Always confirm instructions to the expert in writing and ensure that all relevant information is supplied, including any critical dates, timescales for a response or report, details of costs, and method and timing of payment.

Establish as soon as possible what the expert expects of the firm and the client in respect of information and instructions.

Respond quickly to requests for information and ensure that the client is advised of any developments. Consider whether it is appropriate to send the client copies of correspondence and reports.

Be aware of potential conflicts.

If the firm maintains a register of experts, be aware of the implications of data protection legislation.

Check the expert's level of insurance cover, ensuring it is adequate, and check renewal dates.

The quality of advice received will often depend on the quality of the instructions. Make sure that all the issues to be considered by the expert are clearly identified. Experts frequently complain about the adequacy of the instructions received.


Always make sure on receipt of the advice that it addresses the issues raised in the instructions.


Be ready to question any advice; do not blindly rely on it. Solicitors might still be negligent if they fail to identify an obvious and basic mistake. If you undertake to pay an expert's fees, make sure you either do so for a specific sum, or put a cap on them.


This column was prepared by Alexander Forbes Professions, part of Alexander Forbes Risk Services