The ambiguous relationship between solicitors and clients can lead to problems arising around instructions

One of the things we have spent a lot of time doing at the Legal Ombudsman – and still have not got right – is our use of language.

I may have my moments, but I have not yet descended into streams of profanity in my correspondence with complainants and lawyers (although I have occasionally been tempted).

No – I mean it literally – the words we use, and when and how we use them.

And that is not simply because, as someone who has occasionally supplemented his income by churning out the odd freelance article (at least I used to, before ombudsman respectability overtook me), words matter to me.

It is a recognition that we have a challenging balancing act to perform – to produce written output which is accessible to the most vulnerable complainant, yet still commands the respect not merely of the lawyer or firm complained about but, potentially, the courts.

Our stuff has to be simple and clear, while at the same time thorough and intellectually robust.

So one of the processes we’ve been going through is trying to find ways of talking about legal services without sounding like lawyers.

Sentences have to be short.

Reports have to be written in the active rather than passive voice.

Above all, legal jargon is to be kept to an absolute minimum.

Easier said than done, you say, and you are right. Some words you can bar.

There is no good reason why legal proceedings have to be commenced instead of started, or terminated rather than ended. Some simply cannot be avoided, though.

Probate is probate, and there is nothing you can do about it.

But some legal language is more difficult to translate, because its very meaning is slippery and ambiguous.

Take the word ‘instructions’.

In theory, the idea is simple: instructions are what clients (another legal word which needs deconstruction, but that is for another day) give to lawyers – the things that lawyers are supposed to act on. Simple concept, simple word. So where is the problem?

The problem lies in the ambiguous relationship between lawyers and their clients.

People go to lawyers because they are facing a problem or want an outcome which they do not have the skills or knowledge (or, in a very few limited circumstances, the authority) to achieve for themselves.

But although lawyers’ customers may know the result they want, they rarely know how it is best achieved.

Given the intrinsic disparity in knowledge between lawyers and their customers, the notion of clients issuing instructions and lawyers obeying is not quite as simple as it may appear.

Clients may know what they want, but the lawyer is often – and rightly so – the key voice in determining how to go about getting it.

And it is in this space, between the client’s right to issue instructions and the lawyer’s duty to advise, that complaints can often arise.

Consider the following case studies:

Making her money go further...?

Ms D is originally from the UK, but moved to Canada years ago.

Sadly, news reached her that her cousin had passed away. A will hadn’t been made. A firm was asked to manage the estate, and Ms D understood she might be a beneficiary.

Months later, Ms D heard that the firm had written to her brother and other family members, telling them they were to be beneficiaries. But she had not heard anything.

Living thousands of miles away, it felt like a case of ‘out of sight, out of the lawyer’s mind’.

She wrote to the firm, asking if she was a beneficiary, and was told she was due to inherit more than £40,000.

Due to exchange rates and for convenience, Ms D decided to open an account back in the UK so that she could keep her inheritance in pounds sterling.

There would be a one-off charge of £8.50 to make the deposit into the account, because such a large amount of money was being deposited in one go.

Ms D asked the firm to transfer her inheritance to her in Canada using a bank draft in sterling. Instead, the firm sent the money via an international money mover transaction, which meant it was converted from pounds to dollars and back again.

The effect of the exchange rates, plus administration fees, meant that £1,358 was deducted from her inheritance.

Our investigation found that the firm failed to follow Ms D’s instructions, which resulted in her losing money and being charged unexpected fees.

We resolved the issue informally.

The firm admitted that it had failed to follow her specific instructions and agreed to refund her the £1,358.

Taking care...?

Mr A is the sole carer for his disabled mother, and he receives a carer’s allowance.

Some of his family were claiming part of the allowance, even though he felt they did not deserve it. He decided to take legal action to stop them getting money to which he believed they were not entitled.

He simply wanted to be able to get on with looking after his mother, and give her the support she needed. The last thing he needed was any extra stress or worry.

His primary concern was to sort out the payment of his allowance, which had been stopped pending a Department for Work and Pensions investigation.

Mr A felt that the firm had not followed his instructions correctly.

It repeatedly failed to produce paperwork he requested, and he said that letters produced by them were poorly drafted, which had a negative impact on him and his case.

He felt that the firm was concentrating more on contacting his family members and administration, than sorting out his benefit payments.

He was not happy with the amount he had paid the firm, as he did not feel that they had carried out the work requested.

Our investigation found that the firm had provided a poor service to Mr A. It had failed to follow his instructions and had prepared poorly written correspondence.

Following our negotiations between the firm and Mr A, the firm agreed to reduce its bill by £50 and pay him £150 for distress and inconvenience.

A mortgage story, with interest

Mr H instructed a firm to complete important paperwork for him, to do with a remortgage offer on his property.

It started work arranging a fixed-rate mortgage for him.

He also got advice from a financial adviser, who said there were much better deals around. They recommended he stop the remortgage until this had been looked into.

A few days later, Mr H received a letter from the firm stating that the mortgage application was going through.

He phoned them straight away, asking them to stop the application so he could get a better deal somewhere else.

A couple of days after the call, he was annoyed and frustrated by a second letter from the firm, stating that they were pleased to confirm that the remortgage offer had been completed.

He was not so pleased. He would now be out of pocket.

Because the firm had carried on with the remortgage, Mr H ended up having to pay £140 a month (over a two-year period) more than he would have done had he been able to go with a cheaper quote.

Mr H made a formal complaint to the firm, but did not get an answer.

He phoned to chase it up, and was left feeling like they were calling him a liar. So he provided copies of telephone statements to back up his claims.

This situation carried on for several months, with Mr H feeling that he was being treated with contempt by the firm in the hope that he would not follow up his complaint.

Our investigation found that the firm had failed to follow some of Mr H’s instructions quickly enough, which caused him financial loss. It agreed to pay him £2,500 in recognition of its failure to follow instructions, and he was very happy with the outcome.

The plot sickened

Ms J instructed a solicitor to represent her in an acrimonious divorce case.

It was agreed that some land owned by Ms J and her husband would be split between them.

However, before this was formally agreed, she asked her solicitor to get a hearing adjourned, so she could have peace of mind that all necessary checks on the land had been carried out.

To her dismay and disbelief, Ms J later discovered that there was a charge on her plot of land, which was linked to seeking planning permission, which didn’t apply to the plot her ex-husband had got.

She was already struggling financially, so paying the £50,000 simply wasn’t an option.

She felt that she had done the right thing in asking for a delay, so that checks could be carried out – but believed that the firm had not done what she had asked.

However, following our investigation, we found that the solicitor had in fact followed Ms J’s instructions. The application to adjourn the case was rejected by the judge, and Ms J had been informed of this.

Our investigation found that there was no poor service on the part of the solicitor, although it would have been useful for Ms J if his actions had been put down in writing.

While Ms J was not happy with how things turned out, this was not the solicitor’s fault.

Adding insult

Mr G asked a firm to pursue a personal injury claim after he hurt his back in a road crash.

During the case, the other side’s insurers made an offer of £1,650, which Mr G rejected because he did not feel it was enough for the agony he had already gone through and would possibly have to endure for a considerable time to come.

However, due to an administative error, the firm accepted the offer of compensation on his behalf. Mr G received a cheque for £1,650 – the valuation of his injuries based on an initial medical report and the amount offered by the other side in the first instance.

Mr G was trying to adjust to life with ongoing back pain.

Now he had the added aggravation of having to complain to the firm that they had not followed his instructions to reject the first offer, which meant that he had not been adequately compensated.

The firm agreed to get a second medical report and further advice which pointed to a compensation range of £4,750-£5,250.

Following our investigation, the firm agreed that it had made mistakes.

After negotiations between both ­parties and our investigator, the firm offered compensation at the top of the recommended range – £5,250 plus £400 for distress and inconvenience.

So how can we pick our way through the maze?

The truth is that the client does have the right to instruct.

They are buying the service (even when, as in the case of legal aid cases, it is the taxpayer who is picking up the bill).

But lawyers have a clear duty to help save clients from themselves. If what the client wants the lawyer to do is not in that client’s best interests, the lawyer must point that out.

And if what the client wants conflicts with the lawyer’s ethical or legal responsibilities, the lawyer must resist.

Instructions will remain a complex issue. We do not expect lawyers to get it right at all times and in all cases.

But we do need to see evidence that they have tried to balance their duty to advise with the client’s right to instruct.