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GAZETTE
SEPTEMBER 1979
of attendance notes, and indeed anything to indicate that
the partner concerned has applied his mind to all the
aspects of the problem and has reached a balanced
judgment, even if with hindsight the decision may be
wrong.
With some hesitation, therefore, I would like to
advocate the use of standard check lists adopted and
amended as necessary to form the basis of the file and to
show the various steps with dates by which action has to
be taken to enable the maintenance of a simple check that
each necessary step has been taken. This applies both to
contentious and non-contentious work in the legal field,
and similarly in connection with, say, valuations, it forms
a very helpful piece of evidence to justify the action which
has been taken when the matter is considered in Court.
Supervision by Principals
It is quite remarkable how many claims arise when it is
discovered that the individual claimed to have been
negligent whether admitted or an unqualified assistant is
disclosed as being no longer with the firm against whom
the claim is made. It seems as if there may be substantial
numbers of those who do not achieve practice on their
own account or in partnership who go from one firm's
employment to another and, for some reason having left,
the firm are the legatees of a problem created by some
negligence. Sympathetic as one would wish to be, the fact
is that since the ultimate responsibility to the client is that
of the Principals of the firm, there usually appears to be
some lack of adequate supervision which has allowed the
assistant to create the situation without it being detected
and remedied at the time. Busy practices with ever-
increasing workloads do create great problems for
Principals who have little time to supervise the work of
their assistants as they would wish. However, the
obligation is there to see that the task undertaken has
been competently performed, and this in my view is yet a
further argument in favour of reducing to writing by a
detailed engagement letter and use of appropriate check
lists which quickly enable a Principal inspecting a file to
see what progress has been and that the matter is going
ahead in a proper and efficient manner. Accountants
seem to manage this almost as a matter of routine, and on
the face of it there is no valid reason why other pro-
fessions should not bring their systems into line. While
not wishing to encroach on Mr. Clark's address, it seems
to me that Surveyors performing valuations and
structural surveys will be much assisted by procedures of
this kind.
Having made this comment supervision remains a
problem.
Communications with the client
As indicated earlier, breakdowns in communications
are a fruitful source of problems. Much complaint and
misunderstanding arises from a failure of the Professional
to keep the client informed of what is happening.
Obviously one can only do one's best, and no assurance
can be given that a difficult client's every demand can be
fulfilled. On the other hand if he is not told of difficulties
that have arisen who can blame the client for thinking that
his adviser is falling down on the job? Claims arise for
loss, such as loss of interest payable on bridging loans
because of late completion of a conveyancing trans-
action. These are not infrequently blamed on the Solicitor,
when a ready explanation to the client at the time of how
the problem has arisen may well have diverted wrath and
a possible claim.
In litigation of necessity there are delays in forwarding
the matter, particularly in personal injury claims, where
by reasons of difficulties and medical evidence or the like
actions cannot be brought on for hearing as speedily as
would be wished. Here again a periodical explanation to
the client of the problem will do much to avoid trouble.
An adequate diary system
You may be interested to hear that in one country it
has now been made a matter of professional misconduct
for a lawyer to fail to maintain in force in his office an
efficient diary system to prevent time barred claims
arising. That is not the position here, but there is no doubt
that lack of an adequate diarying system with early
warning dates of time limit periods is an essential part of
any practice where time limits are of importance. While a
computer system which can easily be devised to give
routine timely warning of all dates of importance can be
set up, this may be an expensive luxury in a small
practice, but however the diarying system is achieved it is
essential to have one apd one that is under the direct
supervision of a partner who can check on each matter to
see that dates are not going to be missed and claims
caused in consequence.
Specialist advice
The warning here must be that each should accept his
own limitations, especially where specialised fields are
concerned. For example, in structural surveys if in doubt
Surveyors should not hesitate to recommend their client
to engage the services of a structural engineer. Equally,
Solicitors who should not need to seek the advice of
Counsel on normal matters within their own competence
should nevertheless never hesitate to advise seeking the
expert advice of Counsel, particularly in specialised fields
such as Planning Law, Tax and many others, if they are
not themselves wholly familiar with what is required.
To conclude, it will be obvious that the foregoing
comments are in very general terms.
It may well be thought that nothing that has been said
is other than obvious, and this is, of course, true.
Surely in all professional engagements the matter is
very largely a matter of common sense and forethought at
the time as to the action necessary to provide the client
with a satisfactory service. No doubt the conditions in
which we live with ever-increasing overheads and similar
problems do tend to cause the professional firm to
become overburdened with work with the obvious
consequential risks of mistakes occurring.-This must be a
question for the individual Practitioner, but quite clearly
the heavier the workload the more he must ensure that the
conduct of his practice is systemised as far as possible to
avoid the necessity for over-reliance on memory and the
risks that this creates.
It will in my view be a sad day if Professional Prac-
titioners are forced in order to protect themselves against
claims to take measures which lead to the deterioration of
the quality of the service which they provide, but there is
no doubt that the escalation of claims in recent years due
to many causes is one of serious concern to everyone and
that if the position is to improve it is not in the field of
more efficient insurance but of fewer claims.
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