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GAZETTE
JANUARY-FEBRUARY 1980
Law Society should adopt
Royal Commission proposal to
investigate negligent Lawyers
By A. H. HERMANN, Legal Correspondent,
Financial Times
Reprinted by kind permission from the
Financial Times,
6 December 1979
The opportunity for lawyers to make mistakes has
greatly increased over the past decade. At the same time,
the Courts have extended the liability of professionals —
not only lawyers but also accountants, bankers,
surveyors - for negligence, or "malpractice" as it is
described in America.
However, it is one thing to know that the lawyer has
made a mistake and is liable and another to obtain an
award of damages. For this reason, the recommendation
of the Royal Commission on Legal Services proposing
that the Law Society should investigate fully all types of
complaints against solicitors is of prime importance for all
users of legal services. The appropriate committee of the
Law Society is now considering this recommendation.
One would like to hope that it will not take years before
the Law Society will start doing what the commission
recommended.
Gone are the days when one could rely throughout
one's professional life on the knowledge obtained at
school and in training. Change is taking place almost as
fast in law as in technology. The number of statute books
on the shelf seems to be growing exponentially. EEC law
is penetrating all aspects of business. The expansion of
statute law and the invasion of Community law are
surpassed as a source of novelty by the internationalisa-
tion of business. The consequences of an increasing
number of transactions may now be judged not according
to the law of one country only, but according to different
laws of several countries where the transaction may have
its effect - and the effect need not be contractual but
result from some harm or damage experienced by an
unknown consumer or user of the product.
Every solicitor needs to keep abreast of developments,
if only to be aware of problems facing clients both at
home and abroad. Only large partnerships can do this
really well and only when they have a large network of
correspondents or their own branch offices abroad can
they undertake international work responsibly.
The dangers of mistakes which originate from the need
to cover such a wide and expanding area are additional to
the familiar but apparently not diminishing number of
mistakes from what one would call "conventional negli-
gence": a property transaction which a solicitor should
have registered but did not, or claims dismissed for want
of prosecution, not to speak of actions badly prepared for
trial or relying on legal arguments which no Judge would
be likely to accept. Moreover, the liability of the lawyer is
no longer limited to his client only or to another contrac-
tual relationship. The Courts have extended liability of
professional advisers, including solicitors, to liability for
any wrongful act including negligence which harmed a
third party. While the liability out of contract can be
claimed only within six years from the breach of contract,
liability in tort has a longer life.
In a way, clients or third parties who became victims of
a lawyer's dishonesty are better provided for than those
who suffered by his honest mistakes or simple negligence.
If a client's money is embezzled, it will be repaid by the
Law Society which has a special fund for this purpose,
but the satisfaction of a claim arising out of negligence is
certain only if it is not greater than the solicitor's insur-
ance cover. If it is greater, it can ruin the solicitor without
satisfying the damaged party.
The relatively small number of insurance claims - only
1,211 claims were made during the past four years - is
no indication of the numbers of dissatisfied clients. It is
not easy to prove in Courts that a solicitor was negligent.
The reason is not, as is sometimes assumed, that it is
difficult to find a solicitor who would act against another,
but rather that the litigation is usually long and costly
and, predictably, the claims are resisted with more than
professional doggedness. It is therefore, of prime impor-
tance that the Law Society should heed the recommen-
dation of the Royal Commission and stop turning a deaf
ear to all complaints which can lead to actionable claims
for damages due to bad professional work. It should not
limit its investigations to the relatively rare instances of
professional misconduct, but investigate fully all claims
unless they are clearly misconceived or frivolous.
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