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Tradecraft – one solicitor's experience

17 June 19

A veteran property solicitor offers some practical “nuts and bolts” advice for trainees and the newly qualified, based on personal experience – and hopes others will do likewise

by Ashley Swanson

Awkward clients

It is sometimes the case that clients are awkward because they cannot get answers to what they regard as simple questions. If any information has to be imparted, this should be done sooner rather than later so the clients have time to organise their part of the transaction. My way of dealing with awkward clients is to increase the input on my side and keep the client informed as to what is going on, preferably by email as opposed to telephone.

An email message can be shared with a joint purchaser or seller and can be referred back to at a later date. A telephone call has lesser value on both counts. In my time in the law the two greatest things to come along have been Microsoft Word and emails.

In the medical profession there is the “bedside manner”, which in modern times some doctors do not think is worth learning, but keep in mind that you are more knowledgeable in the law than your client and you have the advantage that even if you are not quite sure what you are doing, you are able to do the necessary research or tap into whatever expertise is available to come up with the information or work out the correct course of action. If the client has anxieties you have to learn what the most effective way is of addressing them.

Snippy emails from clients

If a client sends you a critical email, do not blast back at them in the same manner or immediately go on the defensive. Reply, without any appreciable delay, by email giving a clear and concise account of the situation and your handling of it. Don’t try to respond by telephone. If the client is up to high doh about something, the spontaneous nature of a telephone conversation, on both sides, is too risky. A measured response is needed.

Very importantly, add an extra paragraph to your email just to show that you are doing everything possible to make the transaction go smoothly. For example: “I am requesting the loan funds a day early because these direct bank to bank transfers sometimes float around in cyberspace for most of the day and arrive at our bank at 4.45pm. If this happens on the day before the settlement day there is no difficulty, but on the day itself it could cause all sorts of problems. There have also been cases recently where computer glitches at banks have delayed transfers, and suitable precautions need to be taken.”

More often than not, in the next email the client will take a step back and will not pursue their complaint any further. This might be done in a grudging manner, but diplomacy on your part is invariably the best way of dealing with these situations.

The 24 hour rule

If you receive a letter or email from another solicitor and you are simply furious about it, then provided it is not something which requires immediate attention, turn it face down on your desk. Do not pick up the phone and lose your temper with the other solicitor. You can think about it, you can fume about it, but do not do anything about it outwith the four walls of your room. Twenty four hours later, turn the letter or email face up and then deal with it, and I can almost guarantee that you will respond in a more conciliatory and balanced manner than you would have done had you responded right away. Although at the end of the day our clients pay our wages, we are not employed to lose our tempers or to fall out with other solicitors we may have to deal with in the future for other clients.

Dear Jenny/Dear Bill

If the solicitor on the other side of a transaction is an old university friend or someone with whom you have played golf, correspondence should still be on a formal basis. I reviewed a case once where a landowner was involved in a rather unusual development project and was becoming concerned about the way in which the matter was being conducted. He had copies of the correspondence between his solicitor and the developer’s solicitor and they were addressing each other by their first names. Nothing untoward may have been going on, but if the solicitors had maintained a more professional “distance”, the landowner might not have been left wondering whether some sort of carve-up was taking place.

Specialised valuation advice should also have been taken by the landowner’s solicitor, if only to cover himself against any accusation that the ground was being sold at an undervalue. The landowner’s accountant was also involved in the negotiations. What expertise he had with regard to valuation was not apparent. To my way of thinking, there was a worrying lack of professionalism in more than one aspect of the case.

“Our toils obscure, an’ a’ that” – Robert Burns

A client once wrote to me: “So far in dealing with my mother’s estate you have done next to nothing.” I responded, very politely, to the effect that so far in his mother’s estate we had received 122 letters and sent out 156 letters. No further complaints were received, but I understood the client’s concern as he could not tell how thick the executry file was.

When you are issuing a fee note, count the correspondence and state on the fee note – letters and emails received, x; letters and emails sent out, y. This will prevent the client saying to his friends: “My solicitor just wrote a couple of letters and he charged me hundreds of pounds.”

Noting interest in properties

Mrs Smith telephones you one Monday at 9.02am to say that she has seen a house at the weekend and could you note her interest with the selling solicitors. The call ends at 9.10am. Your secretary has just put a nice cup of tea down on your desk so you drink it and have a quick look at the local newspaper. At 9.20am you telephone Snooks & Co to note the interest, only to discover that another solicitor contacted them at 9.15am to make an offer and in the absence of any other noted interests they accepted it.

You should have contacted Snooks & Co at 9.11am, and when they received the offer they would probably have given your client the chance to bid at a closing date. Your tea might have been getting cold while you were on the telephone, but you would have been doing your best for your client. If the other offer was lodged at 9.05am while you were speaking to Mrs Smith, a note of interest at 9.11am would have been too late, but that would have been bad luck for Mrs Smith, not negligence on your part.

Lesson: Don’t have any delay at all in noting an interest, and put a note in the file as to the exact time the interest was noted. You will, of course, already have informed Mrs Smith that noting an interest does not guarantee her a chance to bid if the seller decides to do a “doorstep deal” with someone else, ignoring all of the noted interests in the process, but once again you need to anticipate what could deny your client a chance to bid and cover it.

Non-Scottish clients

I have a memorandum for issuing to clients not familiar with the Scottish system of buying properties, which points out that there is no contract to sign, the missives are the contract, and that everything is done by the solicitor. This avoids the clients saying “How on Earth can we be committed to buy this property? We haven’t signed anything yet.” Here in Scotland there is no intermediate stage such as exists in England where a deal is agreed but neither side is committed until a contract is signed. It is essential to point this out at the earliest possible opportunity.

Incoming deed plans

If a draft deed plan is kept loose in the file and not filed with the covering letter or email, write on the back of the plan the date of the letter to which it relates, and if it came as an attachment to an email, the time as well as the date. This avoids having a number of different plans floating around in the file with nothing to indicate which is the current version. If you end up attaching a superseded version of the plan to the deed, this may go unnoticed until in the fullness of time it forms the beginning of a negligence claim.

Same day settlements

If clients are trying to settle a sale and a purchase on the same day without bridging, it is absolutely essential for you to explain to them, in writing, the mechanics of such a process and in particular that you cannot under any circumstances issue a cheque or instruct a CHAPS transfer to pay for their new property until you have received settlement for their existing property. Under no circumstances whatsoever can you issue a settlement cheque in anticipation of receiving settlement of their sale later on the date of entry.

The clients will not appreciate it if this is only explained to them on the afternoon of the date of entry, when they are outside the new property with children and a furniture van containing all their worldly goods. In the legal profession there is only one thing worse than a panic, and that is a panic on a Friday afternoon.

There is a risk involved in same day settlements without bridging, and that risk must rest firmly with the client. Part of the process is completely beyond our control, to the extent that we cannot compel the purchasing solicitor to settle with us if there is some holdup on their side.

Raising your game

A client needed advice on a specialised agreement he was entering into with his employer and there was a measure of urgency. I told him that I had already spent two hours studying the draft agreement and would be visiting the law library at Aberdeen University at lunchtime to gather more information. If you are doing that little bit extra, make sure that the client knows that he is getting that little bit extra above and beyond what he might receive elsewhere.

Handwritten file notes

Unless these are fully legible, they should not be in the file in the first place. Type them out or dictate them to your secretary. An illegible handwritten note simply tempts providence if someone other than the writer misinterprets it. I once noticed that we were selling a “copy” top floor flat. I wondered if this meant that it was exactly the same as the other top floor flat in the tenement. The draft schedule of particulars was handwritten and the word in question was actually “cosy”.

Economy in printing off emails

Obesity is not only a problem for people; it is a problem for solicitors' files. One of the principal reasons for this is the habit some people have of joining new emails onto previous emails and then printing off the whole progress.

In a file which I was given to review before closure, one incoming email had been printed off on 15 further occasions after receipt. I removed over 100 A4 pages of repeated emails and other duplicated items before closing a much slimmer file. Use the page selection function on each occasion before printing off only what does not already exist in the file.

Economy generally

A simple mouse click will allow you to print off lengthy deeds, leases etc on both sides of the paper. Newspapers and books are not printed one sided, so why should a lengthy legal deed have to be printed on one side only?

Filing

A filing basket is not necessary at all. Filing should go straight into the file. The property lady in a firm I used to work for was not particularly energetic and filing was a spasmodic activity. I used to go through her filing basket on a Saturday morning and on one occasion I fished out six separate unfiled items which belonged in a particular file. Anyone picking up the file would be somewhat sort of a proper understanding of what was going on.

“Live”, i.e. unpaid invoices should be kept loose at the front of the file, and unanswered letters should not be put on the treasury tags until they have been dealt with.

Filing should be done in strict chronological order. It infuriates me when I am reviewing a file and I come across a lengthy outgoing letter, and the incoming letter to which it is responding is located in the file after the outgoing one.

Visiting the shredder

This should not be done in conjunction with any other task. I once took some papers down to the shredder along with a newly signed standard security which I was intending to copy before sending for registration. As you may already have guessed, I went to the shredder first and put everything through it including the standard security.

Signing the firm name or using its facilities

No matter how much pressure you are under, do not sign the firm name on letters under any circumstances unless you have written authority to do so, especially when dealing with missives. Do not even sign anything “pp”. Go and find someone in the firm who has authority to sign.

When I was an apprentice, a fellow apprentice was living in rented property and was in dispute with his landlord. He wrote the landlord a letter on the firm’s headed paper and signed it himself with no authority whatever. He was under the impression that an apprentice could not be sacked. The firm might have been quite happy to have issued the letter on behalf of the apprentice, so why he took such an appalling risk was beyond my comprehension.

Another apprentice I worked with had a sideline doing cordon bleu cookery outwith office hours and had business cards printed with the firm’s telephone number on them. When challenged about this she simply could not understand what she had done wrong.

Healey’s law

The politician Denis Healey propounded Healey’s law, which was when you find yourself in a muckle great big hole, stop digging immediately. If you discover that you have made a serious error, own up to it right away. Do not try to cover it up. The partner may be able to come up with some simple way of dealing with the problem, but time may be of the essence and you will only compound your error if you are caught concealing the mistake.

Ashley Swanson, solicitor, Aberdeen
The writer would like to encourage other solicitors to share points of advice based on their experience, and the editor would be pleased to receive these for publication
e: peter@connectcommunications.co.uk

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