It could happen to you

New Chief Executive of Legal Defence Union makes the case for signing up to membership

The Journal, March 2003, page 34

When I was in practice I thought about joining the LDU, but never quite got round to it. Was it value for money was one thought. What exactly did it do anyway was another. But probably the biggest stumbling block to joining was the belief that it couldn’t happen to me. What was this it?

I never quite got round to defining that exactly but knew it involved a red letter from the Law Society.

Things have moved on since those days. The regulatory and risk management framework of the profession has radically altered; the public is much more litigious, red letters from the Law Society are now green and I am the newly appointed Chief Executive of the LDU. As such I am now in absolutely no doubt that it is in every solicitor’s interest to join. But then I would say that now, wouldn’t I? Please read on, however, to see if you don’t agree with me by the end of this short article.

It could happen to you

The it that every solicitor dreads is a complaint being made to the Law Society. Even if the complaint is entirely without foundation, it will take up valuable time in investigating the background and corresponding with the Client Relations office. The complaint may be referred to a Reporter who will examine the solicitor’s files in detail and prepare a report. That report will form the basis of the Client Relations committee’s deliberations and will inevitably involve the solicitor in more investigation and correspondence. At the end of the day, irrespective of the outcome, the solicitor will have had a very trying experience as many will know to their cost. In the worst case scenario, the Law Society may decide to prosecute the solicitor before the Solicitors Discipline Tribunal with all the possible consequences such action entails.

Yet, as worrying as the above scenario is, it is probably the least likely threat facing the profession. It is much more likely that solicitors will be faced with making difficult on the spot decisions about matters such as client confidentiality, conflicts of interest, and fee charging. Get these things wrong and the serious consequences outlined above can follow. A few questions highlight the difficulties faced in these ethical minefields.   

When can you act against a former client?

How do you recognise a conflict of interest?

Do Chinese walls protect you?

How far does the fraud exception to privilege extend?

Can events in my private life give rise to a complaint to the Law Society?

What can constitute inadequate professional services?

How many solicitors feel absolutely confident that they could answer any or all of these questions with complete certainty?

Is there anything the solicitor can do to avoid a complaint? Don’t make mistakes is the counsel of perfection, but in these days of clients increasingly complaining on more and more spurious grounds, even that may not be enough to prevent the green letter arriving. At some point after the letter has arrived, the solicitor may decide it is time to get help and the LDU might well spring to mind. Can I respectfully suggest that this is two steps too late. Firstly, if you are not a member of the LDU at that point, you would not be covered for assistance. Secondly, even if you are a member, you should have contacted the LDU much sooner. We are not an organisation of last resort only to be called in when a report is recommending a sanction against the solicitor or later still when prosecution is to be undertaken. My experiences while serving on a Client Relations committee have shown me that the majority of complaints are of a service nature and not conduct based. Many of these service complaints arose from an error of judgment at some point in a transaction that could have been avoided. How? By talking the problem over with someone who can help at that stage. 

Most solicitors instinctively know when something doesn’t seem right. Unfortunately, under pressure from clients, they sometimes ignore their instincts only to regret it later. The LDU now offers a new service to members to help prevent such problems arising. All members can telephone me for quick, confidential and practical advice on how to deal with any professional ethical problem. If necessary, I would be able to speak to members at the weekend or out of office hours if this was more convenient to them. If required, an early meeting could be arranged. The taking of advice at an early stage would not only prevent many problems arising, but also offer effective assistance during a Law Society investigation for those problems that were not resolved. In the final analysis, it would at least show the member in a very good light during any subsequent complaint or disciplinary hearing, and should in most cases offer a significant degree of mitigation.

Having taught professional and legal ethics now for several years, following twelve years as a partner in private practice and having also offered a variety of CPD courses on professional matters I am well versed in the professional requirements of the profession. I also have the full strength of the LDU behind me with its range of expertise in various areas of practice.

What does the LDU do?

It certainly represents members before the Solicitors Discipline Tribunal and if necessary before the courts. However, as I have tried to indicate above, that is its ultimate function.

Like a good doctor, the LDU tries to exercise preventative medicine. As well as offering the help line above, the LDU can offer CPD courses on a variety of topics. These courses in addition to counting towards CPD hours would also normally count towards management hours. The  LDU will also provide updates to members on changes in legal practice and highlight any significant changes in practice rules or court decisions affecting the profession.

Is it value for money?

Like any insurance policy, if you don’t have a claim, there appears, at least superficially, to be no return. All of us pay motor insurance against the possibility of an accident. Yet many solicitors don’t share the same view when it comes to their professional and business well-being. It will never happen to me. As I hope I have shown, it is becoming more common and in light of the changes suggested by the Justice 1 committee report on complaints against solicitors, it is likely to continue to grow. Membership of the LDU isn’t really about the worst case scenario, it is about managing a continuing risk all solicitors face daily. The LDU now offers practical and affordable help to all solicitors. The cost of even one finding of inadequate professional services against a solicitor would probably be more expensive in simple cost terms than a year’s membership.

Although the current subscription already represents excellent value for money, I am re-negotiating the cover available to members through our indemnity policy, to focus more on the current needs of the profession for practical advice rather than the need for defence. For corporate members, I intend to offer an annual visit and “health check” service. In the meantime, I would be more than happy to speak to any solicitor about membership and what he or she would like us to provide to the profession or to their firm in particular. The new LDU advice line number is 01561 340336.

I started this article by posing the question “The Legal Defence Union- do you need it?” I hope I have convinced you that you certainly do.

For more information on membership and its benefits please contact David O’Donnell on the new Advice Line Number 01561 340336