Case Summary
Edwin was an experienced private client solicitor.
He had been advising his client, Theo, on tax and estate planning matters.
Theo came in to the office to sign some papers and happened to mention that he and his wife were in dispute with neighbours about a boundary wall issue. He asked if Edwin could advise him.
Edwin’s initial reaction was to suggest that Theo make an appointment to see a property litigation solicitor – but he didn’t want Theo to go elsewhere. Besides, Theo only wanted some advice on what was clearly a simple boundary issue.
And, after all, Edwin had done a conveyancing seat as part of his traineeship at the beginning of his career and felt confident that (with some research) he could advise Theo adequately on the matter. Edwin gave some initial advice to Theo, and they parted ways on very cordial terms.
Following the meeting, Theo emailed his title deeds and boundary plans across to Edwin. Edwin replied with some further advice, explaining that while the title deeds are, indeed, a bit muddled, an analysis of the boundary plan itself makes it clear where the boundaries between the neighbouring properties are supposed to lie.
Theo rang up two years later. He had relied on the email from Edwin and had erected a fence, refusing his neighbour onto part of the land. Following months of arguments, the neighbour had finally raised court proceedings against him. Theo had said he’d received a strongly worded letter from the neighbour’s solicitor.
Edwin was a bit concerned about all of this. He hadn’t thought that matters would escalate and he had only wanted to provide Theo with a bit of initial advice. To make matters worse, he could find no record of any conversations. In fact, other than his email to Theo – he had no written records at all - no letter of engagement and no file notes about this matter.
Theo sent a copy of the neighbour’s solicitor’s letter to Edwin. These solicitors were, in fact, specialists in property litigation and, on reading the letter, Edwin could immediately see his error. There was no clarity in a break-off description in the title deeds and the boundary plans were conflicting (at best) and certainly not in Theo’s favour. The litigation firm had made it clear that solicitors should not be undertaking any sort of detailed analysis of the plans – and that surveyors would be required to do additional work and confirm the position.
Theo was certainly not cordial when Edwin explained that he might have given him the wrong advice initially. Theo threatened to take his other business away from the firm unless Edwin paid for all of the legal and other costs that Theo and his neighbour had paid out in the boundary dispute up to this point.
Edwin’s partner was unsympathetic – he said Theo should have been sent elsewhere. “This is a private client firm. I wouldn’t try to give advice on property or litigation. I haven’t done those subjects since Law School. What made you think you could advise on these matters?” he said.
Underlying cause of claim
The initial advice in relation to the title deeds and boundary plans was incorrect. A solicitor more familiar with the world of conveyancing, boundary plans and title deeds would almost certainly have spotted the issues involved.
In addition, there is no such thing as “off-the-record” advice. A solicitor is either engaged with the client and acting in the matter or not. The absence of a letter of engagement, with a clear scope of work is a concern here (and also contrary to Law Society rules).
Lessons to be Learnt
Given that Edwin had never dealt with this type of property matter, he really should have simply declined the instruction. If a firm doesn’t have the relevant expertise in a particular matter, it is in their client’s best interests (as well as their own) to just say “no”.
Dabbling in an effort to keep a client happy will often have the opposite effect.
How to prevent these issues
What could Edwin have done differently?
Directed Theo to a more specialist firm
Solicitors have to work incredibly hard to attract and retain clients and it might be a difficult decision to send a client to a potential competitor. However, if Edwin had explained that this particular piece of work was outside his expertise and suggested the client contact a specialist firm, the openness, honesty and helpfulness of doing so would likely mean Theo would return to Edwin for other matters. Theo would be very unlikely to return now.
Also, from a commercial perspective, it makes sense to refer the client on – solicitors simply cannot afford to take on work in areas of law they know little about. The potential cost in terms of unhappy clients, complaints, negligence claims and increased insurance premiums can far exceed any fees generated from a one-off piece of business. The solicitor may also find themself in breach of practice rule B1.10 which provides that “You must only act in those matters where you are competent to do so”.
Relied on external specialist support or on counsel’s opinion etc
Obtaining input in the form of a specialist report or counsel’s opinion may have helped in this scenario. However, a word of caution here. Some solicitors think it’s acceptable to act in areas in which they have no expertise, provided they outsource the work to a specialist or they obtain an opinion from counsel. It’s worth remembering that, even if an error originates from an external specialist such as counsel, the client is likely to bring a claim against the solicitor with whom they have the direct relationship. The best advice is that if you don’t have the expertise to critically evaluate expert assistance such as counsel’s advice, then you should not take the matter on.
Diversified
Obviously, there was no time for Edwin to develop new competencies between receiving the instructions and carrying out the work. However, after declining this particular instruction, he might have decided that it was worth expanding the firm into new areas of practice in order to widen the service offering.
Diversification may be a very astute commercial move, but it must be undertaken with great care to avoid the dangers of dabbling. The key to developing new competencies while minimising the risks of adverse impact for any practice is to develop new skills in accordance with a structured plan. We recommend you read our article in the Journal for our discussion on developing new competencies: Navigating competencies (opens a new window).
Stay focused
Acting in unfamiliar areas is a dangerous practice for law firms. Solicitors should be aware of their core competencies and be clear with their clients on what they will and will not advise them on. They should not be afraid to explain that there are certain things they cannot do. By steadfastly focusing on the fields they specialise in and avoiding dabbling, solicitors can focus on what they do best and increase their certainty and confidence.