The Gazette 1980

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. 21