When silence isn’t golden: Detecting early warning signs
BY GLENDA CARRY AND CANDICE PERRIMAN – NOV 03, 2023 8:55 AM AEDT
Snapshot
- Poor communication is the leading cause of professional indemnity claims against solicitors across all areas of practice, with delay being top of the list in litigation matters.
- Delay and breakdowns in communication can happen for a variety of reasons including heavy workload, stress and poor supervision.
- With the right systems in place, early warning signs can be heeded and measures taken to prevent issues escalating.
Delay and a failure to communicate can give rise not only to disciplinary issues but also professional indemnity claims. Lawcover reports that poor communication is the leading cause of professional indemnity claims against solicitors across all areas of practice, with delay topping the list of factors giving rise to professional indemnity insurance claims in litigation matters. The good news is that with the right systems in place, early warning signs can detect issues and measures can be taken to prevent these issues from becoming bigger problems.
Legal Services Commissioner v Mouritz
In the recent case of Legal Services Commissioner v Mouritz [2023] QCAT 325, a solicitor was retained to act for a client in a claim for unpaid wages against a former employer. The solicitor met the client to discuss the matter, and provided a scope of work and costs agreement detailing that she would have day-to-day conduct of the matter and was the primary contact for all queries.
About three weeks after their initial meeting, the solicitor advised the client that she would be filing his claim in the Magistrates Court within the next week. The client followed up with the solicitor about two months later looking for an update on proceedings. It was then discovered the claim had not been filed. Following this discovery, the solicitor provided the client with the draft statement of claim and assured him that all required documentation would be sent to him the following day. This was not done. The client again followed up with the solicitor and she reassured the client that the documentation was delayed due to it being checked over and it would be sent to him later that day. It was not sent. Ultimately, over the next two years the client continued to follow up with the solicitor through various communication channels including email, phone calls and in person, to no avail. The client made a complaint to the Legal Services Commissioner alleging failure to progress the matter.
The client terminated his retainer with the solicitor and filed the material himself. The client then engaged a different solicitor and the matter was finalised within nine months. The solicitor was charged with two disciplinary charges by the Legal Services Commissioner. The charges were that the solicitor (i) without reasonable excuse failed to comply with a written notice issued by the Commissioner, and (ii) failed to maintain reasonable standards of competence and diligence.
The solicitor did not engage or give any explanation for her conduct to the Tribunal.
A finding of professional misconduct was made with respect to the first charge, with a recommendation that the solicitor’s name be removed from the roll of legal practitioners. The Tribunal made a finding of unsatisfactory professional conduct with respect to the second charge.
Delay and breakdowns in communication may occur for a variety of reasons including heavy workloads, stress and poor supervision. However, when there are no early warning systems in place to detect problems, it becomes much harder to prevent issues from escalating.
Another recent example
In a recent Lawcover claim, an employed solicitor had day-to-day carriage of a client’s personal injury matter. Six months after the costs agreement was signed, the solicitor briefed counsel to advise on the cause of action and draft a statement of claim. The solicitor did not follow up with counsel and did not take steps to progress the client’s matter for approximately four years. By this time the proceedings were commenced out of time. The file was transferred to another firm, however ultimately the client failed in the proceedings and sued his former solicitors.
A review of the circumstances showed the employed solicitor had an extremely heavy workload and was suffering from high levels of stress, all of which went undetected by the law practice.
Putting systems in place
Implementing sound practice and risk management systems will help identify issues before they develop into disciplinary actions or professional negligence claims (or both). An inactive file, unanswered messages, complaints from clients or a lack of communication between key parties are some of the warning signs that all is not well.
Detect problems and stop them from escalating by:
- becoming familiar with all matters for which you are the responsible solicitor;
- using a shared diary system for recording and monitoring critical dates;
- regularly monitoring employee workloads to ensure they are manageable;
- conducting regular file reviews – this will help identify inactive files and monitor critical dates;
- establishing contingency plans – what will happen if something unexpected occurs and you or another solicitor are unable to communicate or check on urgent matters?
This article originally appeared on lsj.com.au