This article appeared in the Solicitors Journal for 13th June and is reproduced with kind permission.
The publication, by the Law Society, of a recent practice note on unbundling legal services raises interesting questions for firms and clients who might wish to avail themselves of the opportunity.
Very late in the day, the Society’s reactive guidance on the unbundling of legal services is playing catch-up to a practice which has in reality been going on for many years. Law firms have been unbundling commercial services for sophisticated commercial clients for many decades, particularly those with in-house legal departments that have long been accustomed to instruct external law firms on an a la carte basis.
One example lies in the property sphere. As pricing pressures have increased, conveyancers have for many years been insidiously reducing the level of service to their clients, providing checklists for client self-help in various tangential areas of house-moving for which previous generations of lawyers provided a full-on hand-holding service. In litigation matters, the McKenzie case provided more than forty years ago for litigants in person to enlist assistance in court proceedings. The presence of litigation friends is no less evident in the current times, many decades later.
For many years, cost conscious clients have been undertaking some of the administrative heavy-lifting in their legal matters. Indeed, solicitors have in all sorts of matters – from litigation to transactional work to probate administration – been telling their clients that “the more you can do as the client, the less we have to do as your lawyers and the less we will charge”. That much will be recognised as familiar guidance by solicitors across the country.
The new Law Society guidance rightly highlights the care which has to be taken in defining the scope of a reduced retainer and that the duty still exists to act in the best interests of the client. The note also makes a passing but important reference to the possibility of allegations of professional negligence arising from insufficient knowledge of the client’s situation.
This seems to me to be one of the trickiest areas. If the client does some or all of the heavy-lifting, whether that includes the collecting of witness statements, or the scheduling of documents and assets, it does not seem wise for the solicitor merely to file such documents without checking them.
Take wills and probate as one example. If, for example, in a probate matter the son of the deceased provides an Excel spreadsheet listing all his father’s stocks and shares and their values at their date of death, it seems to me that the probate solicitor ought at least to check the arithmetic and probably the share prices as well. Where a client has created their own will from an online will-writing form, it seems highly dangerous for the solicitor to ignore the testator’s both general and personal circumstances.
The same is true in the area of property law. Take one common example; even the drafting of a tenancy agreement for the client’s buy-to-let house, or the licensing of a car parking space can be fraught with difficulties if the client is unsophisticated or vulnerable.
It seems to me that law firms offering unbundled services need to prepare well. There are two important principles. First, unbundling should not happen on an ad hoc or unstructured basis. The Law Society guidance, though far from novel, is nevertheless a helpful summary of the formal steps that need to be taken, including the scoping of the engagement letter and the provision of self-help or information guides that clearly set out who is going to do what. These need to be carefully worded and checked for accuracy.
Second, solicitors should never lose sight of their enshrined duty to act fearlessly and independently in the best interests of their clients, and should never abrogate those responsibilities by cutting corners or reducing their services to a cursory or perfunctory level, even in a case where they are acting on a defined and restricted a la carte basis. The risks of doing so – and their potential consequences – should be self-evident, and are equally avoidable.