My solicitor is doing a terrible job…I want to instruct you!

Insight

Published

09 May 2022

You have just met with a potential new client. They currently instruct another firm of solicitors, but are concerned the solicitor involved is “doing a terrible job”. They have heard you are “the best” and want to transfer instructions to you.

Sound familiar? Sometimes there are very good reasons for a client wanting to change solicitors. It might be that they are genuinely experiencing a poor service from their current solicitor or have lost confidence in the advice they are receiving. It could simply be a personality clash that makes the working relationship difficult. But sometimes it is because the client is receiving advice they don’t want to hear, are engaged in a fee dispute or have unrealistic expectations and are difficult to please.

While your first impression might be that the client has had a rough deal and you want to help them out, we always encourage caution in this scenario. Ensure you ask the right questions, carefully explain what would be involved…...and don’t be overtaken by flattery.

We have seen notifications to PII insurers arise in circumstances where the firm has been the second or third in line. Based on our experience, we offer the following checklist of issues you might want to consider when you are asked to take a matter over from another firm.

Establish why the client wants to move

Always ask why the client wants to move. If the answers you receive are vague or evasive, keep drilling. Getting to the bottom of this will help to inform your decision about accepting instructions.

Has the client received advice that they cannot expect the outcome they were hoping for? Sometimes disappointment will prompt a client to shop around for a result that is unachievable. If your advice is ultimately the same, then you could quickly become the solicitor who is “doing a terrible job”.

If the dissatisfaction is due to service standards, carefully consider whether it seems there were shortcomings in the service the client has received, or whether their expectations are too high. In the latter case, always consider whether you will be able to meet those expectations.

Is there a fee dispute? If so, what is the background to this? The client might have been genuinely overcharged or it might be that their expectations regarding costs are unrealistic. Is there a risk that this will continue to be an issue if you accept instructions?

Beware of flattery

Don’t let a potential client waxing lyrical about your reputation and how highly recommended you are cloud your judgment. While it is always encouraging to know that your reputation and expertise has been endorsed, it will be cold comfort if you fail to meet unrealistic expectations and become the new subject of complaint.

Beware of taking on a matter if a limitation date or other deadline is imminent.

Don’t let someone else’s procrastination become your emergency and a potential claim against your PII. If limitation or any other deadline is close then you need to seriously consider whether you will be able to meet the deadline or achieve an extension or standstill agreement (in the case of litigation).

Warn the client that there will inevitably be an element of duplication

It is important that a prospective client is left in no doubt regarding the potential for duplication of costs if your firm is to accept instructions midway through a transaction or matter. They need to understand that you will have to charge for your time reading into the file and reviewing strategy.

Ensure you have the time and relevant expertise to take the matter on.

Don’t let the prospective client’s enthusiasm to instruct you, and insistence that you are the right person for the job, get in the way of considering this issue. Always remember clause 3.2 of the Code of Conduct for Solicitors which requires “that the service you provide to clients is competent and delivered in a timely manner”.

Establish whether there are likely to be any issues regarding receipt of the file

On this point we recommend a very frank discussion with the prospective client regarding the fee position with their current solicitor. Find out if they have been invoiced yet and whether they have paid, or intend to do so.

If there is going to be a protracted dispute regarding fees, this could compromise the timeframe within which you receive the file. It could also potentially involve a considerable amount of your time pressing for the release of the client’s own documents that they are entitled to receive notwithstanding any lien that is claimed by the former solicitor.

There is also additional risk if you are left cobbling together a file from the client’s own documents and other copy documents they might have in order to progress a matter. You could be missing an important document that is critical to the advice you are giving.

We are also seeing an increase in ransomware attacks on law firms. If this is the background to the proposed instruction of your firm and the file is unavailable for this reason, you likewise need to warn the client of the difficulties and potential additional costs. For example, in a conveyancing matter missing search documents will need to be requested again and costs duplicated as a result. 

Check you receive the complete file.

If and when you do receive the former solicitor’s file, check it is complete and that you have all the relevant documents.

Read the file

This might sound like a very basic point, but if the file arrives amidst a busy time there is a risk that a quick scan of the contents will result in you missing a critical document or piece of information. Beware of gaps or differences in the information recorded on the file and information the client is now giving you. Where you see that, ensure you question it as there is a risk that the information could be changing to enhance the potential for a desired outcome.

Review the strategy

Don’t assume the strategy of the former solicitor is correct. You will have the advantage of at least some element of hindsight. If the strategy is wrong, you need to be having an early conversation with the client regarding the next steps.

Double check limitation dates and any other time limits or deadlines

This is a particularly important issue. Dates might have been miscalculated or recorded incorrectly on the file. Action, such as the filing of proceedings or service of documents, might have been undertaken just outside the relevant deadline and the other side have not picked up on it yet – we have seen this happen. While you are not the one who has missed the deadline date in this scenario, you need to identify and act on the issue or you risk being liable for loss arising as a result of your failure to do so.

Talk it through within your firm

It is usually part of a solicitor’s DNA to want to be helpful, but it can be difficult to know how to proceed given the risks involved in being the second or third firm of solicitors on a matter. There might also be a lingering concern of a potential claim by a prospective client that there has been an unreasonable refusal to accept instructions, which could attract the attention of the SRA. For more information on refusing to accept instructions we recommend a review of the Law Society commentary available here.

In an effort to ensure that the best decisions are made in these circumstances, we suggest that firms have a policy in place that requires some form of review and discussion before instructions are accepted from any prospective clients who are looking to change firms during the course of a matter. Careful consideration and discussion of issues such as those highlighted above will go a long way to achieving clarity and assisting the firm to make the best decision about how to proceed.

Jenny Screech

Consultant, Solicitors 

Jenny Screech