A regular attender at the courts will quickly realize that lawyers, who are themselves constitutionally incapable of answering any question with a straight Yes or No, are always demanding of laymen that they should do so.
Richard du Cann - The Art of the Advocate (1964)
I attended a course this week on compliance with the regulation of law firms, where I learnt, amongst other things that all firms are solicitors are now obliged to a link to the Solicitors's Code of Conduct on their websites. The Code of Conduct sets out in some detail the responsibilities and obligations of every solicitor in England and Wales.
For the record, LloydLaw LLP is a partnership constituted under the laws of England and regulated by the Solicitors Regulation Authority. A copy of the Solicitors' Code of Conduct 2007, which sets out the rules of professional conduct which apply to solicitors, is available on the Solicitors Regulation Authority's website, http://www.sra.org.uk/. All the partners of LloydLaw LLP are solicitors, qualified in England and Wales.
The Guardian ran a story on its Capital Letters Consumer Rights page at the weekend about solicitors messing up in trying to recover a debt and landing a wholly innocent party - in this case a small landscaping business - with the consequences.
As appalling and frustrating as this must have been for the landscaping company, I actually disagree with the advice that the landscaper should consider taking out a small claim for damages in negligence. Not because I want to protect the solicitors, for whom I have no sympathy, but as much because I tend to think most businesses - and all small businesses -are far better off getting on with the running of their businesses which will make them more money than they'll ever recover from a court.
I call this the "head and heart" principle. Your heart knows that you've been badly messed around and that you've got a decent claim for damages because you are wholly innocent. Plus there's a small part of you that thinks they need to accept the consequences for their incompetence.
But your heads knows that it will take up a lot of time, and as a consequence a lot of money. It's not just the court process itself, nor even the cost of instructing your own solicitors, although you can do it on your own. The fact is that litigation of any sort is aggravating and more importantly distracting. Any thought you have about the dispute is a backward one that takes you away from what you should really be doing which is taking your business forwards.
In this case, the landscaping business had some supplies cut off but that is part of the day to day aggravation in doing business in a world that is administratively challenged.
What businesses should be doing is monitoring these potential problems on a day to day basis and working to minimise the risks of potential cowpats. That means monitoring all correspondence closely, keeping an eye on odd phone messages (eg "just checking your precise address") and making sure you are constantly in touch with any post coming into your registered office address.
The real point about this story is this sort of problem is on the increase and the best form of attack is brilliant and organised defence. If it's any consolation to that landscaper we recently got a claim for £2,780 from Teignbridge District Council in South Devon for unpaid council tax. Except that we don't even know where Teignbridge is, let alone have any property there. Of course, it was all a case of "mistaken identity" following on from the increasingly unbiquitous "trace enquiry". As I say, it's this sort of administrative incompetence that isn't going away.
We don't yet offer "value based fees" on a consistent basis although it something we are considering. Value based fees reflect charging clients for what the work might actually be worth to the client, as opposed to the time it takes to do something, as most lawyers habitually do.
Top US consultant Alan Weiss has posted his own lawyer's memo offering his clients fixed charges. While Alan notes that isn't precisely "value based" it does mark a move in that direction, which as he says, is "ahead of the curve".
My own experience of trying to charge on a fixed price basis is that we, as the lawyers erring on the side of caution, tend to lose out. That isn't necessarily a bad thing especially for our clients, but it does mean that it needs fairly careful attention and to be kept constantly under review. Of course, if you were a client, you'd much rather that situation, than having the idea of the clock constantly driving costs upwards for every email read and phone call made. That said, all lawyers charges are matters of judgement, rather than simple mathematical calculations, and there should be a very strong element of "value" even in time based billing.
This year is going to see a great deal of change in the legal profession. It's not going to be extreme or drastic but the economic climate will have an impact as much on us as everyone else. Not that I'm all doom and gloom because to some extent, the changes being forced upon us are inevitable, but it's going to hurt.
What we've got now is a situation where there are loads of professionals sitting around with not enough work to do. Imagine you are a conveyancing solicitor in London. Do you think they are going to be busy? Almost certainly not. But if you do employment, litigation, or rather more obviously, insolvency, then you are currently manically busy and supporting the rest of the firm.
What this actually means in reality is unclear. The Law Society Gazette (the Law Society's official weekly publication) reported back in December 2008 that some 1,250 firms were in "financial intensive care" with their banks. There's no definition of what that actually means, but the inference is clear. Law firms are not all cash rich and some will start to go under.
Even the President of the Law Society recognises that there will be change. "My instinct tells me, after the current recession, the legal landscape witll look very different. The profession must now anticipate quite how different it might look to ensure there there is a properly remunerated independent legal profession to protect the rule of law on the other side."
What all this means for clients is unclear, but my strong sense is that it will push forward the move towards commoditisation which Richard Susskind has been talking about for a few years because even the heavyweight commercial clients will be looking to cut costs. And it will force lawyers to reinvent themselves, if they haven't done so already. Very few of my contemporaries are doing what they started out doing 20 years ago and that rate of change will accelerate. This firm will have to adapt as well, and I intend to look at ways we will be doing that in the next few weeks.
The Office of Fair Trading has just published a free guide on how to comply with increasingly complex competition and consumer laws. Aimed at smaller businesses, the 32 page PDF document which is relatively clear and well presented deals with areas like online selling, offering credit and what to do if you think your business has been subjected to anti-competitive practices.
Just over two years ago I posted about Commissioners for Oaths, who they were, what they did, and offered to provide the service myself. In part it was a test, to see what Google would do with it. Well, it's been so successful that somewhat reluctantly, I've decided that I can no longer offer the service. I say "reluctantly" because it's become apparent that it's incredibly hard for people to work out how to get documents sworn or affirmed. Recently, I had a phone call from a very charming elderly lady who desperately needed to get a document sworn. She told me her own solicitors (Fisher Meredith) based in Stockwell had advised her to go to the local County Court where the service is free, but that when she had gone in, they had refused to help her.
She was therefore prepared to make the effort to travel a fair distance to see me simply to get this relatively straightforward adminstrative task performed.
Shortly after that, another lady contacted me to get a document sworn - at the statutory fee of £5. I hesitated, but she seemed to be clear about what she wanted and I agreed to see her. When she came in, she told me that she had been quoted £60 by other solicitors to carry out the service - which should only take a few minutes. And of course, there's the rub. What should only take a few minutes often takes a great deal more than that, and it has got to the point that I have realised it is far more trouble than it is worth.
Whilst I understand why certain documentation require formal swearing or declaration, I think the burden should fall on the larger firms who are best placed to provide the service and not on the smaller firms who are already over-burdened. I accept that most of these firms are outside residential areas, but I don't see why they shouldn't be obliged to offer the service between certain times on certain days to members of the public. Given my own experience, it's clear they could easily use their own websites to both promote and manage the service and if my experience is anything to go by, the public would undoubedly benefit. It would also give some of the younger lawyers a chance to meet real people, often with real problems which are a far cry from the day to day work of the average commercial lawyer.
The recent ECJ (European Court of Justice) ruling requiring any business website which deals with consumers to provide a means of contact in addition to their postal and email addresses has caused a fair degree of consternation. It's still not clear whether the UK will follow the ruling which appears to have given the generic "contact form" a status above and beyond the poor man's email address.
The ECJ ruled that businesses dealing with consumers needed to provide either a telephone number or a contact form (described as an "electronic enquiry template") giving consumers the opportuntity to contact them rapidly in what the court described in a "direct and effective manner" before any contract was formed.
The case was about a German car insurance company, known as DIV, that offered its services exclusively on the internet. On its website DIV provided an email address but no phone number. The body representing German consumers took legal action on the basis DIV had an obligation to mention its telephone number to give consumers a chance to talk to DIV before they entered into any agreement.
On the face of it, that makes sense because we all know as consumers there are times when it is quicker and simpler to pick up the phone. On the other hand, it's obvious there's a cost impact of employing staff to answer those questions. I assume that DIV could probably offer more competitive rates than over insurance companies because it didn't trouble itself with answering the phone to its customers, who presumably could have gone to another insurance company if they had wanted to.
Be that as it may, the judgement is relatively clear and businesses operating in the consumer market in the UK are now on notice that they may be required to provide either a phone number or a contact form which must be responded to promptly if they are going to enter into contracts with consumers.
There's a helpful,detailed note on Out-Law.com about the impact of the decision on UK businesses with a post script noting that BERR (The Department for Business Enterprise and Regulatory Reform) was still considering the impact of the decision for UK businesses operating in the e-commerce sphere.