Duty of care
A lawyer is expected to achieve the standard of ‘the reasonably competent lawyer’. It is not an absolute obligation, but one whereby a lawyer is assessed against what a reasonably competent lawyer would do having regard to the circumstances. Broadly speaking, negligence will only be established where a lawyer has made an error which no reasonable lawyer would have made in the same circumstances.
How will a lawyer be judged in the post-COVID world?
Since March 2020, the events in the UK (and indeed globally) have been unprecedented, have affected all aspects of business and personal life, and continue to evolve. However, the standards expected of a lawyer are in many ways unchanged: cases of professional negligence will continue to turn on the facts, by reference to the scope of the retainer and the tasks performed, as well as the experience of the lawyer(s) performing that work. The pandemic is unlikely to be a valid excuse for providing a lesser service than that previously delivered.
What should a client expect?
- Experience - many legal firms have adapted very well to the challenges of remote working, new regulatory and court procedures. Others have faced, and continue to face, far bigger challenges in adapting their business model to a COVID world. For some, areas of practice which may previously have been flourishing have all but dried up; lawyers have been laid off, while others have seen increases in the demand for their services and have been ‘branching out’ into previously unchartered territories. A client should expect a lawyer to decline an instruction where not within the lawyer(s)/ firms’ expertise and/or practically capable of being performed.
- Knowledge - The UK and world response to COVID has shown that things can change very quickly in all aspects of ‘normal’ life. This includes the UK’s response both in terms of legislation and the practical procedural aspects when faced with challenges such as remote litigation. Clearly a lawyer needs to keep up to date with developments in their practice area and be aware that COVID may not necessarily provide an excuse if court deadlines are missed because of remote working difficulties.
- Flexibility – COVID has undoubtedly taught us that those with the best chance of survival in the business world are those that are flexible. This extends to the lawyer/client relationship, and to both new and existing clients. Clients are right to expect that their lawyer is prepared to recognise a shift in the scope and delivery of their retainer and adapt accordingly. Instructions, and any changes to the delivery of agreed scope of work should be documented clearly.
- Communication – is as ever key. A client should expect clear and uncompromising communication which addresses adequately the scope and purpose of the retainer and the risks that may be involved. A client should always be adequately informed about the good and the bad.
The SRA has recognised that law firms and solicitors face uncertainty and difficult business conditions and have noted that these are exceptional circumstances where support must be given to the profession while continuing to protect those who engage legal services.
It continues to publish guidance to help solicitors and law firms adapt to the challenges that continue to be faced while providing the legal service that clients expect. While there may have been some sympathy from the courts to the reaction of the legal profession in the early days of the pandemic (where changes were stark, unprecedented quickly implemented) it is unlikely that this will be much of a defence as the “new normal” continues.
Anecdotal evidence indicates that law firms and their lawyers have proven to have adapted quickly to a changed world and are communicating with clients efficiently and continuing to offer a high standard of service. Clients continue to expect a high standard of care and pandemic or no pandemic, our duty of care remains very much unchanged.