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Going the extra mile

The legal advisor’s impulse to say yes to a client is natural, and strong.  Mr Hobson’s unorthodox style of client relationship management would (thankfully) be unlikely to fly in today’s (or tomorrow’s) market.[1]

Yes.  The willingness to anticipate, understand and agree to meet a client’s needs are often perceived as important elements swaying a client’s view as to which advisors do – and do not – step up to the mark.  This perception, together with other eminently understandable influences, may occasionally result in an advisor not opting for a seemingly unappetising alternative response (such as turning an instruction down).  In making this choice, the advisor will very probably genuinely believe that, in so far as a given piece of work involves operating outside a comfort zone – whether as regards the area(s) of expertise, resources required or time lines – it will be a manageable stretch, amounting to no more or less than an example of going the extra mile for the client. 

In determining the scope and extent of the duty of care owed by a legal firm, the court has applied the objective standard of what a reasonably competent solicitor would do having regard to the standards normally adopted in his profession, not that of a particularly meticulous and conscientious practitioner.[2]   In the Hicks case, the court found that the firm had held itself out as having the required expertise in the relevant areas of law, so that the applicable standard was a reasonably competent solicitor with experience in the fields of commercial litigation and insolvency, including the conduct of complex appeals.[3]  In the course of its judgment (reaching a partial finding of liability, but finding against the claimant on causation), the court recognised the many excellent qualities of the junior lawyer who, being young and still relatively inexperienced, had unsurprisingly felt overwhelmed at times when dealing with the clients,[4] before applying the objective standard referred to above.

The court has reaffirmed this objective test in several recent instances.[5]  In the Fryatt case, the court credited the lawyer for accepting he had not recognised the significance of the difference between options to purchase land and share capital, before proceeding to apply the objective standard of reasonable skill and care (and then, as with Hicks, dismissing the claim on causation).  In making its assessment on liability, the court held that, in addition to not appreciating the significance of taking an option over shares (rather than over the land), the lawyer had failed to appreciate that the transaction had become one in which he did not have the requisite experience to continue to act without being more explicit to Mr Fryatt as to his lack of experience.[6] While acknowledging that the lawyer had flagged his level of experience to the client, the court concluded that the client hadn’t been provided with sufficient information to reach a properly informed view on the question as to whether to instruct more specialist solicitors.[7]

There may, it’s true, be no traffic jams along the extra mile:[8] Mr Hobson will likely be a distant speck in the rear view mirror.  For all that, the road less travelled isn’t risk free and may challenge the best intentioned of advisors.



[1]Mr Hobson, whose name is linked to the expression Hobson’s Choice, owned a livery stable and reputedly hired his horses out on strict rotation, so that the only choice offered to each customer was to accept the horse nearest the stable door, irrespective of whether the horse was fit or not.

[2] Henderson J, in Hicks v A Firm [2007] EWHC 940, para 138 (1 and 2)

[3]Ibid, para 138 (3)

[4]Ibid, para 147

[5]Balogun v A Firm [2015] EWHC 275 (QB) and Fryatt v A Firm [2015] EWHC 1683 (Ch)

[6]Ibid, para 101

[7]Ibid,para 103

[8]Attributed to Roger Staubach

Contact

For further information please contact Sheona Wood, Partner, on +44 (0)20 7280 8804 or at sheona.wood@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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