Ethics Hub
Scenario: You get a complaint from a longstanding professional client about a matter for which you did not send a client care letter
You have been instructed to prepare a costs budget by a longstanding barrister client, Mr Featherstone. Mr Featherstone sent you a short letter by email to this effect. You ask Mr Featherstone if he would like you to send him a letter of engagement for his files. He replies that there is no need. He says, “You’ve sent me that letter so many times before I could recite it off the top of my head!” He also says that he is prepared to proceed according to your “usual fee scale.”
From then on, all correspondence between you and Mr Featherstone relates solely to the costs budgeting process.
The matter concludes successfully, and you send your bill to Mr Featherstone. Upon receiving your bill, Mr Featherstone emails you to say that he is extremely surprised by the level of your fees for this matter. He says he had no idea it would be so high, and that he would have expected you to have advised him of this at the outset. He says that he intends to make a complaint about you to the Costs Lawyer Standards Board unless you reduce your fee.
What do you do?
- The Costs Lawyer Code of Conduct lists various matters that you must advise clients of in writing when instructions are first received (Principle 3.4). This includes an estimate of fees, and details of your charging structure. Our Guidance Note on Client Care Letters in the Costs Lawyer Handbook provides a list of information that should be provided to clients at the outset of matter, including fee information.
- In this scenario, although you may feel that you do not wish to annoy Mr Featherstone by sending him a client care letter and fee details when he has specifically stated that he doesn’t want them, it is mandatory to do so under the Code of Conduct, and good practice to do so. Advising Mr Featherstone of the likely fees at the outset means that you are complying with your obligations under the Code of Conduct. In the event of a later complaint, you will also be able to demonstrate what information you provided about fees.
- When working with a longstanding client that instructs you on several matters, you can put an umbrella agreement in place regarding engagement and fees. However, in this scenario, if you do not have an umbrella agreement in place with Mr Featherstone, then you are potentially in breach of the Code of Conduct.
- In this situation, we would expect to see you trying to put things right with Mr Featherstone, and ensure he knows how to complain if he decides to do so. We would also expect you to provide assurance that you will ensure there is a client care letter in place covering all matters in future.
- Our Policy statement on enforcement and sanctions sets out our approach to enforcement where there is a breach of the Code of Conduct, and the mitigating/aggravating factors that we will take into account. Formal enforcement action by us would be warranted if we became aware of additional client detriment (for example, through a complaint to the CLSB directly) or repeat breaches of a similar nature.
- The key thing is that you try to remedy the breach as best you can, to ensure Mr Featherstone isn’t left with a negative outcome when compared to the situation if a client care letter had been in place.
- Principle 1.1 – You must act honestly and with integrity, not only in your professional life but also in your private life where your behaviour might reasonably be considered to undermine your adherence to the core ethical principles of the profession.
- Principle 1.7 – You must not act in any way which is likely to diminish the trust the public places in you or in the profession of Costs Lawyers.
- Principle 2.5 – You must support the proper administration of justice by promoting the appropriate and cost-effective use of the resources of the court and the parties.
- Principle 3.1 – You must act at all times in the best interests of your client, except where this conflicts with your duty to act independently in the interests of the proper administration of justice or where otherwise permitted by law. You must act in the best interests of your client regardless of the consequences for your professional client or other intermediary. You must not permit a professional client, employer or any other person to limit your ability to fulfil this duty.
- Principle 3.4 – You must ensure that new clients are advised in writing when instructions are first received of:
- an estimate of fees / details of charging structure and where that estimate subsequently becomes inaccurate or that charging structure changes provide an updated estimate / notice of revised charges;
- the right to complain;
- how to complain i.e. the complaints handling procedure that applies to the services you will provide; and
- if applicable, the client’s right to refer their complaint to the Legal Ombudsman in certain circumstances.
- Principle 3.5 – You must identify and rectify any systemic issues that are causing, or are likely to cause, client complaints, taking steps to do so promptly upon discovery.
- Principle 3.7 – You must ensure that the information you provide to your client or prospective client is in a form that is tailored to their attributes, needs and circumstances.
- Principle 4.6 – You must ensure your client is able to make informed decisions about the work being undertaken on their behalf throughout the lifetime of a matter, including how it will be priced, the costs incurred and the likely overall cost of the matter (including any potential liability for the costs of other parties).
See our Guidance Notes on the following topics in the Costs Lawyer Handbook:
- Client care letters
- Complaints procedures