Inappropriate behaviour, vulnerable clients and the solicitor
The publication last month by the Solicitors Regulation Authority (SRA) of its guide “Providing services to people who are vulnerable”[i] (the SRA Guide) has, as is often the way, come at a very relevant moment. Earlier that month, the Solicitors Disciplinary Tribunal had heard the case of SRA v Andrew Lee[ii], a solicitor who had been accused of a number of inappropriate actions including making inappropriate comments and sending inappropriate texts and “WhatsApp” messages to a vulnerable female client.
The SDT fined Mr Lee, who was a solicitor employed by Liverpool firm Gregory Abrams Davidson, £5,000 for misconduct for sending inappropriate texts to a vulnerable client who was the victim of domestic abuse. In its judgment, the SDT gave some clear guidance on what it regarded as best practice for communications between solicitors and clients. The SDT stated that the case demonstrated:
“the need for solicitors to avoid any dealings with clients which were or could be viewed as inappropriate. Solicitors ought generally to avoid the use of bad language unless it was clearly necessary. Whilst good communication with clients might well include avoiding formal language, there was no need to adopt the sort of crude language used in this case. Solicitors should also beware of patronising clients by suggesting there was any need to “go down” to their level. Whilst many clients might benefit from being treated in a friendly and informal way others, including victims of domestic violence, might benefit more from being treated respectfully.”
The Lee case shows, if nothing else, how careful solicitors have to be in terms of what they say, to whom they say it and when it is said.
The SDT accepted that, whilst Mr Lee had “failed to be alert to the fact that a vulnerable client may not be able to object or complain if that client felt uncomfortable with the way the solicitor acted” that nevertheless Mr Lee “had not intended to be predatory in his communications” with the client. The SDT warned that “overfamiliarity, without clear records on the file to set out exactly what was going on and to explain the context, could very easily be construed as inappropriate or unprofessional behaviour.”
The allegation against Mr Lee was that he had acted contrary to Principles 4 and 6 of the SRA Principles 2011 and thereby failed to achieve Outcome O (1.1) and O (1.2) of the SRA Code of Conduct 2011 (the SRA Code). Principles 4 and 6 state, respectively, that a solicitor must “act in the best interests of each client” and “behave in a way that maintains the trust the public places in you and in the provision of legal services”. Outcomes O (1.1) and O (1.2) provide:
“O (1.1) – you treat your clients fairly;
O (1.2) – you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice”
How you achieve these aims is clearly an issue which requires care, careful forethought and a reading of the situation. The line between being supportive of a client and being overly familiar can in some cases be a fine one. However, there can be no doubt that crossing that line is unlikely to be acceptable in any circumstances. This is particularly the case when dealing with clients who could be described as “vulnerable”. Here, solicitors should be very careful not to misread signs and not to appear in any way to be exploiting that vulnerability – whether it be for their own ends or, as is probably the case in SRA v Lee, for the purposes of supporting the client. But what constitutes a vulnerable client?
Section 59 of the Safeguarding Vulnerable Groups Act 2006[iii] defines a vulnerable adult as someone who:
- is in residential accommodation,
- is in sheltered housing,
- receives domiciliary care,
- receives any form of health care,
- is detained in lawful custody,
- is by virtue of an order of a court under supervision by a person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000 (c. 43),
- receives a welfare service of a prescribed description,
- receives any service or participates in any activity provided specifically for persons who fall within subsection (9),
- receives payments either directly or via another person in pursuance of arrangements under section 57 of the Health and Social Care Act 2001 (c. 15), or
- requires assistance in the conduct of his own affairs.
Most solicitors would readily agree that those on this list are likely in the majority of cases to be regarded as vulnerable – as indeed would be many clients under the age of 18. But are these the only clients who should be deemed to be vulnerable?
The SRA Guide, however, takes the view that the definition is of necessity a wider one than the s59 definition. In the SRA Guide, the SRA state that solicitors should also consider personal characteristics such as having a low income or a low level of literacy and situational factors such as bereavement or a threat of deportation. To this can also be added, as the Lee case demonstrates, those who are victims of domestic violence.
The SRA Guide in fact contains a number of further characteristics and situations drawn from a Legal Services Consumer Panel document entitled “Recognising and responding to consumer vulnerability: a guide for legal services regulators”[iv] solicitors should take account of when determining whether someone is to be regarded as potentially vulnerable. These include:
- age – both very old and very young clients may feel intimidated by the circumstances in which they find themselves and are thus potentially vulnerable,
- inexperience – those who are not used to matters involving legal transactions or proceedings are likely to be at a disadvantage compared with those who are,
- low literacy – it is easy to assume that clients are able to understand that which is sent to them whereas many clients may not read well or find written communications intimidating,
- cultural barriers – someone who is unfamiliar with the customs, practices and even attitudes of the UK may find themselves disadvantaged when it comes to dealings with solicitors and the legal process
- English as a second language – those who are not fluent in English are unlikely to be as aware of nuances and inflections in speech and may not actually fully appreciate that which is being said,
- health problems – if a person is suffering from ill-health they may have difficulties concentrating on legal issues or may be prone to take an easy solution rather than further complicate their lives or tire themselves
- lack of Internet Access – with so much information being placed on the Internet as a first resort, and with the growing assumption that everyone will be aware of how to access information in that way, lack of Internet access has to be seen as a considerable disadvantage and solicitors should be careful not to assume that clients can be communicated with by email or sent references to web sites,
- lone parents/carers – both of these groups are capable of being vulnerable clients because many of them can feel isolated and deprived of the support mechanisms such as family units that others accept as normal,
- those in particular situations where they are made to feel vulnerable because of what has happened to them, for example victims of crime and accidents, those who have suffered a bereavement, those going through a relationship breakdown, those who have recently left care and those who have concerns about access to, or welfare of, children.
Indeed, it is probably fair to say that many people who come to solicitors for reasons that are possibly outside of their control (as opposed to those who chose to use a solicitor to act in the purchase of property, assist with business matters or prosecute a case on their behalf) should be regarded by the solicitor as having the potential for being a vulnerable client. This appears to be the view taken by the Legal Services Consumer Panel who add market features such as concerns about costs, access barriers and the gap between general (public) knowledge of the law and specialist (solicitor) knowledge.
How Should solicitors deal with vulnerable clients?
It is one thing to identify that a client might be vulnerable, but what does this mean in practice and how should a solicitor amend how he or she responds to those clients?
Having identified a client as potentially vulnerable, the solicitor should start by carrying out a sort of “audit” of the client so as to establish how they should interact with them. This might include:
- Ascertaining whether the client has any specific communication needs or preferences – for example, do explanations need to be simplified? Is verbal as opposed to written communication to be preferred? Should legal terms be avoided or explained in detail?
- Finding out whether there are particular sensitivities that the solicitor should try and avoid or should broach only with the utmost care and compassion – for example avoiding references to a particular event, being conscious of the trauma caused by a violent relationship or understanding how the client views a certain person or group of people.
- Accommodating any specific requirements the client may have so far as access to the legal service is concerned – for example mobility problems, hearing difficulties, language problems or cultural barriers,
- Ascertaining how and when the client wants to be communicated with – are letters to the home likely to cause problems with a partner or family member, does the client feel more comfortable using email, are text messages going to cause issues in the workplace?
- Finding out if there is a third party that the client would like communications and contact to go through – for example because the client does not understand the language or the nature of the proceedings or simply because the client will become anxious or depressed if contacted directly by the solicitor.
- Finding out if the client is subject to any undue pressure from those around them. This is likely to need to be done with the client alone and in an inconspicuous way. For example, if you think that an elderly vulnerable client is being bullied into a course of action by a relative or friend.
So far as this last point is concerned, a comment from the Law Society of Scotland’s document “Guidance related to Rule B1.5: Vulnerable Clients Guidance” [v] is worth taking note of. They state:
“influence, even powerful influence, is not necessarily undue influence. A client may attend to make a Will or grant a Power of Attorney only because someone has strongly influenced them that they ought to do so. Influence may be powerful but benign. Or it may be subtle, but undue. Influence to make a Will, but not as to who should benefit or who should be appointed executor, or to grant a Power of Attorney, but not as to whom to appoint, is unlikely to be undue. If however (in those examples) influence seeks to affect choice of beneficiaries, executor(s) or attorney(s), it is likely to be undue, particularly where the influencer or someone connected to the influencer so benefits, though the extent of realistic (or sensible) choice in the matter may also be relevant. The solicitor should use reasonable endeavours to ascertain such matters from the client.”
Their guidance goes on to state:
“A dominated client may deny or conceal undue influence. Where there is a possibility of vulnerability, the client should be seen alone except where the client reasonably prefers someone to give support, or to assist communication, in which case such third party should if at all possible be neutral in relation to the matter in hand. Undue influence can be exercised regardless of presence, though the effect may be greater if the influencer is present, or present elsewhere in the building, or is the initiator, or brings the client and then leaves.”
Next, the solicitor needs to look at the services it plans to offer and in particular whether the usual methods of delivery of those services are suitable for that particular client. This is especially the case where the client may have a disability or have impaired mobility when the solicitor must consider reasonable adjustments so as to enable the client to access services. That which is reasonable will depend upon all of the circumstances including the nature of the client’s disability, the solicitor’s ability to make the necessary adjustment and whether there are other means by which the service can be delivered.
The solicitor should ensure that staff and colleagues who may come into contact with the client are also aware of the client’s unique needs and thought should be given to training staff in issues such as disability awareness, mental capacity and recognising vulnerability.
Whether or not the solicitor needs to make a reasonable adjustment for the vulnerable client, he or she may need to give consideration to being flexible as to appointment times, location of appointments, needing to visit the client at their home, moving appointments at short notice if hospital visits or health issues arise and Making arrangements for others to be present at meetings – for example carers, translators or even medical staff.
More time may have to be allowed for appointments with vulnerable clients – not all of which may be able to be recovered by way of costs – especially if this is being done by way of reasonable adjustment. This may particularly be the case if clients have speech or hearing impediments or the meeting is being conducted through an interpreter. Letters and documents may need to be provided in either large print or braille for clients with sight impairment or on coloured backgrounds for clients who have dyslexia.
Note that where clients may have mental capacity issues the solicitor may need to give consideration to far more fundamental issues such as legal capacity to give instructions – a topic which is outside of the scope of this article.
The firm should also be aware of the needs of the Data Protection Act 1998 when processing and recording information about individuals but should also, at the same time, not be afraid to record that information if doing so will be in the interests of the client. As the Financial Conduct Authority said in its guide “Consumer Vulnerability”[vi]:
“The Data Protection Act (1998) requires that firms clearly explain to customers how their information will be used, stored and shared. This duty is strongest when the information might be confidential or sensitive. Customers should receive an explanation of how their data will be used, stored and shared, and they should give their permission for this. Having a written policy on personal information will help ensure a clear and consistent approach. That policy must then be communicated to staff who need to be trained to explain it to customers. This can also help frontline staff who may not know what to do with sensitive information. Frontline staff can be encouraged to raise concerns with line-managers, who should be appropriately trained to determine when information should be shared outside the organisation – for example, with members of an individual’s family, health professionals, or carers.”
Finally, whilst thought should always be given to making sure that the solicitor maintains a professional relationship with a client, this is particularly the case with vulnerable clients who may be in a position where they are looking for emotional as well as legal support and who may see a solicitor as someone who could potentially provide both. AS the SDT said in the SRA v Lee case, solicitors should “avoid any dealings with clients which were or could be viewed as inappropriate.”
To summarise, solicitors must be aware of those clients who are vulnerable and must make allowances in the ways in which they work to address that vulnerability.
In particular, they must:
- Assess whether the client is vulnerable – whether or not that vulnerability is obvious or not and whether or not the client would generally be regarded as a vulnerable person or is simply someone rendered temporarily vulnerable by circumstances
- Work out what the effects of that specific client’s vulnerabilities are on the way in which services need to be delivered
- Ensure that services are delivered in an appropriate manner
- Ensure that staff have been trained to recognise and respond to the needs of vulnerable consumers- and what to do when carers want to deal with a problem in place of the vulnerable individual
- Ensure that everyone within the firm is aware of the legal requirements such as the need to make reasonable adjustment
- Ensure that everyone within the firm is aware of the provisions of the Data Protection Act 1998 when processing and recording information about individuals, and are they able to comply with those requirements
- Make all of the firm’s websites and other consumer facing communications accessible
- Put in place some form a feedback mechanism so that the solicitor can check whether the needs of vulnerable consumers are being met
- Continue to review the process for the effectiveness of the delivery of the service to vulnerable clients.
Finally, all solicitors and their staff should be aware of the fact that their dealings with everyone – especially vulnerable clients – should always be professional and appropriate.