The ABC of Solicitor Negligence in India
Law is a respected profession and a career as a Solicitor can be a rewarding and intellectually challenging experience. If you are planning to become a solicitor, one of the things you need to look out for is making mistakes. The novelty and stress that comes with the initial few years of becoming a solicitor can become a breeding ground for simple mistakes. These simple mistakes bear a high cost in the legal world. As a Solicitor, you not only have a reputation to uphold but also a professional responsibility to your clients to do right by them. A breach of that promise can have dire consequences.
In this article, we will discuss everything you need to know about solicitor negligence, the liability that comes with it, and also how you can avoid it.
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What is Solicitor Negligence?
Solicitor Negligence refers to a solicitor failing to meet the professional standards required of them which results in their client suffering either damage or loss. In simple words, Solicitor Negligence is when your professional adviser is negligent and you lose out as a result. A Solicitor like any other professional has a duty of care to his/her clients. This means that it is expected that they take reasonable care and meet a reasonable standard as a Solicitor.
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Solicitor Negligence in India
Solicitor Negligence in India is covered under Section 5 of the Legal Practitioner’s (Fees) Act, 1925.
Section 5: Liability of Legal practitioner to be Sued.
No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Most Common Types of Solicitor Negligence
The following are some of the most common types of solicitor negligence that may apply to a variety of cases.
Providing Legal Advice that Results in a Loss
While a Solicitor’s advice is not a guarantee, he/she is still expected to take reasonable care and meet a reasonable standard as a Solicitor. So in situations where the solicitor’s legal advice falls below acceptable standards then the client has every right to sue. This usually happens when the Solicitor tries to advise the client on matters that fall outside their area of expertise.
Errors in Drafting Legal Documents
As a solicitor, it is essential that you ensure that all legal documents are drafted accurately. Failing to do so will give an opportunity to the client to hold you responsible for negligence.
Failure to Follow Instructions Given by the Client
As a solicitor, you have the duty to inform your clients about the options they have. It is ultimately their decision. Once they have decided, you must follow their instructions. A client can take action if you fail to do so.
Not Advising on All Funding Options
If you fail to inform your client about the legal aid options available to cover the representation and other legal expenses and the client spends more than the necessary amount, then they can sue you for negligence.
Mistakes by Solicitor Which Results in the Claim Being Struck Out
Mistakes like missing deadlines can cause the claim to be struck out by the court. In such cases, the client can hold you responsible for negligence.
Under-Settling on a Claim
If a settlement amount offered by the other party is too low and you wrongly advise your client to accept it then it would be considered negligent. Conversely, if you advise your client to reject a settlement offer which leads to the case going to trial and your client receives a lesser amount in court, it would again be treated as negligence.
Missing Limitation Deadlines
If your client comes to you with a case that has a strict deadline and you happen to miss it then it would be considered negligent.
How to Avoid Professional Negligence?
Maintain Proper Records
It is good practice to maintain a proper paper trail in terms of an agreement between you and your client. Also, make sure to have email records of everything in case you need to provide evidence to support your version of what happened. It is advisable to at least retain the documents of a client for a minimum of 6 years. As a lawyer, you can use legal document management software to store all the client documents securely on the cloud.
Do Not Step Outside Your Remit
Don’t agree to take on work that you have no experience of or say yes to unusual requests from your client. It may seem like a small favor to your client but may end up burning a hole in your pocket.
Keep Your Client Posted
Always keep your client looped in and keep appraising your client about recent developments of their case. Never keep them guessing or waiting for too long. Make sure to have email records of all communications that take place between you and the client including any conference telephonic conversation.
Say No to Unrealistic Projects
Professional negligence can be avoided if you know what you are capable of taking on. While it is okay to push yourself to a certain extent, it is not a good idea to take on unrealistic projects. Never push your limits beyond your physical capacity. It is okay to say no to impossibly big projects with an immediate deadline. Never rush through your tasks and turn in sloppy work to your client.
Manage Client Expectations
Sit down with your client and decide very clearly early on as to what you can and cannot do for them. Explain to them clearly about the way you do things and how things typically work. Take on projects only after they’ve agreed to the way you handle things. Make sure you have documentary evidence of this. It is important that your clients know what to expect so there are no disputes later on.
Professional indemnity insurance covers all legally established claims arising from the covered perils like error, omissions, professional neglect for both the principles and their employees. It provides protection for a business if a legal claim by an aggrieved client becomes successful.
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The way you handle yourself and the challenges that you face will determine the kind of lawyer you become. While nobody is perfect and everybody makes mistakes, it is how you handle them that comes to define you. Using the above strategies, you can hopefully take steps to avoid unnecessary errors.
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