Ferme Le Bouche Wasn’t The Best Idea

| General

Ferme Le Bouche Wasn’t The Best Idea

The old school teacherly advice to their pupils is the French phrase, ferme le bouche or ‘shut your mouth’. However, a recent case highlighted a situation where keeping one’s mouth shut might not be the correct course of action.

What Happened In The Case?

A person had been promoted to the esteemed position of General Counsel and the company provided employment leased vehicles registered on a fleet insurance policy to its respective customers. The solicitor’s employer’s core business activity was approaching external parties to send enforcement notices related to

  • vehicle parking violations and
  • speed limit breaches.

The business was accused of proposing that a close relation was capable of conducting legal work and inextricably linked to this he had seemingly proceeded to decide to sign off on invoicing documents that were submitted to claim the respective fees.

Nothing To See Here, Right?

Thousands of transactions proceed without a hitch daily. Invoices are submitted and monies claimed. However, this case was slightly more unusual in respect of its circumstances. An external party decided against dealing with the invoicing issue. Due to the firm not having the required experienced staff available to carry out work on the client’s file the firm recommended the services of different services and signposted the client. The client appeared to have been grateful for the referral and instructed the solicitor to act. However, this is when the matter became interesting. The firm sent two invoices without naming the person who had conducted the work.

Around June 2019 instructions were withdrawn. An investigation was then launched finding evidence that the decision to instruct his friend’s solicitors firm and to propose that a relative act on the client’s behalf equated to a conflict of interest because the lawyer made the conscious decision not to communicate the connection to the party he was working for.

As a seeming direct consequence of his choice not to get involved it meant that sanctions were handed down in the form of enforceable monetary fines. The solicitor claimed that everything was above board, his ability to judge had been clouded, and asked the SRA to consider the following factors:

  • his personal and
  • health difficulties when the incident occurred
  • and claimed he was prioritizing dealing with cases efficiently, effectively, and quickly.

However, this could not possibly have been the case because the SRA disagreed wth this view finding that the solicitor had not disclosed his close personal link to the parties who received the respective funds. Instructing the services of relation in combination with the decision not to communicate with the company for an unreasonable period were sanctionable actions. The regulator also expressed the view that it considered the level of fees in the case to be excessive.

The SRA also had a field day over the behaviour of the lawyer. It reviewed the evidence and was critical of the pre-empted nature of the behaviour as evidence suggested the lawyer had taken steps to plan. There was also evidence that the decisions taken could damage the business.

Lessons Learned?

Lawyers need to be taking the following steps after this case:

  • conducting rigorous due diligence upon firms they recommend to clients ensuring they have the purported expertise
  • ensuring communication with clients to disclose the close personal connection between the lawyer and the referred party and
  • producing file notes to record the advice given when making referrals to cover their position if a future regulatory investigation occurs.

This will mitigate against the risk of future lawyers falling foul of fines and sanctions in similar future cases.

The Legists Content Team

ASSESSING FIRMS

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THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Legatics – YouGov – What’s behind Law’s Great Resignation - FINAL_YouGov_Legatics_Report_Master_p4.pdf (hubspotusercontent-na1.net)

[2] Hyde, John – One in four lawyers suffers daily stress – Law Society Gazette – 20th May 2022 - One in four lawyers suffers daily stress | News | Law Gazette

[3] Why Lawyers Are Stressed and 4 Stress Management Tips – The National Law Review - 21 May 2022 - 4 Stress Management Tips for Lawyers (natlawreview.com)

[4] Civil Litigation Brief – Update on Useful Links on Stress, Lawyers and Law – Tips For a Less Stressful Life and Practice – 3 April 2022 - UPDATE ON USEFUL LINKS ON STRESS, LAWYERS AND LAW: TIPS FOR A LESS STRESSFUL LIFE AND PRACTICE – Civil Litigation Brief

[5] Moshes, Y – How Layers Can Avoid Burnout and Debilitating Anxiety – 22 February 2018 – 14 July 2020 - (1) New Message! (mosheslaw.com)

[6] Jones, R – The Fresh Perspective on Overcoming Stress In The Legal Profession – 1st March 2018 – Business News Wales - A Fresh Perspective on Overcoming Stress In The Legal Profession (businessnewswales.com)

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