A lawyer's customer is always right – even when they're wrong

Our Society routinely hears from practitioners who are demoralised by the regulatory system. Many lawyers perceive it to be handicapped by an imbalance, and that they will find themselves categorised as economically stronger service providers pitted against vulnerable and hapless consumers. No matter that the former may well be stressed and underfunded whilst dealing with and seeking to placate disgruntled and challenging individuals. Clients can be malicious or even malevolent; the client who complained about me had convictions for violence and stalking and told me that he hoped that his opponent’s solicitor died of breast or cervical cancer.

Also, the regulatory system must recognise that clients are not always the best judges of their own best interests. Obviously, some service issues, such as failing to return seven phone calls made over two weeks, are legitimate subjects for scrutiny. Where there is far more of a problem is in the exercise of professional judgement.

It is not in the public interest if the regulatory system instils in lawyers a feeling and fear that it will throw them to the wolves ex post facto a bad outcome, regardless of how they have exercised that judgment in good faith and with reasonable care and competence.

Court practitioners will recognise the scenario where a client wants to;

1. Call a witness likely to be a loose cannon at worst or who at best will contribute worthless evidence, causing the case to spill into another day thereby generating expense and delay.
2. Have his lawyer ask a daft question during cross examination. This kind of folly is especially irksome.
3. Give evidence himself despite his own lawyer’s assessment that the court will probably determine that he is a purveyor of hogwash, a flagrant liar or as guilty as sin. Explaining such concerns requires no small measure of tact.
4. Lodge a document which has all the hallmarks of having been concocted last week despite bearing to be dated a year ago.

Solicitors must follow instructions, of course, whereas clients need not follow advice, but let us assume that the client is dissuaded by the solicitor from following these foolish courses of action. If the case proceeds and the client loses he will almost inevitably seek a scapegoat, and the obvious candidate is the lawyer. In a service complaint about bad advice there will then be a post mortem in which a case handler from the Scottish Legal Complaints Commission will speculate on the hypothetical result had the witness been called, the question asked, the evidence been given or the document lodged.

The solicitor has a really easy way to avoid this disagreeable predicament; proceed on the basis that the client, or customer, is always right, play it safe, diminish the dissuasion but keep a record of it, and then proceed on instructions to call the witness, ask the question, put the client in the witness box or lodge the document. Is that really what we want?

Andrew Stevenson is Secretary, Scottish Law Agents Society