Wasted cost risks for ‘consultant’ advocates

A footnote, perhaps, in the ongoing debate about the boundaries between regulated advocates and litigators and the Others arises from a case drawn to my attention by Jamie Anderson (THANK YOU!). In the employment tribunal a judge makes a wasted costs award against a consultant (actually a struck-off solicitor) who failed to correct the impression of his client that he was representing her as her solicitor. The judge is concerned, I think, by the way in which his role as legal advisor might imply he is a solicitor, but also – most specifically – by the client indicating by email that she thinks he is a solicitor and him not correcting her.

He is apparently regulated by the Claims Management regulator. For me the question posed should also be, should there be an obligation on struck-off solicitors to advise their clients (and employers) that they were struck off? Whilst I do not doubt that striking off is a significant detriment, being able to then set up as an employment law consultant, take money on account of costs, and use a ‘I will charge you in the way most economically beneficial to me way’ fee agreement (as this consultant did), poses significant risks to consumers. It’ll be interesting to see if/how the Claims Management regulator acts and – indeed – if they knew this man had been struck off.

Whilst I do not doubt that striking off is a significant detriment, it is not such a serious punishment if one can set up in an unregulated, or de-regulated sphere of practice. Being able to then set up as an employment law consultant, take money on account of costs, and use a ‘I will charge you in the way most economically beneficial to me way’ fee agreement (as this consultant did), pose significant risks to consumers. It’ll be interesting to see if/how the Claims Management regulator acts and – indeed – if they knew this man had been struck off.

Here’s a key passage from the case:

30 The question for me is essentially whether Mr Oliver has acted either by omission or otherwise in such a way as is unreasonable, or improper within the language of rule 80(1)(a).

31 In my judgment the facts in this case sadly disclose that the unreasonable action threshold has been crossed. I say that for a number of reasons as follows.

32 The entering into a retainer for potentially incurring a large legal bill, in whatever form, is a matter not to be entered into lightly by lay and private individuals. In order to do so it is reasonable for them to have basic information and for that information to be comprehensible to lay parties.

33 I accepted Mrs Gooding’s evidence that she did not in fact know that Mr Oliver was not a solicitor on the roll, nor indeed insured and regulated as such, until it became apparent during the course of the hearing in August last year because I had identified that. He told me that he always identifies himself as a consultant on attendance sheets at the Tribunal, which is entirely proper: in doing so he informs both the Tribunal and the ushers that he attends and represents not in the capacity of either counsel or solicitor.

34 The subtlety of that information is not navigable to a lay client unless it is explicitly communicated. The use of the trade name “Robin Oliver Legal” and the use of e-mail and text communication with a letterhead that repeats simply that trade name and regulation by the Claims Management Regulator, is not such as to convey to a lay client that there is a difference between the individual advisor’s capacity and that of a solicitor. That is the starting point in this case.

35 The matter is then made worse by the exchanges about the retainer and that the draft retainer letter itself contains no description of the capacity in which Mr Oliver would appear as advocate or otherwise during the course of the proceedings. In this particular case a final retainer was not signed or sent, and the terms as to fees being incurred were only those set out in the e-mail.

36 Mrs Gooding confirmed her willingness to proceed on the terms as she had understood them. Implicit in those terms as she understood them, and as a result of the failure to make it clear that Mr Oliver did not act as a solicitor, was his capacity as her solicitor.

37 That was despite the e-mail signature deployed by Mr Oliver, or rather because of it, containing no appropriate information as to his capacity. Her genuine belief is evidenced by her question to him on 30 January which could not have been clearer, “In your capacity as my solicitor are you able to request them?” in reference to documents. The reply to that e-mail was woefully silent as to the capacity in which Mr Oliver acted and he failed to advise the claimant in reply that he did not and could not act as her solicitor.

38 I also take into account that the claimant’s circumstances included the wish to assert constructive dismissal, which often involves complex facts, and it is not a matter which lay people undertake with potential considerable cost, lightly. It was an unreasonable omission in my judgment for Mr Oliver not to make Mrs Gooding aware that he acted and practiced not in the capacity as a solicitor, nor regulated by the Solicitors Regulations Authority in these circumstances. I am satisfied that the omission on February 2 2016 was a cause of the claimant incurring costs going forward.

Advertisements

About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
This entry was posted in Uncategorized. Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s