Tuesday, 7 February 2012

Law - a science and an art

The case of Padden v Bevan Ashford is currently attracting a lot of interest and comment where the Court of Appeal has recently overruled the trial judge’s decision to throw out a negligence claim against the South-West law firm on the basis that it would have imposed an “wholly unreasonable standard of care” on solicitors giving free advice.

Unfortunately it’s a common situation.  The client had quite a complicated legal problem involving valuable property rights and fraud but wanted free advice in a hurry.  Initially at least, she was seen by a very junior member of the firm who spent about fifteen minutes giving the wrong advice.  That client now says she lost thousands of pounds which she seeks to recover by a professional negligence claim.

I sympathise with Bevan Ashford. Most legal advisers will have been in this situation, many more than once.  I know I have.  There is a desire to help but a limit always on how much you can do for nothing.  Frankly, the only sensible thing to do if it’s at all complicated is to say “no”.

But it’s all too easy to succumb to that pressure from the desperate client to imagine it’s as quick and simple as they insist.

As one commentator observed last week, the problems of oversimplification are exacerbated by the advent of alternative business structures and the increasing tendency to commoditise law.

Many think it is just a science and you only need push a button to get the right answer.  There are some aspects which lend themselves to this sort of process but not as many as liability insurers and others insist.

Judith Gordon, a former in-house lawyer at a major utility and now the director of Professional Business Structures in Shropshire, captured the points succinctly;

“Law is both a science, in the sense that it needs knowledge, and an art, in that it requires insight into human nature, experience of dealing with similar problems and, sometimes, inspiration in order to get it right.  I believe that only solicitors can bring this mix of skills to these delicate situations and we need to educate the public more about the true nature of what we do”.

I agree.