Ideal length of retainer documents
Part of my work involves drafting conditional fee agreements for solicitors and advising them on their other retainer documents, such as client care letters. Another part of my work involves advising lay client as to the retainer documents that they have been sent by their solicitors. This dual role gives me the opportunity to see a number of solicitor documents currently in circulation.
What is the ideal length?
Among the key observations of the SRA concerning client care letters:
- Some client care letters are clearly drafted with the aim of simply complying with the SRA obligations, rather than to provide information to clients in a user-friendly way.
- Some are too lengthy with dense paragraphs and small font sizes, which makes finding key information difficult for clients.
- It is important that client care letters are easy to understand, including by those with low literacy levels, in a state of emotional distress or for whom English is a second language.
- The SRA checklist includes the question: “Is your letter concise?”.
One set of retainer documents I was recently sent to review, produced by a large personal injury firm, included a cover letter, a further letter explaining funding options, the firm’s Terms of Business, the conditional fee agreement, including its own further conditions, a privacy notice in relation to data protection issues and a guide to personal injury claims. Much of this was in small font and dense paragraphs. It ran to approximately 40 pages and 20,000 words.
What is the likelihood that the average client reads this, let alone understands it? What is the likelihood that the solicitors spent the necessary time to go through these 20,000 words with the client to ensure that the client properly understood what they had been sent?
Increasingly, the approach of the courts, to the extent to which there is a solicitor/own client costs dispute, is to give consideration as to whether or not there has been informed consent by the client as to what they are signing up to. So far as the courts accept that informed consent is relevant, what hope would the solicitors in this example have of persuading a court that such consent had been given, particularly when dealing with a less sophisticated client?
The CLSB guidance on client care letters contains the following advice:
“Some types of information are seen by clients as less relevant than others at the beginning of the legal process. These include terms and conditions of business, complaint information, data protection information and regulatory information. However, such information still needs to be provided upfront for a number of reasons. One important reason is that, in relation to clients who are lay individuals, the Consumer Rights Act 2015 creates a presumption that a contract term is unfair (and thus unenforceable) if it purports to bind a consumer to terms with which the consumer had no real opportunity of becoming acquainted before the contract was concluded.”
Is this presumption likely to apply to contractual terms hidden away in overly long retainer documents sent to unsophisticated clients?
The problem with much of the retainer documents that are sent to client is that they are much like the terms and conditions that appear when trying to install new software and where it is necessary to tick a box to confirm you have read and agree to the same. Everyone ticks the box, but we all know that the lengthy terms are never read.
Nowadays, large chunks of client care letters are made up of lengthy sections addressing, the largely pointless, General Data Protection Regulations (GDPR). Although it is mandatory that certain information is provided, it is questionable as to whether this actually needs to be contained within the client care letter itself (as opposed to, for example, a link to a web page).
A number of client care letters I have seen contain sections explaining how the firm in question is committed to promoting equality and diversity and will not discriminate on the grounds of race, gender, etc. The SRA does produce separate guidance in relation to equality and diversity that suggests that firms should “put in place a simple but comprehensive policy statement about EDI for your workforce, clients and the people you deal with. This is likely to include information about your commitment to the principles of EDI as well as setting out any legislative requirements”. It does not appear to be a requirement that such a policy statement is included within the client care letter itself. (Of course, this may be an example of the SRA facing both ways simultaneously. Firstly, it asks solicitors to ensure their client care letters are not too lengthy and do not focus on generic information, but simultaneously encourages them to include unnecessary box ticking information.)
It is clearly entirely appropriate that firms encourage equality and diversity and do not inappropriately discriminate. However, does providing a written statement along these lines really amount to anything more meaningful than the person who says: “I’m not racist, some of my best friends are black”? The proof of the pudding is in the eating, simply saying your firm does not, for example, discriminate on the grounds of disability does not make it so. Has a firm of solicitors ever secured a single extra client by having an equality and diversity section in their client care letter? Conversely, have they ever lost a client by omitting one?
There may be no specific answer as to the question as to how long retainer documents should ideally be, but I would suggest that the answer is almost certainly shorter than whatever you currently have.