In the second of a two-part article on effective client communication, Fiona du Feu looks at the different – and not always obvious – ways in which clients may be vulnerable, and how your firm can best support them
In the new Solicitor Regulation Authority (SRA) Code of Conduct for Solicitors, RELs and RFLs, the importance of clear client communication is plain:
“3.4 You consider and take account of your client’s attributes, needs and circumstances.”
“8.6 You give clients information in a way they can understand. You ensure they are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them.”
In the last edition of PS, I considered what good client communication looks like, and offered some tips on how you can apply it when communicating with vulnerable clients in particular.
Vulnerability is not about one factor: there is a whole spectrum of client vulnerability you must address and, preferably, document, bearing in mind the requirements in paragraph 7.2 of the new Code: “You are able to justify your decisions and actions in order to demonstrate compliance with your obligations under the SRA’s regulatory arrangements.”
The equivalent obligation for legal practices is at paragraph 2.2 of the SRA Code of Conduct for Firms. The trouble is, a client’s vulnerability is not always evident when you first meet them and may only become apparent gradually. In this article, I explain some of the factors that may make a client vulnerable, how you can spot them (if not immediately clear), and how you can tactfully ask the client if they need extra support. I also present a five-step action plan for approaching vulnerable clients, that your firm can follow.
Vulnerability risk factors
‘Vulnerability’ covers a wide spectrum of conditions, situations and circumstances that may mean the client is at increased risk of being unable to access or process key communications. Vulnerability is not just a physical ailment, or necessarily mental health-related: social, economic and personal factors can contribute, too. Vulnerability may be limited to a single isolated issue, but often will be a mix of factors. It may change over time.
Below, I list some risk factors for assessing vulnerability in clients and explore how those factors might be identified and acted upon.
Is your client:
- elderly or of very advanced age?
- deaf or do they have a hearing impairment?
- blind or visually impaired?
- physically impaired, preventing movement?
Such physical factors are normally apparent to some degree, so having an open and unembarrassed initial conversation, to find out how best to help the client, works well.
Undue influence and ability to speak openly
Clients may be vulnerable, by lacking independence, if they are:
- in prison, hospital, a hospice or care home
- detained under an order of the court
- in receipt of community care services or unable to take care of themselves
- communicating only or partly through a third-party helper or healthcare assistant
- a non-English speaker
- a couple, married or otherwise, and you are asked to communicate only or mainly with one of them.
Such clients may be unable to speak openly or feel inhibited from speaking openly. There may also be inadequate arrangements in place to ensure confidentiality and privacy. If communications take place wholly or mainly through a third party such as a family member, translator or carer, there may be difficulties in establishing or verifying those instructions directly and independently. Some vulnerable clients will wish to bring carers, friends or advocates to client meetings, for support and to make notes, for example. This presents a potential problem for confidentiality.
Take the opportunity as soon as you can to speak with the client independently (and privately, where possible). If this is impossible, ensure that a full note is made of the circumstances in which you met the client. You should explain carefully the potential issues, including the potential for their companion(s) to influence the client.
You will need to form your own view as to the client’s ability to instruct you, bearing in mind that you are looking for informed decision-making on their part. Try having a simple conversation to explain why you are there, and then asking if they have any worries or questions so far. Proceed to a fuller discussion, and ask further open questions to test the client’s understanding, such as “Can you tell me more about how / why you came to this decision?”. Finally, ask the client to summarise their instructions by reflecting back to you, using their own words.
One way to approach this is to ask: “To make sure we have covered everything, can you take me through what it is you want me to do and why?”. Notes should be made of the client’s wishes and your advice. Record any concerns you have.
You must decline to act if you have reason to suspect that the instructions do not represent your client’s wishes.
If the client’s instructions relate to the making of a substantial or disproportionate gift of assets or come from a third party who actively or implicitly discourages you from verifying those instructions, they might be given as a result of undue influence. The new Code of Conduct for Solicitors (paragraph 3.1) is clear that you must satisfy yourself that the instructions represent the client’s wishes. People often discuss their decisions with other people they trust, and it is up to you to consider whether that influence is potentially malign and not in the client’s best interests: using the techniques above will help you in this.
Your client may have:
- dementia / Alzheimer’s
- a learning difficulty or be dyslexic, illiterate or innumerate
- a mental health condition
- an addiction.
While we all immediately identify a client with a walking stick or a guide dog as potentially requiring physical assistance, it’s unlikely you will spot initially any of the cognitive factors listed above. Indeed, unless the client volunteers the information, there may be no clues at all. So how do you find out? Getting a conversation going is the key: respectfully asking, in the initial meeting, whether a client needs extra help, is a good place to start. Empathy is useful here: try opening a conversation along these lines: “There will be a lot to take in, Mr Smith, so I will explain everything carefully and put it all in writing after this meeting, but is there anything else I can do that would help you? For example, I can arrange…”. You may have a range of strategies available in the office for assisting vulnerable clients: see the Law Society’s practice note on meeting the needs of vulnerable clients.
As the matter progresses, be alert to any signs that the client has not understood you. Calls asking for clarification, forgetfulness, repetitive statements and failure to respond to communications are, of course, all normal human behaviours, but if you become concerned that your client is unable to carry out what we see as the normal, routine ‘paperwork’ of life, you need to take further steps to address that now-apparent vulnerability.
Social / emotional stress factors
If your client is in a heightened emotional state (for example, due to a recent bereavement, pending homelessness, redundancy, potential loss of liberty, financial loss or a marriage / relationship breakdown), they may be vulnerable by virtue of the stress and anxiety of their situation. This can lead clients to make unwise or short-sighted decisions. While solicitors must act in the best interests of their client, they cannot enforce wisdom. You should ensure that you:
- give the client the opportunity to consult you privately and confidentially
- provide clear written advice
- signpost the client to additional sources of support
- explore and evaluate all options available to the client, and
- keep full records of all those steps, including any situations where the client went against your advice.
An action plan for vulnerability
You should consider developing an action plan for vulnerability in your firm, so you can readily identify when and how a client may need extra help, and how you can support them as effectively as possible.
1. Define vulnerability
First, define what you mean by vulnerability. List examples and set out in policy form how you will deal with vulnerability issues in your firm. The Law Society’s practice note referred to above is a good place to start.
2. New clients
Screen for vulnerability when you take on a new client. Update your file-opening procedures to require fee-earners to actively consider vulnerability and record exactly how any identified vulnerability is being addressed.
3. Train your staff
Ensure all client-facing personnel are trained in how to recognise vulnerability; consider upskilling staff by registering the firm with the Alzheimer’s Society’s Dementia Friends initiative, for example, and setting out clear expectations around what steps to take when a vulnerable client is identified. These will depend on the type of vulnerability, but they could include:
- asking if it would help if correspondence was read to a client at a meeting, rather than simply posted out to them
- supplying written information in a large font size
- allowing extra time for client meetings
- providing access to support providers like translation services.
4. Create a guide
Consider developing a guide for clients that explains how your firm helps vulnerable clients: you can set out the ways in which you can offer additional help. Giving this to clients at the outset, either at your first meeting or within the client care letter, and making it a natural part of your file-opening procedures, may help overcome any reticence on the part of the client, initiate helpful discussions and identify where assistance is needed sooner rather than later.
5. Review how you communicate
Review, at least annually, all template client care letters and terms of business to ensure they are written in plain English. The SRA guidance on client care letters raises the bar on understandability. It is not enough simply to have supplied all the regulatory information – your client care letter must be easy to understand. The guidance makes a clear connection between client care letters and vulnerability. Lawyers are unlikely to spot any departures from plain English, legal language being entirely normal to them, so the best people to give honest feedback are clients: either ask for this directly via client feedback mechanisms, or specifically monitor it through bespoke customer testing.
Given the SRA’s focus and attention on effective communication, firms should now be reviewing client care letters and terms of business for plain English, but, as I have explained, addressing client vulnerability encompasses much more than just speaking clearly. Communication is about the effective transfer of knowledge: if the SRA comes knocking on your door, how confident are you that your firm is communicating as effectively as possible with vulnerable clients?