Record now to bring extra clarity to a client's wishes

We are all familiar with automated call centre warnings
that ‘calls may be recorded
for training or monitoring purposes.’

It is commonplace nowadays, especially within financial services, and it puts us on our guard to be extra careful with what we say and how we say it, just in case our conversation is ever disputed and a transcript is required as evidence.

In reality, of course, it is exceptionally rare for anyone to have their words played back and scrutinised. The possibility of such a recording ever being produced as evidence in a court dispute seems remote.

While waiting to speak to a human being at my energy suppliers recently, I began to wonder if recorded conversations will ever have a place in a solicitor’s office. How would the practice be applied in a legal setting? And why?

Recording a telephone conversation is legal and ethical in the business world, except
for third-party interception. Tight rules under the Telecommunications Regulations 2000 and other legislative frameworks govern the type of information that can be gathered and how the information can be used. The customer is usually notified up front – hence the robotic woman who greets us.

In fact, businesses are required by licence to make every reasonable effort to inform callers that a telephone conversation may or will be recorded.

As customers or clients, we should regard it as reassuring that every cough and spit of our conversations is being noted for possible future reference. In the event of a subsequent complaint, it would be considered reasonable to request a transcribed copy of the conversation under scrutiny.

In the legal world, complaints from clients are thankfully rare and traditional methods, such as attendance notes on file, are useful tools where a dispute arises. For instance, it could be that a client claims they were not informed of something that has incurred a fee.

Although it’s arguably not a customer-friendly practice, a legal client could be persuaded that there is a clear benefit in recording conversations, either by phone or face to face, if it maximises the chance of their wishes or instructions being meticulously observed.

With legal matters, as with all professional services, there is scope for misunderstanding. After all, the law is a complex subject and although our role as solicitors is to explain processes
in clear, simple language, we are only human and clients can be left confused.

This is especially the case with private client matters where ill health, infirmity and other
issues can affect a person’s understanding or recollection
of a conversation.

Take it one step further and the principle of making a recording
to provide additional clarity – all part of customer satisfaction – could equally apply to video.

In our increasingly litigious society, it is easy for disgruntled family members to claim a client did not have the capacity
to make their will or give instructions for other types
of work.

While a medical report and
a clear attendance note can
often negate such a claim, what
could be better than an actual recording or video of the person at the exact time they gave those instructions?

The wording remains at the heart of the proceedings as is legally required, but the person’s demeanour, facial expressions, voice clarity and much more will be conveyed. As an ad hoc service, used in the right circumstances, I am sure it
has merit.

A video or audio recording of a will is not in itself legally binding, but it could be lodged alongside a last will and testament to support it, especially if someone harbours concerns over a possible challenge after the person’s death. The recording will illustrate the person’s sound mind and may head off a costly and upsetting feud between loved ones.

The latest data from the Chancery Division of the High Court shows the number of claims lodged for the breach of fiduciary duty, failure by executors to properly carry out their obligations, increased from 107 in 2012 to 368 in 2013.

It is difficult to know the reason for this. However, greater clarity provided by supplementary recordings could reduce the number of disputes over instructions not being carried out.

So far call recording has only tiptoed into law offices. For instance, the Law Society issued a practice note to law firms in 2011 about the then Financial Services Authority’s requirements to record calls about mortgage
debt arrears.

In the future, developing audio or video recordings as
a client service, perhaps to support wills, lasting power of attorneys etc, may be less of a regulatory issue than an ethical one for our profession. SJ