Unit 3: Recognising Good and Bad Advice

Many people instruct a legal adviser such as a solicitor with the expectation that they will sort it all out and make the problem go away. This is NOT what your adviser is for!

To get the best outcome, you need to work with your adviser. There will be tasks that an adviser will do for you, but there will also be tasks that only you can do - particularly when it comes to finding evidence.

If you don't do as your adviser advises, then you are much less likely to succeed in your case.

How do you know whether expert advice is good advice when you are not an expert? You may have no idea whether what your client is being told is right or wrong - and even if you do, you may having difficulty discussing this without giving immigration advice.

What you can do is look at the 'expert's' overall behaviour. There are a number of things that you expect a good adviser to do:

• Explain any documents they ask you to sign
• Properly explain confidentiality and other duties
• Take full instructions on all aspects of the application or claim, with notes taken by hand or on a laptop or desktop computer
• Give detailed advice on:
  • the requirements, procedures and merits of an application or claim
  • the strengths and weaknesses of the case
  • the evidence that might be obtained
• Agree who will be responsible for any necessary actions (this can be the client as well as the solicitor)
• Not make unrealistic promises
• Be reasonably willing to take time and answer questions
• Meet clients in a confidential space
• Give the client a 'client care letter' with contact details, a summary of the case and of the advice given, etc.
• Inform you of your right to complain and who you can complain to
• LEGAL AID SOLICITORS: Explain legal aid funding
• PRIVATE SOLICITORS:
  • Be transparent about about fees and charges
  • Explain eligibility for legal aid (where appropriate)

It's worth noting that this doesn't all have to be done in one sitting. So if your client has only just instructed a solicitor, then the solicitor may not have had a chance to do all of this. However, an absence of timely follow-up appointments might be cause for concern.

One thing an adviser should never do is promise success. No adviser can be 100% sure that a case will succeed. They will be deceiving their client if they say it will.

There are also some things that a good adviser should never do:

• Be unwilling to listen
• Be unclear about fees and charges
• Not make reasonable efforts to explain things that are relevant to the client's case (e.g. the definition of a refugee)
• Adopt a 'sausage factory' or 'painting by numbers' approach (e.g. by relying on generic arguments and not paying enough attention to individual circumstances, etc.)
• Not mention legal aid, or actively discourage clients from accessing legal aid (if eligible and in-scope)
• Show a lack of care and/or make mistakes - particularly factual errors
• Breach confidentiality or threaten to do so
• Lie or use deception, or offer to do so on behalf of the client
• Behave in an inappropriate, abusive, threatening or coercive manner towards clients and others

In most circumstances the various regulators impose the same duties and responsibilities on the people they regulate. However there is one key difference: IAA advisers are required to transfer files promptly, regardless of whether the client owes money, effectively prohibiting the exercise of a lien. A lien is where an adviser withholds a file or document because the client owes them money. Solicitors are allowed to exercise a lien.

The difference can be put down to the fact that solicitors can give other forms of legal advice, not just immigration, so the rules or principles that apply to them have to work across all areas of law.

Arguably the consequences of withholding a migrants file or documents are such that it would not be in their best interests. A solicitor's duty to act in client's best interests also extends to former clients. So withholding the file could in any case be a breach of a solicitor's duties. You can indirectly argue that the IAA's standards on this matter should apply to solicitors (and other regulated advisers.)