While the cat is away…

February 1st, 2015
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By Ann Bertelsmann

Businessdictionary.com succinctly defines it as ‘monitoring and regulating of processes, or delegated activities, responsibilities, or tasks’ (www.businessdictionary.com, accessed 28-11-2014).

In this article, I limit the discussion to professional supervision, covering interaction with colleagues and clients and the manner in which clients’ work is done. I do not discuss supervision covering contractual and human resources issues, such as time-keeping and sick leave.

In my view, effective supervision is not –

• micro-managing staff;

• disempowering staff; or

• checking everything oneself.

It should rather –

• be based on a well-considered, well-coordinated supervision plan and policies;

• be seen as a business process rather than a threat or criticism;

• provide broad guidelines;

• provide appropriate training;

• provide regular reviews;

• provide constructive feedback;

• empower and motivate;

• provide effective delegation;

• be flexible and vary depending on level of experience of the supervisee and the complexity of the work being done;

• include peer reviews;

• be delegated where possible;

• be built on a foundation of the softer skills like supportiveness, inspiration, respect, openness, two-way communication and leading by example;

• be reinforced by the judicious use of rewards (carrots) and some sanctions (sticks) where appropriate.

Why supervision?

In my experience at the Attorneys Insurance Indemnity Fund (AIIF), most professional indemnity claims are primarily the result of the absence of effective supervision.

Supervision should be regarded as a tool to improve profitability and efficiency, rather than a nuisance that takes away valuable fee-earning time.

If carried out effectively and efficiently, supervision should:

Ineffective or no supervision can lead to:

• Ensure the provision of high quality of services – leading to satisfied clients.

• Inconsistent service quality – loss of dissatisfied clients.

• Minimise the practice’s risk of misappropriation or fraud.

• Claims against practices for misappropriation or fraud.

• Minimise the practice’s risk, by preventing errors and delays in the work produced.

• Claims against practices for professional negligence.

• Provide a valuable opportunity to help individuals develop their skills

• Disciplinary action by your professional body. (For example, the Law Society of the Northern Provinces Rule 89.16 states that it is unprofessional or dishonourable or unworthy conduct to fail to adequately supervise staff.)

• Lead to successful, efficient teamwork.

• Orders for costs de bonis propriis (excluded from cover in your AIIF policy).

• Produce confident, motivated staff and improve staff retention.

• Unhappy, unmotivated staff.

• Increase productivity and profitability.

• Decreased productivity and profitability.

Who should be supervised?

All principals (partners or directors) professional and administrative staff, consultants and agents should be supervised to some degree. It goes without saying that different degrees and styles of supervision are required. (The nature and frequency of supervision will naturally depend on the level of experience of the person being supervised and the complexity of the work being supervised.)

Remember that principals are jointly and severally liable for the actions of their co-principals. Many claims arise out of lack of mutual supervision among co-principals.

So what is it that should be supervised?

All aspects of the running of a practice need to be supervised, but some important areas are –

• ethics and compliance with professional standards and the firm’s ethos;

• technical skills;

• client service and communication;

• productivity;

• billing;

• fee recovery;

• staff development; and

• risk management interventions like the use of engagement letters, use of diary systems and file management.

Policies and procedures relating to these topics should be covered in the firm’s Minimum Operating Standards (MOS) document. (Ideally, the MOS should also contain a well-considered, well-coordinated supervision plan and policy.)

How do I supervise effectively?

Firstly, micromanagement is unproductive. It means that senior practitioners will have to spend fee-earning time supervising. It also probably means that members of staff are disempowered.

Secondly, it is important to delegate as many supervisory functions as possible to reliable staff.

Thirdly, it is essential to get staff buy-in and to ensure that supervision procedures are seen as important business processes rather than a threat or criticism of their work.

Successful, well-run practices usually include standard policies and procedures for delegation and supervision in their MOS or Standard Operating Procedures. These might include the following:

• Procedures for checking incoming documents and correspondence, including e-mails. This may be time-consuming, but gives good insight into what is happening in the firm and surprisingly often, an early warning of problems.

• The use of file audits/reviews. Peer reviews should even be done on the files of the most senior practitioners. Ideally, files should be reviewed against a checklist of key issues. Audits need to be conducted regularly, particularly in the case of new or junior staff.

• Formal and informal one-on-one meetings.

• Regular group meetings or brain-storming sessions to discuss interesting or problematic matters and/or new legal developments. These can be very helpful in getting staff to discuss the problem file that keeps being put to the bottom of the pile.

• Effective mentoring systems, an open-door policy and the encouragement of mutual respect and openness between employers and the employees, which also tend to draw out problems while they are still manageable.

• Monitoring of behavioural changes in staff. These may be warning signs.

• Monitoring of workloads.

• Monitoring of file inactivity for a significant period. This could mean that the file is overlooked or there are problems with the conduct of the matter.

• Files on which work is still being done, but there is no billing, or where clients have not paid the bill. These could be warning signs.

• Obtaining client feedback. Put in place formal complaints-handling processes.

• Use of checklists for different areas of work.

• Performance management procedures.

• Training (for supervisees and supervisors).

• Encouraging those being supervised to ask for help.

Delegation

In running a successful practice and carrying out a client’s mandate, it is usually essential to delegate responsibility to others, for fulfillment of parts or the whole of the mandate.

Delegation will not remove a practitioner’s responsibility to clients. The buck still stops with you. Wherever there is delegation, it is essential that controls are put in place to ensure quality service to clients. Delegates must be supervised effectively.

Delegation of some supervisory functions is also possible and desirable.

By all means delegate, but ensure that the nature of the task is matched to the qualifications and experience of the delegate. The supervision style adopted will also depend on these factors.

‘Delegation can be an important part of providing effective supervision when supervising the work of a more inexperienced person. Successful delegation involves –

• checking that the individual has the capacity to take on the work;

• briefing well by providing sufficient information to enable them to do the task effectively;

• explaining the background to the work and that individual’s part in it;

• being clear on the results you are expecting and the deadlines;

• giving sufficient authority and resources to get the work done;

• encouraging the individual to exercise initiative and ask questions; [and]

• giving guidance without interference or [spoon-feeding]’ (www.lawsociety.org.uk, accessed 28-11-2014).

It is also well worth reading the excellent guide on the topic of supervision, produced by the Queensland Law Society (www.qls.com.au, accessed 28-11-2014).

Insured attorney X to Risk Manager (when discussing a claim against him): ‘We do not have time to supervise staff. We would rather spend that time making more fees, than waste it micromanaging staff. You see, it all depends on your risk appetite. Successful businessmen know that you have to adopt this sensible approach if you want to run a profitable business.’

Is that also your view?

Lack of supervision is the common thread that runs through all three below scenarios.

Scenario 1: The secretary

Susan, a conveyancing secretary, had to amend certain transfer documents, where the property description had been incorrectly reflected. The client had already signed the incorrect documents. Believing that she was assisting the client by saving him the inconvenience of coming into the office to re-sign the documents, she simply forged the client’s signature to the amendments. The amended property description became the centre of a dispute.

This led to a claim against the practice.

Scenario 2: The candidate attorney

Steve was a candidate attorney with six months’ experience. His principal Andrew, a commercial lawyer, asked him to attend to a claim against the Road Accident Fund (RAF), on behalf of his domestic worker, whose son had been injured when an unidentified vehicle collided with him. Because Steve knew that prescription did not run against minors, he calculated the prescription date by reference to the date of majority – being unaware that the two-year prescription period for lodgment of ‘hit and run’ matters also applied to minors.

Another candidate attorney subsequently took over the matter and noted the prescription date Steve had written on the file. The error was only discovered when the RAF rejected the claim that she had lodged after the two-year period had elapsed.

A claim was made against the practice.

Scenario 3: The qualified attorney/partner

In a small two-partner practice, Jan attended to commercial matters and Piet ran the litigation. For a while the practice ran smoothly, but Piet who was going through a messy divorce, became progressively impossible to work with.

Soon after the partnership broke up, Jan started getting inquiries from Piet’s clients. It emerged that Piet had not been attending to his clients’ matters for some time and had lied to them about progress – even producing faked documents to buy time.

Piet subsequently absconded. Jan was left to deal with the inevitable professional indemnity claims that followed.

Conclusion

Looking at the three scenarios sketched above (based on actual claims) it appears that the practices concerned did not have any systems in place for effective delegation and supervision.

Consider what systems, checks and balances the firms could have had in place to mitigate the risk of staff (including management) creating these claims-prone situations.

Now consider again whether or not you agree with the views of insured attorney X.

Ann Bertelsmann BA (FA) HED (Unisa) LLB (Wits) is the legal risk manager for the Attorneys Insurance Indemnity Fund in Johannesburg.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 30.

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