David Buchanan-Cook: Power imbalance between client and solicitor must be acknowledged and addressed

How should the legal profession go about identifying potentially vulnerable clients?

Across all sectors '“both public and private '“ there is an increasing awareness of consumer vulnerability and a recognition of the need to adapt existing processes to identify these consumers and adopt measures to engage effectively with them.

Within the legal profession, this is as important as in any other sector. Solicitors provide a valuable service to their clients, and that service has to be tailored to the needs of the individual client, including taking into account the client’s potential vulnerability. But how do you identify a vulnerable client? Is it as straightforward as it sounds?

Rules provided to solicitors by the Law Society of Scotland go some way to defining client vulnerability and offer useful practical advice for dealing with vulnerable clients. However, there are places where the guidance appears to equate vulnerability with capacity, and it is implied that this will arise infrequently: “Often the solicitor will be able to check quickly and confidently that there is no question of vulnerability”. Is that really the case? Is vulnerability not more than that?

Most recent research on vulnerability tends to take the wider view that most individuals are, to varying degrees, vulnerable. It is also generally considered to be a fluid state in that we are all, or could all be, vulnerable at different stages of our lives, and in different situations.

David Buchanan-Cook, Scottish Legal Complaints Commission