The legal profession has long recognised that some clients require additional support. What is becoming increasingly clear, however, is that regulators, the Legal Ombudsman and the courts expect firms to identify vulnerability proactively and respond appropriately. This is not an ‘optional’ requirement but a ‘mandatory’ one.

The Law Society’s guidance on meeting the needs of vulnerable clients identifies three broad categories of vulnerability, including clients who need additional support despite retaining capacity, clients who lack capacity and clients who may be vulnerable to undue influence.

Importantly, vulnerability and capacity are not the same thing.

A client may be capable of giving instructions but still be vulnerable because of mental health issues, emotional distress, cognitive difficulties, trauma or other personal circumstances. The Law Society guidance emphasises that solicitors should have the skills and processes necessary to identify situations where reduced capacity or vulnerability may be present and should adapt their service accordingly.

This is not simply good practice. It is also a regulatory requirement.

Paragraph 3.4 of the SRA Code of Conduct for Solicitors requires solicitors to “consider and take account of your client’s attributes, needs and circumstances”. The Court of Appeal specifically referenced this obligation when considering the expectations placed upon solicitors dealing with vulnerable clients and those whose capacity may be in question.

The Court highlighted that the Law Society guidance expressly states that where a solicitor has doubts about a client’s capacity, they must satisfy themselves about that capacity and take appropriate steps to protect the client’s interests. The guidance also notes that doing so reduces the risk of subsequent complaints or challenges.

 The Court of Appeal’s decision in Aina Khan Law Ltd v Legal Ombudsman reinforces these principles. The Court accepted that the Ombudsman was entitled to assess whether the firm had adequately considered both vulnerability and capacity issues. The Court further accepted that support mechanisms, including involvement of family members where appropriate, should have been considered much earlier in the retainer.

For practitioners, there are several practical lessons:

• Do not assume that a distressed client simply reflects the normal pressures of litigation.
• Record observations contemporaneously.
• Review vulnerability throughout the life of the matter, not only at onboarding.
• Consider whether reasonable adjustments are needed.
• Assess whether additional support persons may assist understanding and decision-making.
• Escalate concerns where capacity may genuinely be in doubt.
• Ensure that decisions regarding vulnerability and capacity are documented and capable of being evidenced if later challenged.

The most concerning aspect of the Ombudsman’s findings was its view that the client may not have had capacity to enter into the contractual arrangement with the firm. The Ombudsman observed that there was a strong argument that none of the firm’s fees were recoverable because the underlying agreement may have been invalid.

Whether or not a court would ultimately reach the same conclusion is not the point. The important lesson is that vulnerability issues can rapidly become fee recovery issues.

The financial consequences of overlooking vulnerability can therefore extend far beyond complaints handling. They may affect the enforceability of retainers, client satisfaction, regulatory exposure, professional indemnity risk and reputation.

For many firms, the challenge is not recognising the importance of vulnerability but ensuring that it is addressed consistently across all matters. Technology can play a useful role in supporting compliance. The Legal Lexi, for example, can help firms record client interactions, identify potential risk indicators, evidence advice given and maintain an audit trail demonstrating that client needs and circumstances were actively considered throughout the retainer.

 Ultimately, vulnerability is no longer a niche client care issue. The combined effect of the SRA Code of Conduct, Law Society guidance and the Legal Ombudsman’s approach mean it is a core professional obligation and a significant risk management issue for every law firm.

 About The Legal Lexi

The Legal Lexi helps law firms deliver clear, compliant cost and retainer explanations to their clients.

Using intelligent tools to identify vulnerable clients who may need additional support, it presents complex legal information in plain English, with optional audio assistance.  Documents are securely delivered, signed, and returned through the platform – alongside recorded evidence of understanding, documenting their informed consent – helping protect your fees, reduce disputes, and build stronger client trust.

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