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Dealing with Complaints by Chris Gates

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Before I examine how complaints are best handled, let’s take a step back and remind ourselves how the majority of complaints can be avoided in the first place.

The ‘usual suspects’ with complaints - as with negligence - are domestic conveyancing, matrimonial and probate, which made up half of all complaints referred to the Legal Ombudsman in 2013/14.  Whatever the practice area, most complaints are about costs.  Get that right and you will immediately cut the number of complaints you will receive, so if you haven’t recently reviewed your client care letters and/or terms of business, your invoices and marketing materials, do so now.

Ensure that your paperwork is clear and will make sense to all of your clients; whatever their background.  Don’t assume that your clients will understand the distinction between estimates, fixed fees and hourly rates and between costs, disbursements and VAT.  Be particularly careful where an instruction transitions from one method of charging to another:  for instance, a divorce on a fixed fee moving on to ancillary relief work which is charged on a time-recorded basis.

Ensure that client meetings where costs are discussed are properly supported by contemporaneous attendance notes – something which will be second nature to litigators but perhaps not to conveyancers.

We are in the business of customer satisfaction.  Aspiring to excellence in our dealings with clients should not end when they raise a complaint.  How we deal with complaints is every bit as important as how we deal with everyday client instructions.

The starting point is a formal written Complaints Procedure which sets out your commitment to clients to address their complaint promptly, fairly, openly and effectively.  Since complaints handling forms part of the SRA outcome-focused regulatory regime, the form of that Procedure is not proscribed, but the Law Society and the Legal Ombudsman provide helpful guidance on what the Procedure should encompass.  While publishing the Complaints Procedure on your website is not mandatory, I would regard this as good practice.  You must refer to the client’s right of complaint and address/email details of the Legal Ombudsman in the client care letter/terms of business and in the body of your Complaints Procedure.

The Complaints Procedure is your client-facing document, but it is equally important that your members of staff understand the importance of effective complaints handling and I would encourage you to put in place another policy/procedure for internal consumption.  I have consciously referred to ‘members of staff’ rather than fee earners, since it is the receptionist and secretaries/PA who will often be the first to hear of client dissatisfaction.  This may be because the client does not feel comfortable raising issues with the fee earner (let alone the managing partner) directly.  It is imperative that your support staff are properly trained to recognise complaints, how to handle the client, and to whom such complaints should be promptly referred.  The majority of such informal complaints can and should be addressed and diffused at any early stage by a friendly and contrite call from the fee earner or supervising partner.  Having done so, while the client should be reminded of their right to escalate the complaint through the formal procedure, that will hopefully be unnecessary.  Unless such complaints are nipped in the bud, they are likely to fester and then erupt in such a way as the client relationship is then irredeemably damaged.

An attendance note should be made of the conversation and filed with the complaints manager even if the complaint is readily resolved, so as to address the issues raised through training, new processes, or disciplinary action.

Complaints will need to be escalated where the subject matter is serious and/or incapable of informal resolution or where the client so demands.

The process which the Legal Ombudsman recommends is:

  1. Identify the complaint and understand it    
  2. Promptly acknowledge the complaint, tell the client what will happen next and highlight any impact on an ongoing matter
  3. Tell them what you have found out, acknowledge any problems and any remedy proposed within 8 weeks  
  4. Signpost to the Legal Ombudsman.

Since complaints rest on their own facts, it is not possible to generalise but a number of questions are repeatedly raised when I speak to internal complaints handlers about their role.

1. Is it possible to speak ‘off the record’ to the Legal Ombudsman – the short answer is “no”; moreover, the Ombudsman will make a record of such conversations which may then be subject to a subject access request under the Data Protection Act so you should be circumspect about what you say.

2. May time extensions be sought in order to comply with directions imposed by the Legal Ombudsman - for instance, to provide a copy of a file buried in archives?  The short answers is “yes”.  I have always found the Legal Ombudsman to be perfectly amenable where the request is reasonable.

3. How does one countenance the competing demands of the Legal Ombudsman and your professional indemnity insurers where there is a clear case of negligence such as a missed limitation?  There is no straightforward answer to this conundrum, but the following may assist.  You will recall that there is a positive obligation on you to cooperate with the Legal Ombudsman.  Failure to do so is a breach of the SRA Code and could lead to your firm being reported.  You must therefore deal candidly with the complainant and the Legal Ombudsman and you may need to remind your insurer of this fact if they are asking you to pull down the proverbial shutters.  You should find that the Legal Ombudsman is appreciative of your predicament.  Out-and-out negligence and poor service are not of course mutually exclusive.  My example of missing a limitation period may well amount to negligence and poor service.  However, where-ever possible you should endeavour to excise the poor service part of the complaint from the negligence and deal with it through your Complaints Procedure.  By doing so, you may avoid the £400 fee levied by the Legal Ombudsman (more of which follows below), you will avoid going on to the SRA’s radar and the client may just accept the remedy offered by you or proposed by the Legal Ombudsman and take the matter no further.  I think the key is to constantly remind yourself (and if necessary your insurers) of the remit of the Legal Ombudsman which is to address poor service; not negligence, which is a function of the Courts.

4. Questions often arise about appropriate remedies for complaints which – while merited – have given rise to no direct financial loss.  Unlike civil litigation where (with very limited exceptions) damages are not awarded for distress/inconvenience, the Legal Ombudsman certainly will make awards as compensation for this head of loss.  Historically, the OSS published some guidance on levels of awards by reference to case studies but the Legal Ombudsman no-longer does so, nor is Lawyerline (a Law Society initiative) very helpful in this regard.  Hopefully the following assists.  Even at the high end of distress/inconvenience where poor service may have been exacerbated by a wholly inadequate response to the complaint, I am not aware of awards over £1,000; indeed awards of around £200 would be more usual.  At the low end of distress/inconvenience some fairly ‘left field’ gestures are often appropriate; for instance, a bunch of flowers or a £20 John Lewis voucher.  Be creative!

It costs nothing to say sorry; an apology is usually well received, and it needn’t be an admission.  I would recommend that your acknowledgement letters to complainants should begin:  “I am sorry to hear that you are dissatisfied with the service you received…” so as to set the tone for a (hopefully) conciliatory and constructive dialogue with the complainant.

5. There are circumstances in which the case fee of £400 levied by the Legal Ombudsman may be waived:  the following principles arise from Scheme Rule 6.2 of the Legal Services Act 2007:

A case fee is payable…for every potentially chargeable complaint when it is closed unless:

1. The complaint was:

  • abandoned or withdrawn; or
  • settled, resolved or determined in favour of the authorised person; 

    and   

2. The Ombudsman is satisfied that the authorised person took all reasonable steps, under his/her complaints procedures, to try to resolve the complaint.

It follows that if the Legal Ombudsman determines that you did not provide a poor service but you did not take all reasonable steps to resolve the complaint at the first tier, a case fee will be chargeable.  Conversely, it may also mean that – notwithstanding a finding of poor service – where you processed the complaint properly and made an entirely reasonable offer which was refused by the complainant, the Legal Ombudsman may waive the fee is s/he makes a determination which is no more favourable to the complainant than your offer.

There should never be a situation where the complaint raised by your client is ignored.  In no circumstances whatsoever is that acceptable, even when dealing with a vexatious client.

One final thought – for goodness sake learn from your mistakes!

If you have any questions for Chris or would like to find out more about the services that he can provide through 360 Legal Group then please email louise@360legalgroup.co.uk in the first instance.