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Nipped in the bud?

20 October 08

As the Complaints Commission begins work, solicitors appear to be revising their procedures to reduce the risk of a formal complaint, as a downward trend indicates

by Jennifer Veitch

In the long-running and sometimes fractious debate about the handling of legal complaints, the Law Society of Scotland has often argued that the number of dissatisfied clients is tiny compared to the volume of transactions carried out by firms every year.

Those looking for further evidence of the generally high quality of service provided by lawyers can point to the fact that the number of complaints reaching the Society has actually been falling in recent years.

This trend may well continue, as latest figures – up to the end of August this year – reveal some significant falls in some of the business categories that usually attract most complaints. Complaints about residential conveyancing, criminal work, and executries, wills and trusts, have all dropped by over 20% since 2006, though civil litigation-related complaints have risen (see version for table). Total complaints received, excluding the one-off bulge in endowment-related matters, now mostly through the system, have dropped by 13.5%.

Incentive to resolve

With the Scottish Legal Complaints Commission now open, however, the stakes have just become significantly higher. Any service complaints about business instructed after 1 October this year will carry a risk that a firm will be asked to pay a client compensation of up to £20,000 – four times the previous limit for inadequate professional service.

Case fees will also be payable when complaints are upheld; the Commission is likely to use its discretion over the level of fees to penalise firms who are the subject of repeated complaints.

As a result, despite the falling number of complaints, many firms will see little room for complacency. However, there is some degree of optimism within the Society that solicitors are grasping the nettle and taking a more proactive approach to complaints.

David Newton, senior partner in civil litigation with the PRG Group and convener of the Society’s Complaints Committee, says he has noticed a greater willingness among firms to resolve complaints at source.

He believes the requirements for firms to have dedicated client relations partners and for clearly worded letters of engagement have improved the situation in recent years. He adds that firms are less likely to defend their position all the way through an investigation.

“What we notice on the committee side is there are more complaints now that settle once a recommendation has been made by the reporter than did in the past,” he says. “More firms are being more active in dealing with their complaints and trying to resolve them before they go to the report stage.”

 

Having a client relations partner helps to ensure a swifter and better co-ordinated approach to complaints handling, he adds. “It means that at least one person in the firm has an indication of complaints against other partners. What we certainly try and do in my firm is deal with it the minute it comes in.”

Familiar pattern

Despite a downward trend in complaints, the fact remains that it is chiefly the core services offered by high street firms – conveyancing, executries, wills and trusts, family law and crime – that see the highest number of dissatisfied customers.

David Newton says smaller firms with only one or two partners may be less likely to deal with complaints effectively, and may even exacerbate the situation by failing to respond in time. “There are some people who tend to bury their heads in the sand and hope they will go away. Then they fall foul of regulations by not replying. Firms with more than

15 partners probably don’t let them get to the Society because they will deal with them themselves.”

 

Time to refresh

Some firms are now reviewing their complaints handling procedures. Roderick Wylie, chief executive of Edinburgh-based Murray Beith Murray, which specialises in private client work, says the firm is adopting a number of measures to review its existing complaints procedures, partly in light of the new Commission.

“We don’t get very many complaints, and we want that to continue and to reduce them”, he says. “We are not completely changing our approach, but we are using this opportunity to refresh our procedures and heighten fee earners’ awareness.”

The firm’s client relations partner will give an internal seminar to all fee earners on handling complaints, and a round of internal audits next month will build on its system of file review. In addition, Wylie adds that all lawyers will be required to take CPD through completing online risk management modules offered by Marsh.

“It’s really a refresher but we have said, partly as a result of the Commission coming, that every single legally qualified member of staff would have to do that this year”, he says.

Proper cover

As most complaints won’t be about legal advice but are more likely to be about client care or communication, Wylie stresses the importance of adopting strategies to cope when solicitors are absent.

“If you don’t have strength and depth and only one or two people covering an area, then if one goes on holiday or one is off sick there is the potential for things to go wrong.

“You need to make sure that all of the areas you cover are not overly dependent on one or two people. Then if something happens, it can be progressed.”

Wylie expects that the higher stakes of the new system may remind firms not to take on work that is beyond their capabilities, and more complex cases may increasingly be referred on.

“It works both ways”, he adds. “Because of our expertise in certain areas, for example, the more complex asset and tax planning, we can assist smaller firms with that sort of work. Equally, we don’t do family law and we would want to refer that on to another firm.”

Before and after

For Dianne Paterson, managing partner of Russel + Aitken’s Edinburgh branch, the arrival of the Commission simply reinforces the firm’s existing approach to dealing with the complaints that can arise from “misunderstandings and oversights”.

She stresses it is important that firms explain to clients from the start how any complaints will be dealt with – and also learn from any grievances to improve future services.

“We advise clients about our firm’s complaints procedure at the outset of a transaction and send out a client satisfaction survey at the end of a transaction”, she explains. “We respond to and investigate any issue quickly and involve our client relations partner, who is always willing to meet with clients and discuss any concerns at an early stage.

“Although positive comment, at the end of a transaction, is always welcome, so too is any constructive criticism, which we actively take on board.”

When firms are trying to build up lasting relationships with clients, Paterson adds that a complaint may even present an opportunity to improve the relationship with a client if is dealt with appropriately.

“We believe that the most important factor in the whole process is to ensure that there is still a feeling of goodwill between the solicitor and the client, and that the trusted relationship, which may have been built up over the years, is not destroyed and, in some cases, may even be strengthened.

“We are in no doubt that good communication with our clients before, during and after a transaction will achieve this. As solicitors, we are always working in our clients’ interest and would want to continue to work with them to resolve any issues that they might have.”

Good records

For those firms aware that they require to make progress in complaints handling to avoid falling foul of the new Commission, further support is becoming available from the Society, both for client relations partners and for other members of firms who want advice.

Mary McGowan, Head of Regulation Liaison, says client relations partners will be “crucial in the new landscape”. She has written to all such partners this month to remind them of the Commission’s powers, and of steps that they should take to prepare for any complaints being investigated under the new system.

Firms are being advised to keep complete and accurate records of all steps taken to resolve complaints, as the Commission will be looking for evidence of how the firm has responded to a complaint. McGowan adds: “Poor complaint handling may become an element of the complaint – one which is easily avoided.”

She also advises firms to update all internal complaints procedures, and to ensure that all staff – including those on reception – are aware of the new arrangements for making a complaint.

Opportunity awaits

As the Commission will refer premature complaints back to firms who have not had a reasonable opportunity of resolving them, Mary McGowan says this presents an opportunity for client relations partners.

“It’s really good because what it will do is hand the initiative back to client relations partners so it does get resolved and doesn’t get into the Commission’s machinery”, she comments.

There is already evidence that this approach may work well, as she adds that the recent trends on complaints coming to the Society suggest that many more are being resolved by firms at source.

“I don’t think there is any doubt about that. We don’t have any hard data to prove that, apart from the very fact that the number of complaints we are receiving has decreased. And even if you take endowments out of that, they are still at the lowest level ever. At a time when things aren’t going well otherwise, you would expect them to be increasing and they’re not.”

Skill set

Successful complaints handling can depend on the skills of the client relations partner, she adds, urging firms to choose the right person for the job.

“There is no point in having the senior partner who doesn’t have time to do it,” she says. “They must have the authority of the partnership to settle things. They have got to have the time to do it, to have the right attitude, and to be able to seize the initiative and act quickly.

“They have got to have really good listening skills, to be open, objective and be looking to learn from the complaint to see what they need to improve their business; and always be looking for a practical solution at all times and not just seeking to defend the firm.

“You need to have a good combination of soft skills as a client relations partner and not to see complaints as a threat but an opportunity. This is crucial because you don’t want to get into the Commission with those £20,000 awards at their fingertips.”

 

Society support

While there is no compulsory training for client relations partners or firms in dealing with complaints, the Regulation Liaison team will be offering support to firms across the country, as announced in the Journal last month (September, p 34).

“We have set up this new team and one of our primary roles is going to be educating the profession”, Mary McGowan explains. We are going to put together a timetable of roadshows and go out to specific firms who ask us to go out to them. We will talk to any member of the profession who shows an interest, at whatever level. We will go out and talk to them and encourage them.”

She adds that the new system will allow the Society to play a much more proactive role in advising firms how to handle service complaints – this simply wasn’t possible when the Society was required to investigate and rule on complaints.

“We will give them all the help we possibly can”, she says. “We will be much more representative of the solicitor.”

Reasonable expectation

Ultimately, however, it is in the commercial interests of firms to improve their complaints handling, Dianne Paterson observes, and clients should be able to expect fair treatment.

“Solicitors’ firms are no different from any other business. Clients expect a fair outcome from a complaint – they do not expect to have to jump through a great number of procedural hoops to make a complaint, and they want to be treated fairly and speedily throughout the whole process by the people involved.

“This is not unreasonable and clients have a right to expect this.”

Jennifer Veitch is a freelance journalist with a special interest in the law and legal affairsr

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