Clients: on good terms?
The series from the Scottish Legal Complaints Commission looks at recent issues arising from solicitors' terms of business
The art of client management
In the guidance issued to practitioners last year on how to avoid the major pitfalls which give rise to complaints, we emphasised the important part which properly crafted terms of business (ToB) and/or letters of engagement can play in complaint prevention. It makes perfect sense that, at this first step in the client journey, this opportunity is taken to iron out potential problems and manage expectations in relation to the sort of things that can, unwittingly, lead to perceived, if not actual, inadequate service.
To most practitioners, it is now second nature to outline a costing structure – although we still see situations where this is not adequately covered. In a recent executry complaint, firm A had clearly set out in its terms of business an estimate of fees based on the firm’s hourly chargeout rate. What the firm failed to include, however, was the fact that, in addition to fees, it intended to charge commission. When this was charged on the realisation of funds from the estate, the executor complained. On the basis that the ToB had failed to include this, the firm agreed to refund the commission in question and we were pleased to note the complaint as having been resolved on that basis.
Of course, in terms of risk management, it is just not feasible to cover every eventuality that might lead to a complaint, and there is a danger of running the risk that, by including too much detail, the client won’t read the ToB.
Some management guru appears to have put forward the suggestion that it should all be capable of fitting to a single sheet of A4, albeit double-sided. What we find in practice is that, in an attempt to meet this aspiration, font sizes decrease to the extent that some terms become practically illegible.
In one recent case, we saw a font size so small that the firm’s terms of business were practically impossible to read. The issue was compounded by the fact that the solicitors had decided to include monetary sums relating to additional charges in longhand – “fifty pounds” instead of “£50”.
For all but the most observant of clients, a quick scan of the ToB looking for any cost-related information would not have picked these up. Indeed, we received two complaints from clients where this had been the case and they were unpleasantly surprised when their final bills came to more than they had expected from the “fixed fee”.
Strictly speaking of course, the information was buried within the ToB. However, the complainers considered that they had been in some way misled, and the way in which the ToB had been constructed and formatted had directly resulted in the complaints being made. Accordingly, we wrote to the firm concerned suggesting that, to avoid future complaints, they should consider re-formatting the information which they provided to clients, making details of additional costs more noticeable. It’s also good practice to go through the document with your client, highlighting any particularly important points which you think they may overlook – in this case, quite literally, the small print.
Another recent issue which has been highlighted in relation to ToBs centres around how firms deal with prematurity (the provision that the SLCC in general terms won’t consider a complaint unless the practitioner complained about has been afforded an opportunity to resolve the matter).
It is important to look at the wording of the legislation which relates to this. Section 4(2) says that, where a complaint is regarded as premature, the Commission “need not” take the preliminary eligibility steps, not that it “must not”. In practice, there can be valid reasons why it is not appropriate for a complainer to take matters direct to the practitioner concerned – a matter relating to serious conduct, for example. In those circumstances, the SLCC quite properly may waive the prematurity requirement. This is often a difficult balance to strike from our perspective – and it can also be tricky for solicitors.
In response to a recent complaint, the practitioner wrote to us, inviting us to reject the complaint because the client was not legally able to make the complaint to us. This was because the client had accepted his ToB, which contained a specific clause that no complaint could be made to the SLCC unless the client came in to see the solicitor to discuss same. The practitioner advised that he had invited the client in but the client had declined to come. Accordingly, the solicitor concluded that the client had failed to comply with a clause which represented an essential condition of a contract for legal services.
This drew our attention to how these particular terms were worded. The ToB stated that, while the client had the right to make a complaint to the SLCC, the client, in accepting the ToB, agreed not to make a complaint to us without first going to see the practitioner to discuss it personally and thereafter giving the solicitor enough time to address the concerns.
This causes us concerns on three counts.
- In terms of accessibility awareness, there will be situations where it is not easy or, in some situations, not physically practical, for a client to “come in to see” the solicitor.
- A complaint is defined as “any expression of dissatisfaction”, however made. While we appreciate the rationale behind the advantages of resolving matters face-to-face, we consider that it is unduly restrictive to stipulate that a complaint must be made in person. Recent research carried out by YouGov points to the power imbalance perceived by legal clients. They perceive the solicitor as the subject expert and, on that basis, often find it difficult to express their concerns at all, particularly in person rather than, say, in writing or by email.
- Finally, there is the element referred to above. From the Commission’s perspective, there are situations, not wholly conduct-related, where it is clearly desirable for the prematurity provision to be waived – in situations where, for example, the complaint:
- contains allegations of physical violence or abuse;
- is made by a vulnerable person for whom it would be inappropriate to refer back to the solicitor (for example, a refugee whose first language is not English and for whom time factors may be critical);
- is about a sole practitioner who we know is not in a position to reply.
The Commission encourages first-tier resolution of complaints, and has actively promoted this in producing guidance to assist practitioners in achieving this. However, while we acknowledge that, for this to work, the vast majority of complainers should first give their solicitor the opportunity to make resolution, in some instances this is not appropriate.
In our view, for any complaints process to be effective, it requires to be fully accessible. The inclusion of restrictive stipulations in ToB, or elsewhere, defeats that key principle.
David Buchanan-Cook is Head of Oversight at the Scottish Legal Complaints Commission. Oversight is the area of the SLCC responsible for overseeing how the professional bodies deal with conduct complaints; monitoring and reporting trends in complaints; and producing guidance and best practice notes on complaint handling.