Dealing positively with client concerns

First of two articles from the Society and the Ombudsman on some of the key issues which firms should consider to ensure they deal with client concerns positively

The Journal, April 2007, page 30

Dealing with client concerns effectively is fundamental to running a business. Whether that business is a legal practice, a shop or a garage, the principles of dealing with client concerns are the same. During the past 10 years, many people within the Scottish legal profession have recognised the value of good client care and dealing with client concerns in a positive manner. However, the issue is going to come even more sharply into focus over the next 18 months as the Scottish Legal Complaints Commission is set up to take over the handling of service complaints from the Society.

Be positive

Clients can have concerns or issues from a very early stage in a business transaction. It is therefore important at the outset to try to make clear what services will and will not be provided, and for what fee. Clients are often concerned about the complexity and cost of legal work. Many problems can be avoided if these matters are set out clearly in a letter of engagement.

Such letters can also be used to explain what clients should do if they have issues with the service they receive, or other concerns. The sooner concerns are identified and recorded, the better. It is also important to emphasise in the early stages that the matter should be resolvable – even avoiding the word “complaint” can help to prevent positions becoming polarised. The key, therefore, is being aware of concerns and nipping them in the bud.

Who should deal with concerns?

The vast majority of concerns arise either from misunderstandings or communication with the client. The person who is probably best equipped to deal with that is the person carrying out the business. The client should be encouraged to speak to that person.

However, some complaints come after a breakdown of the solicitor/client relationship, and inevitably those complaints are more difficult to deal with. This is where the role of the client relations partner is so important. He or she can stabilise an escalating dispute by stepping in. The experience of the Society, and the Ombudsman, is that often the real aim of the client in raising concerns is not to lodge a formal complaint, but rather to get answers to concerns while continuing to use the solicitor to complete the business involved.

Both the Society and the Ombudsman accept that matters can be particularly difficult where the concerns arise from a breakdown in relationship between a client and a sole practitioner, but even in those circumstances, it is worth considering whether a meeting to resolve matters would be worthwhile. A neutral third party could also be brought in.

Meeting or letter?

Face to face meetings are always the best way of trying to resolve concerns. A meeting will enable the solicitor to listen to the client’s concerns and gain a better understanding of how to resolve the matter. Sometimes a simple explanation of what is happening can be enough. On other occasions, the offer of an early apology and an agreement about how matters can be taken forward may satisfy the client. It is best practice to respond to concerns quickly and to ask clients how they think the problem could be resolved.

Letters, and other written communication, can be misunderstood, potentially leading to an escalation of a simple misunderstanding.

The client relations partner

Firms have a duty to let clients know who the client relations partner is, and also to make their internal complaints procedure available on request. Even if a client does not request the internal procedure, it is sensible to issue a copy after a meeting about concerns where it is clear matters have not been resolved. The client should be encouraged to contact the client relations partner.

The client relations partner needs to have a number of qualities, including:

• An ability to listen – listening to and empathising with client concerns is important. If a client believes that the client relations partner is either not listening or not trying to understand their concerns the situation may deteriorate.
• An ability to say sorry – this can often start to build bridges and resolve problems. A client relations partner should also recognise that actually raising a concern is difficult for most clients.
• An ability to look forward, not backwards – resolving concerns is about deciding how matters can be taken forward on an agreed basis. Looking backwards is often not helpful. It can lead to both parties apportioning blame, making the situation worse rather than better.
• An ability to solve problems/think out of the box – the client relations partner needs to establish what the client wants and whether that is possible. Sometimes what the client wants – for example a rerun of the case – may not be possible, but lateral thinking can produce a solution that was not immediately envisaged.
• An ability to analyse the concerns of a client and the work carried out by a colleague. The client relations partner must then reach an independent view, rather than one taken from the solicitor’s perspective.
• Being a good communicator – an ability to use plain, simple, understandable language is extremely important. Clients will not understand legal terms or phrases, so straightforward explanations must be given.
• The respect of colleagues and the authority and assistance needed to carry out the job. Good client care and regular review of systems help the reputation of a firm.

Support should be provided for those who are subject to a complaint, as this can be stressful. Also, staff may not be open to learning from complaints if they are not supported.

A client relations partner will be an asset if he or she reviews concerns independently, resolves those concerns and uses the lessons learned to improve systems and communication within a firm. Such an approach should improve client care and lead to recommendations for new clients.

So why is all this important? In the next article the Ombudsman will expand on this.

CROSS BORDER TORTS, AND THE APPLICABLE LAW IN CONTRACT, FEATURE AMONG THE EU’S CURRENT PROJECTS

Personal injury damages

The draft Rome II Regulation on applicable law in relation to cross-border torts is in the final stages of negotiation, with the European Parliament and the Council going head to head in the conciliation committee. One sticking point has been the question of damages in personal injury cases, particularly traffic accidents. The Parliament’s approach has been to seek to ensure that whilst liability for an accident in, say, Spain would be determined by Spanish law, damages would be calculated according to the law of the victim’s habitual residence, thus ensuring that those individuals living in high-cost countries receive sufficient compensation commensurate to their daily lives. The Council has not supported this approach and it appears that for now the battle on this issue may be lost. The Legal Affairs Committee of the European Parliament is keeping the issue on the table.

“Coherence in contract law”

For some time, the European Commission has been grappling with the idea of how to promote greater coherence in European contract law. At a conference on this theme in early March, strong optimism was expressed for the development of the Common Frame of Reference (CFR), a European contract law toolkit, which would draw together the best solutions based on the common principles underpinning national contract laws. There was also significant support for the development of an “optional instrument” – a free-standing option which parties could choose to use as applicable law. The European Council is expected to adopt a position on this by the end of 2007.

UK opts out

The Rome Convention of 1980 on the law applicable to contractual obligations (“Rome I”) applies to contractual obligations in most situations involving a choice between the laws of different countries. A draft regulation currently before the Legal Affairs Committee of the European Parliament is intended to modernise the Convention, and convert it into an EU legal instrument. The Parliament hopes to be in a position to adopt a report at the July plenary. The German presidency has made the project a legislative priority. The UK Government has decided not to opt in to this proposal for the time being, although it is participating in the negotiations.