Service with a smile?

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By Legal Futures

1 June 2010


Later this year, the Legal Ombudsman will take over the handling of complaints against all lawyers. But as chief ombudsman Adam Sampson explains to Legal Futures Editor Neil Rose, it is as much about helping lawyers as clients

Sampson: there is still considerable room for improvement on the Legal Complaints Service

Some lawyers are nervous about the Legal Ombudsman (LeO) service, which from later this year will handle complaints made against any kind of lawyer. They fear it will be a cheap and cheerful service run by non-lawyers that will take the consumer’s side at the expense of a just result.

So they will be reassured, at least to some degree, to hear the chief ombudsman, Adam Sampson, predict: “I am going to find myself just as often protecting lawyers from the consumers as the consumers from the lawyers.”

The LeO – effectively the trading name of the Office for Legal Complaints – has been the least high-profile aspect of the Legal Services Act reforms to date, partly because it will not open until later this year (Mr Sampson is working towards October but the election has meant a delay in firming this up).

But it should not be forgotten that the way in which the then Office for the Supervision of Solicitors was handling (or not, as was too often the case) complaints against solicitors was one of the main drivers for reform in the first place. The irony is that the Legal Complaints Service (LCS), as the Law Society’s complaints-handling arm is now called, is currently performing extremely well and well above its targets. So, do we need the LeO?

Mr Sampson is no doubt that we do, because performance is not the only issue; indeed, for Sir David Clementi, whose recommendation this was, it was almost irrelevant – it is the independence of complaints-handling from the profession that is crucial. “The system can be as fair and as efficient as it likes, but if it can’t win consumer confidence then the whole point of the system is wrong,” says Mr Sampson.

In any case, though it has made “huge strides” – and he hopes that some LCS staff will move from its Leamington Spa offices to the LeO’s central Birmingham base –  the LCS is still not perfect, Mr Sampson says. “If you look at the time taken to resolve complaints and at the efficiency levels, and you compare those to efficiency levels and timescales achieved in other ombudsmen schemes, there’s still considerable room for improvement.”

First cut

The LeO will only deal with service complaints (“my lawyer didn’t return my calls”, “my lawyer didn’t tell me how much my case would cost”, that kind of thing); complaints over a lawyer’s conduct will be forwarded to their professional body.

But before complaints get to the LeO, law firms will be expected to have had a go at resolving them themselves, so-called first-tier complaints-handling. This has long been the case but the message has been stubbornly ignored by some practices. So how will it be different under the new regime?

First is a regulatory element: the Legal Services Board, which oversees the LeO, is requiring all approved regulators to ensure their members adhere to decent standards in complaint-handling. Mr Sampson explains: “That is more than just setting a rule, but it’s also requiring the regulators to collect data to determine how first-tier complaints-handling is being done.”

This poses an obvious problem for some of the regulators; many legal executives, for example, are not in a position to control how their firms deal with complaints. “This is very tricky,” Mr Sampson acknowledges. “One of the advantages, however, that we have over the existing complaints-handling arrangements is that we can conjoin complaints… So in the case of a legal executive, it might well be that [he or she] has acted entirely properly, but the firm in which the legal executive is based has not. In which case, a complaint that starts off against the legal executive may end up with a remedy being ordered against the firm.”

Though the difficulties this also throws up for regulators like ILEX in terms of monitoring are actually a matter for the Legal Services Board rather than the LeO, Mr Sampson says the board is aware of this and predicts a “reasonably proportionate” response as a result.

Polluter pays

The second element is that the LeO will not only look at whether the service given by the lawyer was adequate, “but also whether the handling of the complaint was adequate”. This means there may be cases where the complaint over the service was entirely unjustified, but the handling of the complaint was very poor. “And under those circumstances we’d expect to be suggesting a remedy to be paid.”

Another reason why firms will want to handle complaints properly is that if they are referred to the LeO but ultimately dismissed, the conduct of the firm may enable relief from the £400 case fee that it will otherwise have to pay (on a polluter pays basis, although firms will have two “free” complaints a year before the fee is levied).

However, initially only 5-10% of the LeO’s funding will come from case fees and the rest from the levy on the eight professions (although those which generate less than 0.1% of the complaints received by the LeO are exempt, meaning only the Law Society, Bar Council and Council for Licensed Conveyancers are currently liable). In time this proportion will rise, but the concern at this stage is that they simply do not know how the case fees will interact with complaints behaviour and the profession.

“One of the things I’m very nervous about is having a high case fee where there is every likelihood that that may penalise firms, particularly smaller legal aid firms, maybe sole practitioners or firms that are headed up by black solicitors dealing with immigration. There are certain areas of law which we know are more contentious. They lead to more complaints – immigration, crime, those sorts of areas. Firms in those areas are already delicately poised, financially in many cases. If you put a high case fee on there as well, it may act as a barrier to firms being willing to take on potentially difficult clients and it may undermine the financial viability of firms.”

Drilling down

LeO will employ about 350 people once fully staffed, headed by Mr Sampson, a deputy chief ombudsman and six other ombudsman above a cadre of caseworkers, administrative staff and so on. Once complaints reach Birmingham, they will follow a five-step process: contact, allocation, resolution, decision and enforcement. So once contact is made by a consumer, the ombudsman will establish that there is a complaint, what it is about and whether it falls within the jurisdiction of the scheme (the rules are more relaxed than those of the LCS).

Once the complaint is accepted into the scheme and allocated to a caseworker, “our first attempt will be to see whether it’s capable of informal resolution”, says Mr Sampson. “We’d far rather that the complainant and the lawyer came to agreement between them on a mutually agreed basis, than we have to take it through to formal jurisdiction. That’s quicker, it’s cheaper and it’s better for all parties concerned.”

His experience is that once you have drilled down to what is genuinely the point at issue here and what the complainant wants out of it, “very often, when you go back to the person complained about, the reaction is, ‘Oh, is that all it is? Oh well that’s relatively simple then’”.  If that does not succeed, then the LeO would seek to move as quickly as possible to a formal decision, which would be made by one of the ombudsman.

But lawyers should not expect it to be a judicial process, Mr Sampson warns. “That doesn’t mean following formal legalistic processes, taking evidence, sharing evidence with both sides, getting comments at all points on everything that everybody’s said. No, this is a quick and inquisitorial process, designed to elicit sufficient information on which an ombudsman can base a decision.”

Public dilemma

No decision has yet been taken on whether to publish firms’ complaints records or the identity of lawyers and firms who have been required to pay a remedy (curiously the LeO will not use the language of a complaint being upheld or dismissed, even though Mr Sampson accepts that the award or not of a remedy will be seen as a proxy for that). The LCS started down the road to publishing complaints records and then backtracked in the face of considerable opposition, deciding instead to leave it for the LeO to sort out.

Mr Sampson says: “What we don’t want to do is something which creates adverse, unexpected consequences. You could easily, by publication or the threat of publication, for example, encourage law firms to pay off complainants quickly rather than take it to the ombudsmen. You could, by the threat of publication together with the case fee, discourage law firms from taking on potentially difficult clients. We don’t know very much about how consumers would treat information in the public domain about the number of complaints against a particular firm.

Outcomes focused

A common complaint of solicitors with the LCS is that the non-lawyer caseworkers do not understand them or legal practice. Most LeO staff will similarly not be lawyers – although, as the box shows, four of the eight ombudsman are – but “most of the people here will be very familiar with what customer service looks like, both and bad”, says Mr Sampson.

The point, he explains, is to judge the outcomes, not the processes by which that customer service was received – which is consistent with the changes both ILEX Professional Standards and the Solicitors Regulation Authority are making to their codes of conduct

Mr Sampson also allays any concerns that the particular features of the eight legal professions will be ignored amid the reality of the vast majority of complaints being about solicitors. There is to be a memorandum of understanding with each regulator, who will also have a direct relationship with one of the eight ombudsmen tasked to gain particular expertise about that profession. The ombudsmen will be spread around the two-floor open-plan office and staff will be encouraged to seek advice from, say, the ombudsman allocated to ILEX if they are having a problem with a complaint about a legal executive.

Another longstanding issue is the divide between a complaint and what is effectively a claim of negligence, and whether a complaints-handler should deal with the latter. Mr Sampson says negligence is an “intriguing” word because though it is a legal test, the LeO is not there to apply it. “Our job is to determine whether the customer has received the sort of level of service that’s reasonable in all the circumstances. Now, that’s a different question as to whether there’s negligence involved. Plainly what we are not going to be doing, is substituting our own lay opinion for a well-founded legal opinion of a qualified lawyer. That’s entirely wrong…

“That said, there are plainly going to be cases we come across where the lawyer has simply missed a huge element or misunderstood completely or looked at entirely the wrong bit of law. In those cases, where it is plainly obvious that something has gone wrong and the basic quality of legal service that was given was not up to the level of reasonable decency we’d expect, then we’d expect to give a remedy.”

The level of complaints against lawyers has remained fairly static over recent years (around the 15-17,000 mark against solicitors) and there are concerns that publicity around the launch of the LeO could simply act to encourage people to complain.

Mr Sampson recognises the problem and says “for that reason beyond anything else, most ombudsmen schemes don’t engage in widespread publicity campaigns about their existence”. At this point, he says the priority is to inform lawyers about its existence because “they are as much consumers of our services as complainants are. And we are just as much there to serve the legal profession as we are to serve the consumers”.

This may well be the case and Mr Sampson is clearly keen to emphasise the point, but the reality is that many lawyers take complaints so personally that they cannot see the benefits of the process. That, more than anything perhaps, will be the Legal Ombudsman’s greatest challenge.

An edited version of this interview appears in the June issue of the Legal Executive Journal

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