Blakeway: Healthy debate
The Legal Ombudsman (LeO) is open to a discussion on it replacing the courts for costs disputes between solicitors and their clients – but would not be in a position to actually do it for some time, its leaders have said.
It is also willing to talk about recent comments by Solicitors Regulation Authority (SRA) chief executive Sarah Rapson about whether the responsibility for handling complaints about solicitors should continue to be split between the SRA and LeO.
In April, an interim report by the Civil Justice Council working party on reform of part III of the Solicitors Act 1974 proposed that LeO should deal with costs disputes [1] between solicitors and their clients worth up to £50,000, instead of the courts.
It acknowledged that LeO was currently struggling to meet its targets for complaint handling. “Nevertheless, our proposed model seems to us to be the most proportionate structure to ensure that clients are provided with varied avenues to resolve their disputes, whilst simultaneously reducing the burden on the courts,” it said.
“However, this model simply will not function unless adequate funding is made available to LeO to facilitate its involvement.”
Ric Blakeway, the new chair of the Office for Legal Complaints, the body that oversees LeO, and LeO chief executive Phil Cain sat down with Legal Futures last week for their first interview. We published the first part [2] of this, dealing with LeO’s performance, yesterday.
Mr Cain said LeO would welcome the debate but as of today, “we’re not financially geared up, we’re not resourced and we haven’t got the right skills to be able to take that on”.
How many such disputes there are is not known. “If we’re asked to take it on, we would require a full debate and understanding as to what that would entail.”
Ms Rapson told MPs [3] in April that she “would love to have a conversation” about who should have responsibility for handling complaints about solicitors.
She said that not only was it “really difficult territory” for the public to work out whether to complain to the SRA (for conduct matters) or LeO (service), but the SRA needed to do “a far better job” in gathering intelligence from complaints.
Mr Cain said he would be happy to have this conversation too but pointed out that anything that needed reform of the Legal Services Act was “probably going to be a medium-term requirement; there’s no time within this Parliament to do that”.
He continued: “So actually we’ve got to look at what can we do in the short term within existing legislation, working with stronger partnerships with the SRA and with others to see how we can provide that clarity to consumers if there is confusion out there.”
Mr Blakeway considered it “healthy” that a debate on the role of an ombudsman in the legal sector was starting.
“That’s an area where the OLC and LeO need to be really proactive and open and say, ‘Look, this is how our role could change. This is how we operate now within the existing Legal Services Act, but at some point in the future that will evolve.”
But it is hard to get away from short-term issues. As we highlighted yesterday, the already large backlog of cases awaiting investigation (as opposed to those suitable for early resolution) is only set to grow in the wake of LeO’s budget settlement for this year.
So is LeO telling the profession to do what it says, not what it does?
Mr Cain responded: “We recognise that challenge and we are doing something proactive about it [the transformation programme]. I want to continue to work with firms so that they can do something proactive to improve some of their complaint handling. So actually you could turn around and say, ‘We are modelling those behaviours because we see the challenges.”
Mr Cain pledged that LeO would “do everything we can to minimise the impact” of a budget increase that it told the Legal Services Board was not enough to maintain the backlog even at its present level. The transformation project, and particularly the use of AI, was key to avoiding these problems in the future.
“We’ve set ourselves a vision for 2030 on how we deliver a sustainable, effective and efficient organisation that’s able to meet the demand requirements that are placed on the ombudsman scheme, but also do it in a way that doesn’t require significant increases in the levy on a year on year basis if demand increases.
“That’s why the investment in technology is so important because it will allow us to increase and decrease our capacity to meet demand as it rises and falls over time.”
LeO finds that the legal services provider failed to handle the complaint properly in nearly half of the complaints it deals with. But this is not quite as clear-cut as it looks and is part of the reason for the model complaints resolution procedure [4] that LeO is rolling out.
“When a lawyer is receiving a complaint, that means something else has got to stop and they’ve got to focus on dealing with that complaint,” Mr Cain said.
“And actually you’ve got some firms out there that are really struggling to understand how they deal with the complaint effectively, which is why the model complaints resolution procedure is designed for [them].”
Often it is the referral to LeO that kicks the provider into action to resolve the complaint and, as we reported yesterday, this could help them avoid a higher case fee.
Both men stressed the importance of lawyers learning from complaints – Mr Cain described them as “an opportunity to improve your services” – and how LeO wanted to use its learnings to benefit the profession.
But the message that complaints are free business intelligence has been given many times over the years and does not seem to have moved the needle. “It doesn’t do anybody any good to say, ‘We’ve tried this before’,” said Mr Cain. “We need to take a fresh approach.”
Like most people, however, lawyers tend to react defensively to complaints.
“That’s quite a human reaction and it actually takes a lot of conscious effort to get the right culture and behaviors around complaints,” said Mr Blakeway. This needed to start from the top and managing partners taking the emotion out of complaints, he suggested.
Mr Cain noted too how the stress of complaints only added to the stress generally reported in the sector.
The number of complaints reaching LeO, even if a record 17,000 do as projected, is still pretty small from a community of some 200,000 or so authorised lawyers. But Mr Cain said this could have an outsized impact on public trust and confidence in the profession.
Surveys show a significant proportion of ‘silent sufferers’ – people who were unhappy with the service they received from their lawyer but did not complain, either to the firm or to LeO.
“So when you look at that proportion, my question is, what is the impact on the trust and confidence on the legal sector in England and Wales? It can have a significant impact.”
But does not LeO’s own performance, with long delays for those matters where a full investigation is needed, also harm public trust and confidence?
Mr Cain stressed ultimately it was a question of trust in the legal sector, not just the profession, and so acknowledged that LeO has to play its part in that. “We’ve got to live and breathe exactly what we’re promoting out into the sector.”
Mr Blakeway added that trust and confidence was not only based on the speed of investigations. “Time matters and [clients] will be impatient for answers, but they also want to know that it’s been looked at impartially, thoroughly, fairly.
“What they don’t want to be is fobbed off with a quick, light-touch investigation that doesn’t do justice to the experiences that they’ve had. That’s a real measure as well and absolutely an ombudsman service is at risk if it just does the stuff in a way that’s not thorough.”
At the same time, a team is reviewing the cases in the backlog to see whether some could be resolved more quickly.