In the last few months we have seen a dramatic increase in the number of enquiries from practices looking to reduce the impact of what they consider to be malicious complaints progressed to the Legal Ombudsman, including asking whether they can charge complainants whose complaints are dismissed entirely by the LeO, and asking how best to avoid malicious and unmerited complaints. These firms are unimpressed by the Office for Fair Trading and the Legal Services Board’s call for an even simpler complaints regime.

I am not talking about backstreet con-men looking to avoid the comeback of their inadequate professional service but rather reputable, well-managed firms who have already committed and invested significantly in client care, compliance and risk management, many of whom are currently Lexcel accredited or in the process of applying for Lexcel accreditation.

The reason for the increase in enquiries, we understand, is because these practices now consider malicious and unwarranted complaints and the ‘hidden costs’ of the ombudsman regime as a significant risk to their practice.

They have been galvanised by the increasing scope of the ombudsman’s jurisdiction, the broadening categories of complainants and the publication of all complaints and are now not only exploring options to further increase the standard of client service, but also ways to reduce the number of unfounded complaints being made directly to them and then those that are progressed to the LeO. Complainants have nothing to lose in referring a complaint to the LeO. The LeO’s own surprise at the volume of case fees waived (35%), which has led to it removing the ‘two free case’ rule, evidences the potential level of the problem of unmerited complaints, particularly for smaller firms without dedicated complaints-handlers.

With the introduction of the Solicitors Code of Conduct 2007, many firms opted for the easiest and most straightforward option in terms of complying with the prescriptive requirements of Rule 2.05. They spelt it all out, in full, in the middle of their ‘Rule 2 letter’ or, in some cases, provided the entire complaints-handling procedure at the outset. Clients were bombarded with complaints information and, while I have not found a single practitioner who liked that approach, very few firms felt as though doing so was a problem or risk to their practice. Clients therefore had ease of access to very straightforward information on how to complain about the legal services they had received.

In our experience the continuing expansion and power, not to mention publicity, of the ombudsman has woken many firms to the implications of such a carefree and blasé approach to providing complaints information. For many firms dealing with the Legal Complaints Service in relation to unmerited complaints simply posed a cost in terms of management time, with no fee normally payable to the Legal Services Commission unless the complaint was upheld. Unmerited complaints posed little risk to the practice.

With the introduction of the publication of all complaints, whether upheld or not, many legal practitioners currently consider the reputational damage, as well as the time-management costs, as too much of a cost to be ignored and simply left to the commitment of an excellent service. ‘Bill chippers’ and ‘serial complainants’ are on the agenda. In addition to these hidden costs too many have also lost sight of the LeO’s remaining discretion to waive case fees and have instead latched onto the headline that the LeO has scrapped the ‘two free cases’ rule.

The effect is that practices are increasingly looking to publish complaints information in a manner that allows genuine feedback and for them to address service concerns, is compliant with the SRA Code of Conduct 2011 and satisfies the LeO but which does not in any way encourage complaints. They are no longer willing to accept the principle of having ‘Please feel free to complain about us’ all over their documentation.

The result is likely to have the opposite effect to that desired by the LeO, with firms reducing the visibility of complaints information and/or spending less time trying to appease what it considers to be unmerited complainants because they feel that the complainant is likely to complain to the LeO in any event. If this is the attitude and approach taken by those firms committed to providing excellence service and to dealing with genuine client feedback in a constructive manner, how will those less diligent and committed approach the risks and ‘hidden costs’ of the LeO?

The LeO’s increasing presence in the marketplace, its creeping jurisdiction and its ever-increasing power, is putting it at loggerheads with some of the very best service providers in the market. In doing so it is shooting itself in the foot in hindering its own objectives and the objectives of the LSB.

Practices feel that the balance between encouraging genuine complaints and protecting practices from malicious and unmerited complaints has not been achieved and they are now looking to protect themselves as best as they can.

I feel that the new trend in attitudes may be worthy of further research and discussion throughout the profession.

Matt Rowley is lead associate at LBS Legal