A new monthly column featuring practical advice and case studies from chief ombudsman Adam Sampson and his team

At last, just before Christmas, the Legal Ombudsman cranked properly into business.

Although we had begun receiving complaints some three months before, it was only on 23 December that we actually made our first decision: a £150 remedy ordered for a poor transaction around conveyancing.

Nothing startling; nothing spectacular. Just a minor error and a minor consequence.

And that, indeed, has been the pattern so far. In the thousands of complaints we have seen and the hundreds of decisions we have made (there is a necessary time lag between the work coming in the door and the resolutions being agreed), little has arisen that we had not expected.

The pattern of complaints is largely unchanged from the days of the Legal Complaints Service.

Conveyancing, family law and litigation remain the main areas of work. Most of the complaints raised with us are premature, with the complainant not yet having raised them with the lawyer concerned.

The vast majority of those we do accept for investigation are, pleasingly, being settled by informal agreement (and genuine agreement – we are very conscious of the need not to put either lawyer or complainant under pressure to sign up to an outcome with which they do not agree).

Our decisions are now settling down into a reasonably predictable pattern, some reaffirming that the service was not flawed, some requiring lawyers to provide redress (financial or non-financial) to the complainant.

None of them yet has been groundbreaking; none worthy of national attention.

This is not to say that we have not begun to pick up some useful lessons from our first few months. Already one thing is clear: if solicitors want to avoid receiving complaints – and particularly complaints that end up with the ombudsman – one of the first things to focus on is the way they approach costs.

Consider the following examples, which include the very first decision we made.

First ombudsman decision

Ms S bought some property overseas ‘off plan’ but ran into trouble when she found the developers had breached their contract. So she employed a firm of solicitors to negotiate a settlement with the developers.

She agreed to pay £1,000 for the negotiations and another £5,000 for any subsequent case brought to court.

Ms S was later told that if she wanted the firm to negotiate further on her behalf it would cost £7,500 – some £1,500 more than she had originally agreed. Added to this, Ms S was not happy about the firm asking for Power of Attorney.

This would allow them to accept a settlement on her behalf without her agreement. She complained (first to them and then to us) that she hadn’t been kept up to date, nor was she sure what her solicitors had actually done for the money.

When we came to look into Ms S’s complaint, we found that, for the most part, the solicitor had provided a satisfactory service.

However, they had not told Ms S that her costs might increase, and had not sent her a client care letter that set out what they thought the costs might be, or that they might change if certain things happened. We recommended to both parties that the firm should pay Ms S £150 in compensation.

Ms S was initially unhappy with our suggested resolution and asked for an ombudsman’s decision. The ombudsman agreed with the original conclusions of the investigation.

They decided that the solicitor should pay Ms S £150 in recognition of the firm’s failure to provide sufficient cost information from the outset. Ms S accepted this decision.

Take extra care

That’s just one way in which costs information can cause concerns that might give rise to a complaint. Another area in which we are seeing complaints is in relation to retainers.

We’re finding consumers may be confused at times about the purpose of the retainer, and what their solicitor has (and hasn’t) agreed to do for them.

Mr J went to a solicitor after his aunt died of a heart attack in her care home. She was in her 90s. Her family disagreed with the cause of death and asked for an inquest.

They thought Mr J’s aunt had died because of negligence by the care home.

Mr J appointed a solicitor and paid an amount upfront, including a separate fee for an expert witness to give medical evidence. But the expert witness did not agree with the family’s allegations. So the solicitor pulled out, refusing to go into court with Mr J.

The main complaint was that the solicitor had not represented Mr J in court, which is what he said he was led to believe would happen. Following this, Mr J received a further bill of £700.

We found there was a misunderstanding between the client and solicitor right from the start over the exact purpose of the retainer. Mr J thought it would take him up to the date of inquest and would include representation.

But the solicitor believed he had made it clear from the beginning that he was employed at first only to advise Mr J. The solicitor’s view was that he would only attend the inquest – at extra cost – if medical reports were favourable, which they turned out not to be.

There were two bills in this case. We thought the first was clearly evidenced and reasonable for the solicitor to charge. But we didn’t think the position was so clear regarding the second bill – nothing seemed to specify what this bill was for.

In fact we thought it might be possible that it had only been charged because Mr J decided to complain, which was taking up more of the firm’s time.

What happened when we looked into it? We suggested to both parties that the second bill should be waived completely, but that the first bill should stand. Both sides agreed to this and the complaint was resolved this way.

Seek and ye shall find

We’re finding that issues that crop up around costs aren’t just about bills as such; but that people who come to us are confused about what has been agreed at an initial meeting.

And it doesn’t have to be in the context of something more complicated like a retainer; it can arise in any transaction, simple or complex.

In another of our cases, Miss F, a private landlord, came to us after she had been to a solicitor for advice on how to deal with a tenant she believed was breaching the terms of his contract.

She thought the meeting was arranged just to seek advice – nothing more. Her understanding of what had happened was that she had not given the solicitor any instructions during that meeting and received no estimate of costs from them at the time.

Some time later, Miss F received a bill for over £400. This included a charge of around £200 for the initial meeting and another £175 for a letter that was sent to the tenant. But she says she did not ask for a letter or anything else to be done at that meeting.

Although she did eventually receive an estimate for this bill, this wasn’t until a few days after the actual bill was sent. Miss F said that she would not have gone ahead with the meeting if she had been made aware of the costs.

What happened when we got involved? Both parties agreed that £100 should be refunded to Miss F. But, more interesting, given that this case had been through a firm’s in-house process and then to us, was how easily any confusion could have been avoided early on in the process.

What does all this mean in practice?

There is a common fallacy that ombudsman’s decisions are all about singling out the wicked and the incompetent and punishing them for their sins.

These cases show how far from the truth is that cartoon depiction. None of the service failings we identified was deliberate; none of the solicitors was incompetent.

In truth, our role is both more banal and more important. For the consumers, we offer access to redress or, at the least, an explanation of why their concern is misplaced.

For the lawyers, we offer a mechanism for helping them manage individual complainants and, more particularly, a way of feeding back to you, the profession, on how you can avoid complaints.

The cases alluded to here do highlight the vital importance of the client care letter. It is this letter that sets out the terms of the contract (and, being a layman, I am not here using the term in its strict legal sense) between solicitor and client, between service provider and service consumer.

The client care letter says – or rather should say – what service will be provided, for what cost, in what period, and to what standards.

And because legal proceedings are, by their very nature, unpredictable, the letter should also set out how the consumer will be kept informed about progress and the changing costs of the work.

Get that letter right, and you have taken a massive step towards avoiding an unhappy customer and ensuring the endorsement of the ombudsman.

Adam Sampson is the chief Legal Ombudsman