The first line of defence

Many law firms are just not equipped to deal with client complaints, writes Lawyer Line's Mike Frith

In a survey conducted by the Law Society's regulation directorate this summer of 209 firms chosen at random, only 35% had a satisfactory complaints procedure.

A startling 36% had no written procedure.

A further 19% of firms thought they had a satisfactory procedure, while the other 10% were relying on procedures that were years out of date.

These failings are not simply serious regulatory breaches.

They also mean the firms cannot deal professionally with any complaints their clients might raise.

Is it any wonder that so many complainants take the view that they have to approach the Office for the Supervision of Solicitors (OSS), and that, subsequently, so many compensatory payments are ordered?

The requirement for firms to have a written complaints procedure was imposed by the Solicitors' Costs Information & Client Care Code 1999.

This has been a requirement since 3 September 1999, but was recommended practice for years before that.

Two recent policy decisions have heightened the importance of the requirement.

The first was that solicitors who consistently disregard their responsibilities with regard to complaint handling would be fast-tracked to the Solicitors' Disciplinary Tribunal.

The second and even more important decision was taken by the Law Society Council earlier this year.

This was that, in respect of service complaints referred to the OSS after 1 May 2002, if the solicitor's services are found to have been inadequate, the firm involved would normally be required to pay up to 840 of the cost of the OSS investigation.

These two decisions make it even more important that firms have in place a complaints procedure that will at least ensure that they have the mechanism to enable them to deal properly with complaints.

The types of reason given by the 65% of firms in the OSS survey which did not have acceptable complaints procedures were few in number.

Among sole principals, the most common explanation was that, as they were sole practitioners, all complaints had to be referred to them anyway, because there was no one else to deal with them.

Even this is not strictly true.

Some sole practitioners have arrangements with other solicitors, whereby they act as each other's complaints handlers.

It also overlooks the fact that telling a client to whom complaints can be referred is a completely separate requirement of the code.

Those who think that, because they are sole practitioners, they are absolved from having a written complaints procedure in place are overlooking the requirement that they have to give a copy of it to any client who asks for the procedure.

That is basically at the root of the problem with those firms who thought they had a complaints procedure in place.

Usually, they have something in the firm's manual that exhorts staff to deal with complaints.

It may even set out the route a complaint will take.

Typically, this says the fee-earner will deal with the complaint in the first instance and specifies, if he can't resolve it, to whom it will be referred after that.

In those cases, the so-called procedure in effect said nothing more than 'Refer the complaint to Mr X.

He will deal with it.' That is not a procedure.

Often such 'procedures' are in a form that could not be happily given to a client - some contain information that a firm would definitely not want a client to have - and they do not fulfil the functions of a proper complaints procedure.

They do not tell the client what the person handling the complaint is going to do, and, perhaps even more importantly, when it is going to be done.

A large proportion of complaints about alleged inadequate service result from poor communication with the client.

It is folly to repeat the fault when dealing with the consequential complaint.

Other firms are relying on publications that are out of date.

Some have reproduced what appears in Keeping Clients, published in 1997, or even worse, are relying on the even earlier Client Care, a Guide for Solicitors.

The latter is even more dangerous.

Not only was it intended to be only an internal document, and says as much, but it contains grossly misleading information.

It gives the impression that delay and failure to inform are not regarded as grounds for justifiable complaints about service, and ignores the fact that they are their most common cause.

Another common excuse is that the firm must have a satisfactory complaints procedure because it has a Legal Services Commission (LSC) specialist quality mark.

A requirement of this is that the firm should have a complaints procedure.

However, on examination it often transpired that the 'procedure' was nothing more than information telling a client to whom they could complain.

The LSC has confirmed to the Law Society that all firms with the specialist quality mark need to comply with the code to meet the complaints requirement.

From October 2002, firms have also needed to comply with two new elements within the specialist quality mark requirement for complaints.

These are that all complaint procedures must include the definition of a complaint, as well as outline how complaints are to be identified.

The LSC maintains that these additions will help direct firms towards a more inclusive and higher quality approach to complaints, as required by the code.

They should also provide LSC auditors with additional evidence to prompt investigations where the procedure may otherwise be found wanting.

So, what should firms that do not have complaints procedures, or that are relying on obsolete guidance, do to comply with current requirements? They should obtain the free Law Society pamphlet Handling Complaints Effectively and review their complaints procedure accordingly.

Praised for its straightforward language and clear explanations, this publication is also an excellent starting point for any firm that does not have any procedure in place.

It describes the features of an acceptable procedure, advises how to put it in place, and gives examples of procedures that can be adapted to suit firms' individual circumstances.

Copies of Handling Complaints Effectively can be obtained by telephoning the Law Society's practice standards unit, tel: 01527 883264, or e-mail: jackie.dirkin@lawsociety.org.uk

Solicitors who require guidance on whether their firm's complaints procedures are up to scratch should contact Mike Frith at the Lawyer Line service, tel: 0870 606 2588, or e-mail: mike.frith@lawsociety.org.uk

Mike Frith is consultant in client care and practice standards at the OSS