In the final instalment of our series on the Clementi review, Stephen Ward looks at the problem of complaints - and whether greater sanctions on the OSS and independent handling will make much difference

Maria Kesterton has lived, breathed and slept complaints.

Until recently, she was manager of service complaints handling at the Office for the Supervision of Solicitors (OSS) after joining at the height of the late 1990s, with 17,000 complaints on the overflowing desks at Leamington Spa.

Many solicitors were weak at explaining problems to non-solicitors and tended to talk in legal language, she says.

They were loath to apologise if they thought they were right, even if it made commercial sense to do so.

'I have seen the terrible damage solicitors can do to clients,' she says.

In her current role as customer care manager at national law firm Irwin Mitchell, she knows how many problems can be sorted out with a face-to-face meeting, a sympathetic hearing and a quick offer or apology where needed.

Keeping clients informed on progress and costs saves misunderstandings, she emphasises.

Ms Kesterton also sees that some clients can be downright unreasonable, and that the formal system does nothing to discourage the unreasonable from persisting all the way to the Legal Services Ombudsman.

David Clementi, whose review is considering complaints handling as one of his five key areas of regulation of the legal profession, will be the next to walk over the well-trodden territory of complaints from the public, and it promises to be one of the most intransigent problems.

As a preparatory scoping study prepared by academics and an official at the Department for Constitutional Affairs said in July: 'The weakness of the OSS was said to be a key area of concern by a number of the interviewees; the Legal Services Ombudsman's annual reports have in particular been critical of its deficiencies in recent years.'

The study contemplates a range of solutions from the minimum of changes to the processes within the OSS, through a new oversight of the OSS, to the most radical option - a common complaints regime across all legal services and sectors.

There is also the broader possibility of self-regulation - which is, of course, more than just complaints - being taken away and given to another body.

If it were a Financial Services Authority-style body, as has been mooted, this would mean conduct complaints going to one body (in financial services, it is the authority) and complaints seeking financial redress to the equivalent of the separate Financial Ombudsman Service.

But many take the view that all these possibilities are missing the root of the problem.

Michael Mathews, a former Law Society president from the era in the late 1990s when the heat was turned up by the government for the first time, says: 'I have no doubt the solution to the problem lies with getting a greater percentage of complaints dealt with - in a way which satisfies clients - by the firms which give rise to them.'

Law Society chief executive Janet Paraskeva says the history of delays is now largely in the past, although that history continues to make lawyers an easy target.

'We have reduced the average waiting time to five weeks.

We're not there yet - we still want to get much better,' she says.

An unprecedented interim report last month from the Legal Services Ombudsman, Zahida Manzoor, is more critical.

She says the Law Society has failed to meet all but one of its government-agreed targets for complaints handling in 2003.

Despite what she acknowledged as substantial investment and new initiatives, the backlog of complaints rose from 4,343 at the start of last year to 8,545 in September 2003.

The Law Society argues that the ombudsman is using the wrong figure for 'backlog', which it says should mean cases waiting to be opened rather than cases in progress.

As the number of caseworkers at the OSS increases, it can handle more cases at a time - so the increase is planned and a good thing, says Chancery Lane.

The total of unopened cases stands at 1,883, down from 3,807 in the spring.

The government has been threatening the Law Society for some years with a weapon held in reserve - the option in the Access to Justice Act 1999 to appoint a Legal Services Complaints Commissioner with stronger powers to oversee the OSS.

In September, it finally picked up the weapon, loaded it by appointing Ms Manzoor as the first commissioner, and held it to the head of the Law Society.

Either improve in co-operation with the commissioner or ultimately face substantial fines.

The scoping study's option of 'new oversight of the OSS' has already arrived.

But Mr Mathews is unsure how this addresses the underlying problem.

'As to how the changes will help, frankly I don't know the answers.

'If the theory is that fining the Law Society will make it concentrate more, I don't see how they can concentrate much harder than they have done.

'If it's to frighten the profession into dealing with complaints before they get to the OSS - which I think is where the problem is, sadly - I don't think it will work.'

The fines from the commissioner would be for the Law Society not meeting targets.

'They would then be added to the cost of practising certificates.

'That is a fairly blunt instrument, and would punish the good and the bad alike,' he says.

Ms Paraskeva says there will always be a higher number of complaints about part of the profession, however hard solicitors try to avoid or settle them, because of the nature of the work.

She says: 'We asked [pollster] ICM to undertake work for us recently looking at the high street, in-house and commercial sectors.

What we found was a much greater level of stress in the high street and more complaints about their work.

'This is all to do with the type of work they are involved in - huge numbers of transactions daily.

Many are to do with individual customers at times of stress - conveyancing, divorce, family matters relating to children, probate when somebody has just died.

'You're talking about pressures on the client who's then interacting with the solicitor.

With the best solicitor, it would be odd if there weren't some people left not as happy as they wanted to be at the end of it.'

Accountants have far fewer complaints than solicitors for the same reason that commercial solicitors have few complaints, she says.

'The accountants tend to have business transactions far more akin to our business solicitors.'

So what if complaints handling were taken away from the OSS altogether?

Emma Harrison, the Consumers Association official in charge of its response to Clementi, says it would have the appearance of greater independence, which the client would welcome.

But Ms Kesterton says: 'If you took away the OSS, the function still has to continue in some guise, and the problems don't go away.'

Mr Mathews says solicitors who have contact with the OSS commonly believe it to be biased against them and in favour of the consumer.

There is a perception of bias on both sides, but the results with a body completely independent of the Law Society would probably be similar.

From a law firm's point of view, Ms Kesterton says, if there were one 'gateway' to all legal complaints, it would be easier to explain matters to clients in complaints which concerned, for example, a barrister's performance.

But for most complaints, that is not an issue.

Ms Harrison agrees with the ombudsman that there is no comparable dissatisfaction with complaints handling in other sectors of the legal profession.

There is also the issue of what happens to the more serious conduct complaints, something the profession is likely to want to keep hold of more than consumer complaints.

This is likely to depend on the overall future of self-regulation.

Ms Kesterton says good firms already recognise that money spent on complaints handling is cost effective, both in positive word-of-mouth reputation for having defused a complaint, and in avoiding the negative reputation from a long-running wrangle.

And any businesslike solicitor knows there is a cost benefit in closing any file as early as possible and moving on.

A file with a complaint outstanding, even a hopeless one, is still open.

But she says: 'A lot of firms still do not see things this way.'

Mr Mathews cannot see what more the Law Society can do to reach the unconverted, even if it does face huge fines.

'The ones who are at fault are unlikely to be doing continuing professional development courses.

'Some form of direction onto courses might achieve something at the margin, but it actually needs a belief that this is the right way to deal with things,' he says.

'I rather suspect that [effective complaints handling] comes more naturally to the younger end of the profession than the older end.

In which case, one day it might get solved.' But not, probably, soon enough for the government.

Stephen Ward is a freelance journalist