The last few months of 2017 saw much coverage in the legal press about the commitment of both the Solicitors Regulation Authority and the Legal Services Board to require firms to be more transparent with clients in relation to the costs of their services – particularly in areas such as conveyancing, wills and family law. To judge from the below-the-line comments on a number of articles, the proposals have met with a mixed reception among practitioners.
They have also, however, triggered a wider discussion among the profession about the need for solicitors and firms to be open and transparent with clients in other areas. One area of particular interest in this sphere is the question of how firms are to respond to online reviews left by clients on review websites.
Transparency in dealing with complaints and client feedback is rightly seen as a feature of firms that are committed to improving standards of service and client care. An increasing part of the feedback loop is made up of reviews posted on review websites. These sites provide a developing space where clients can upload their experiences of solicitors and firms, and share information among would-be clients. In some instances, reviews provide constructive criticism of the performance of firms and solicitors. Motivated, outward-looking firms and solicitors who embrace review websites can then use those critiques to analyse their practice and raise standards.
However, the increased activity on these review websites raises unanswered questions as to the regulatory consequences of negative reviews. How much attention might the SRA pay to negative reviews? And how will such reviews be judged by the regulator? These questions are particularly significant when reviews suggest potential breaches of the SRA Principles.
The SRA encourages clients to raise complaints about quality of service with the Legal Ombudsman. Where the LeO finds a complaint that raises professional conduct issues, it can pass the matter on to the SRA. The regulator also asks that clients only raise with it directly matters where the principles may have been breached. In practice, clients have the further option to raise issues directly with firms under their complaints policies.
Particular issues arise where a client has not gone through these established channels but has instead posted a review online setting out a complaint which, on the face of it, includes allegations of breaches of principles and which, if made directly to the SRA, might be investigated.
How will the SRA respond to such reviews? Will it continue to rely only on established methods of notification of potential conduct issues? Or will it be more proactive, monitoring review websites and approaching firms on the basis of those reviews?
Would all reviews suggesting breach of principles be investigated, or will the SRA apply threshold criteria before investigating? If so, what do those criteria look like? And does a client’s failure to go through established channels mean the negative content of a review is any less meritorious?
In the case of reviews left anonymously (as permitted by some websites), might the SRA require the firm to identify the client and matter in question to enable the regulator to look into the issue?
A further complication is the risk that some negative reviews may be fake, malicious or exaggerated. By the same token, it is conceivable that some firms may seek to enhance their reputations by posting or encouraging others to post fake positive reviews, even perhaps adopting the ‘praise’ by using it as promotional material on their websites or elsewhere. The Competition and Markets Authority estimates that 1%-2% of reviews are fake (positive or negative). Therefore the effectiveness of steps taken by review websites to minimise this risk is also in issue.
Some review sites do have safeguards in place to protect against obviously false reviews – for example by requiring an email address on submitting the review or by engaging with the individual directly before publishing the review – but these are not filters which will reliably intercept false, malicious or exaggerated negative reviews in every case.
If the regulator takes a proactive approach, both the SRA and those about whom allegations are made online may well sink considerable time and resources into dealing with them: the SRA by monitoring reviews and engaging with firms; the firms by investigating and reporting back. It is unclear if data exists about whether online reviews have resulted in disciplinary action and therefore whether such resources would be well spent.
None of this is to say that transparency is not welcome or necessary, or that reviews posted online are generally unreliable. It is simply to raise the question of how the SRA and firms are to interpret and, if appropriate, act upon the publication of negative reviews which call into question compliance with the principles. Nor is it to say that firms should want to suppress genuine negative reviews online rather than reduce their number by raising standards.
It may be a judgement call in each case, dependent on the nature of the allegations and potential breach of principles; but it appears to be a live issue and one the profession and the SRA will increasingly have to wrestle with as the ‘tripadvisorisation’ of the market progresses.
Gideon Habel is an associate solicitor at Leigh Day. He was a lead solicitor on Leigh Day’s internal legal team during its successful defence of the SRA’s investigation and prosecution before the SDT (@Gideon_Habel)