The older I get, the more I feel uncomfortable about the binary nature of our discourse. OK - a pretentious sentence, even by my standards. What do I mean?

Take the way the media handles stories. Sitting in radio and TV studios the other day talking about the report we had launched on legal costs, I was struck yet again about how often the media try to force stories into a simple ‘lawyers bad, clients good’ formula. No matter how often I tried to explain that the vast majority of lawyers are deeply committed to providing first-rate customer service and that, once in a while, the issue is as much the unreasonableness of the complainant as the behaviour of the lawyer, the interviewer would return to the previous formulation. Even the simple statement that most lawyers give good service would get lost.

But it is not just journalists who return to the simple yes/no, black/white, right/wrong formula. Lawyers do it too. Accustomed to a court process that distinguishes absolutely between guilt and innocence, lawyers will often approach our service as though our job is to pass verdict and impose punishment on transgressors. That attitude runs very deep: we have already seen signs that we will be under pressure in our upcoming consultation on whether and how to tweak our case fee structure to embed a ‘polluter pays’ ethic, increasing the burden of costs on the lawyers who are deemed to have sinned by having complaints go to the ombudsman.

But rarely do the cases we see lend themselves to such simple binary judgements. Most of what we see is not the result of wicked people doing wicked things. It is mistake, error, miscommunication, failure not of intention but of execution. For the profession, our role is therefore not to punish (although our role in respect of the consumer will be to try to put things right for the individuals who require redress). It is to try to help - to feed back information about what is going wrong and what lawyers might do to put it right. You pay us - and I am acutely aware that the money we spend is money which you have provided - not just to take some of your more persistent dissatisfied clients off your hands, but also to try to suggest ways where you can stop them being dissatisfied in the first place.

And if our first 18 months have taught us anything, it is that the single biggest reason for dissatisfaction is cost. Which is something of a surprise: the proportion of costs complaints received by the Legal Ombudsman far outstrips the proportion going to the Financial Services Ombudsman or Surveyors Ombudsman, to name just two. How can a profession that specialises in presenting facts so clearly and elegantly be failing to communicate clearly about one of the most basic aspects of its customer service?

The answer seems to me to be a combination of factors. First, there is the intrinsic unpredictability of legal services. Fixed price for a legal service, which is undoubtedly the sort of pricing many customers prefer, is problematic in an area where the cost of, say, a divorce depends critically on the approach taken by the estranged partner. While many of the more commercially astute firms are moving towards a more predictable price model, there will always be limitations to how far that is possible.

If the first reason is not easily overcome, the second is entirely the result of an entrenched legal culture. Law has been slow, it appears to me, to understand the sophistication of customer pricing present in other areas of professional services. Some firms are wedded to an hourly pricing structure for no other reason than it is the structure they are used to. Forget the fact that many customers simply do not understand - or trust - a habit of charging by the hour (let alone charging by six-minute intervals). That way works for the profession and that is the way it has always done it. It is the customer’s job to adapt to the profession, not the profession’s job to adapt to the customer.

But not only does that create problems of trust and clarity, leading to complaints. It also makes it difficult for clients to control their costs, leading to a position where some come to the end of the case in complete (and, yes, sometimes wilful) ignorance of how much the bill is likely to be. And since some of those customers are unable to pay, lawyers not only have to deal with the complaints but also the cost of enforcing their bills.

So anything which helps to drive down complaints, at the same time contributing to a law firm’s overall quality of customer service and reducing their enforcement costs, is a win/win surely? Try these cases out and make up your own minds.

Keeping up to date

Ms E bought an overseas property ‘off-plan’ but then the developers breached the contract. She employed a lawyer to negotiate a settlement with the developers. She agreed to pay £1,000 for the negotiations and another £5,000 if the case went to court. The firm then told Ms E that if she wanted the firm to negotiate further on her behalf it would cost £7,500. That was more than £1,500 on top of what she had originally agreed. She complained (first to the firm and then to us) that she had not been kept up to date, nor was she sure what her solicitors had actually done for the money.

We found that, for the most part, the firm had provided Ms E with a satisfactory service and that the extra costs reflected work it had needed to do to follow through what Ms E had asked of the firm. However, it had not told Ms E that her costs might increase; similarly, although the firm had given her information about costs at the outset, the client care letter did not say what it thought the costs might be, or that they might increase if certain things happened.

We recommended to both parties that the firm should pay Ms E £150 in compensation to acknowledge that it could have been clearer with her about the fact that costs can change throughout a transaction. Ms E asked for an ombudsman’s decision. The ombudsman agreed with the original conclusions of the investigation. Ms E accepted the decision and our reasons - and accepted the gesture by the firm to apologise for the fact that it had not explained the costs as well as it should have done.

Complex web

Mr R was a first-time buyer and to keep his costs down he decided to use an online firm of conveyancers. He looked online to compare costs from different companies, and it seemed to be more straightforward than calling around local law firms to look at who to use when he was buying his house. The firm he chose sent Mr R a lot of information and an estimate for a little more than £650. The final bill was more than four times greater than that. It also included costs for work that was not mentioned in the estimate. Mr R had trouble contacting the firm but was eventually able to complain. The firm agreed to reduce the bill but that still left him with about £1,650 to pay.

Mr R told us that he was upset and confused by both the amount and because he could not work out where he stood with the firm. The paperwork was so complicated he felt he had to pay or he would get in trouble. Part of why he was upset was because he had chosen to use this online service because it seemed simpler and more straightforward than a traditional lawyer.

We looked into this complaint, and asked both Mr R and the firm to provide us with the documents that set out the charges and fees. After we looked at these, we agreed that several of the things that the firm had charged for were not included in the estimate. We thought that the costs information was unclear, poorly structured and had been provided in an unnecessarily cumbersome way. However, we also found that most of the costs had been mentioned somewhere else in the firm’s paperwork, just not in the estimate. But overall, how the costs were worked out was unclear, hard to read, and had no relation to the quote Mr R had received.

We decided that firm should refund Mr R £300 - the cost of the searches and expenses that he had not been told about when he employed the firm. We also helped Mr R understand the overall bill and what was included in it. He told us that this helped him feel better about the overall costs because he knew what he was paying for. The firm agreed to this informal resolution and the case was closed.

Hourly rates and ‘disbursements’

Miss L employed a lawyer to act in her personal injury case. The lawyer provided her with his hourly rates but told her that he would be paid for by a conditional fee agreement. The only thing she would have to pay for was a medical report and a ‘success fee’ if she won her case. The time came for the case to go to court and the lawyer told her that she would have to pay the barrister’s fees. Miss L could not afford this and so she decided that the lawyer should stop work. She was shocked when she received the lawyer’s bill, which was for more than £20,000.

Miss L raised her concerns with her lawyer directly, but this did not resolve the issue. So she came to the Legal Ombudsman. The investigator discovered that Miss L was so shocked by the bill because, although the lawyer had provided her with his hourly rate at the start, he had not given her a cost estimate or updates as he went along about how many hours he had spent on the case. He also had not mentioned needing a barrister before, or how much that would cost. We also discovered that he had also added his success fee on to the bill, even though the case did not go to court, which added to the cost.

We were not able to resolve this complaint informally. The lawyer insisted that the bill reflected the time he had spent on the case, based on his hourly charges. This case went to an ombudsman for a formal decision.

The ombudsman ordered the lawyer to deduct the success fee from the bill. The ombudsman’s final decision also ordered the firm to reduce the bill by a quarter, to reflect the poor cost information that it had provided. Finally, it also ordered that the firm should pay Miss L compensation for the shock she received when told she had to pay the barrister’s fees and when she received the bill. Miss L accepted this decision. The firm complied with the ombudsman’s decision.

Complaints matter

To reiterate the sentiments of the guide we produced for lawyers: complaints matter. Case studies such as those above are a rich source of information. Through illustrating what consumers feel they are not getting, they tell you what consumers want. This is why we published our cost report and the guide. It is true that we occasionally see complaints from consumers who just want to pay as little as possible for the service they have received.

More often though, the issues at the heart of a cost complaint are fairness and clarity: have I been charged a fair amount for the service I received? I do not understand the costs information I have been given - or I have not been given any costs information - so how can I can be confident that the cost is fair?

For more information and guidance around good cost practice, please take the time to download a copy of An ombudsman’s view of good costs ­service from our website.