Law Society Issues New Practice Note on Complaint Handling

The Law Society has issued the Following Practice note to assist firms in Handling Complaints . All Firms will be well advised to follow the guidance here in providing a comprehensive and transparent Complaints System which will satisfy the Legal Services Ombudsman .

 

Handling complaints

13 August 2013

Contents

1 Introduction

1.1 Who should read this practice note?

This practice note is relevant to managing partners, practice managers and all employees involved in responding to complaints.

 

1.2 What is the issue?

Chapter 1 of the Solicitors’ Code of Conduct 2011 requires that all practices have a process for responding to client complaints. However, there are several further reasons why good complaints management is essential for a practice wanting to remain competitive.

 

1.3 Professional conduct

The following sections of the SRA Code are relevant to this issue:

  • Chapter 1 – Client care

 

1.4 Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society’s Practice Advice Service.

 

1.5 Terminology

Must – A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

  • Outside of a regulatory context, good practice for most situations in the Law Society’s view.
  • In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May – A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code – SRA Code of Conduct 2011

2007 Code – Solicitors’ Code of Conduct 2007

OFR – Outcomes-focused regulation

SRA – Solicitors Regulation Authority

IB – indicative behaviour

Overseas – outside England and Wales

A glossary of other terms used throughout this practice note is available on the SRA’s website.

 

2 What is a complaint?

A complaint can be any expression of dissatisfaction. Firms tend to focus on formal complaints: letters or emails that clearly state that they are a complaint. However, many complaints are initially made informally, like a person phoning to say that a minor matter has not been dealt with within a stated timescale.

While this person may not be making a formal complaint, they are expressing dissatisfaction about an element of service that they have received. You should try to pick up on these cues and deal with the issue promptly, if possible.

You should explain to the client how the problem might be resolved informally, as well as highlighting the formal complaints process where necessary.

 

3 Why is good complaints handling important?

The Legal Ombudsman found that 82 per cent of clients would choose a lawyer based on the recommendation of friends, family or colleagues (PDF 263kb), so it is important that clients are satisfied with the service they receive.

Nobody’s perfect, and there will be times when clients are dissatisfied. If you pick up on this dissatisfaction and resolve issues as they arise, then clients are more likely to recommend your practice to others.

The Principles require you to cooperate with the Legal Ombudsman. They also require you to act with integrity and maintain the public’s trust in the profession.

Handling complaints effectively and fairly is an important part of maintaining trust in the profession. Chapter 1 of the SRA Code includes outcomes that must be met in relation to complaints handling. It states you must deal with client’s complaints promptly, fairly, openly and effectively (O1.11). It also requires you to provide clients with information on the complaints handling process (O 1.9 and 1.10). Thus, there is a regulatory imperative to handle complaints well.

A Ministry of Justice survey (PDF 970kb) found that only one in five clients who are dissatisfied with their legal service provider choose to make a formal complaint, and aLegal Services Board survey (PDF 6.8MB) found that more than half choose to do nothing at all.

However, you should never ignore complaints, even if they appear very minor. Your client may escalate the complaint, and even if they don’t, they may share their dissatisfaction with others, damaging your firm’s reputation.

The Legal Ombudsman will consider how you have handled a complaint when reaching a decision about a matter referred to them. Failing to deal with a complaint properly may lead the Ombudsman to consider that you have provided poor service, even if the initial complaint was unfounded.

 

4 Who can complain?

Most complaints to a practice are likely to come from clients. However, others, including beneficiaries, third parties, other professionals and suppliers, may also complain. You must handle complaints from clients in accordance with the Code.

The Legal Ombudsman will accept complaints from individuals and small businesses, charities, clubs, societies, associations and trusts.

If a complainant has referred a complaint to the Legal Ombudsman, but is no longer able to pursue it, someone else can continue the complaint in some circumstances, such as if they have lasting power of attorney or are the executor of the complainant’s will.

While the Legal Ombudsman only accepts complaints from certain sources, you should consider all complaints regardless of the source. Complaints about service can highlight problems or areas for improvement within your practice, and handling these complaints well may protect the firm’s reputation.

There is more information about the Legal Ombudsman including information on who can complain in section 11 of this guide.

 

5 Telling clients about their rights

Outcome 1.9 in the SRA Code says that you must inform clients in writing of their right to complain and how complaints can be made at the outset of their matter.

Outcome 1.10 says that you must signpost your client, in writing, to the Legal Ombudsman at the start of the retainer and at the end of your complaints process. You must provide clients with details for contacting the Legal Ombudsman and the timeframe for doing so.

Clients must be informed of their right to complain about or challenge their bill. Clients can challenge their bill by applying for an assessment of the bill under Part III of the Solicitors Act 1974. You should inform clients that the Legal Ombudsman may not consider a complaint about the bill if a client has applied to the court for assessment of the bill. You must also inform clients about when you may be able to charge interest on all, or part of, a bill.

 

6 What are clients’ most common complaints?

The Legal Ombudsman publishes data about the complaints it receives. The Law Society analyses this data and highlights common areas of complaint.

 

7 Complaints handling process

7.1 Who should handle a complaint?

This will depend on how the complaint is made, to whom it is made and what is about.

All staff should understand the complaints process and their role in it. Not every complaint needs to be dealt with through a formal process: if a practice receives a complaint about a failure to return a phone call, for example, this may be resolved by the recipient promptly calling back and apologising.

However, if the complaint is in the form of a formal letter to the partner responsible for handling complaints, then a response in accordance with the formal complaint-handling process from a senior member of staff is probably more appropriate.

Staff should be aware of when they should handle a complaint, and when it should be dealt with by a more senior member of staff or a third party. They should also be made aware of the importance of resolving complaints where it is appropriate for them to do so, rather than passing on the complaint.

Research by Consumer Focus has shown that it is important for clients to feel that a named individual has taken ownership of their complaint, and that proper records mean that they do not have to repeat their story.

 

7.2 Understanding a complaint

Research by Consumer Focus shows that 39 per cent of people complaining to a legal services firm end up not being satisfied with their provider’s understanding of their complaint.

Understanding what a client is complaining about can often be more difficult where it is made via a less formal method, as opposed to a letter of complaint.

When receiving a complaint by phone, you should listen to the client carefully and ask them to clarify where necessary. You should also think about any issues that might underlie the complaint: the client may be anxious about their case, have a limited understanding of the legal process or have limited funds.

 

7.3 Acknowledging a complaint

In some cases, you will be able to deal with a complaint rapidly – for example, if a client complains about a failure to return documents, returning them may resolve the complaint.

However, in more complex cases, you may need longer to consider the complaint. In these cases, you should acknowledge receipt of the complaint.

This acknowledgement can be an opportunity to:

  • Clarify your understanding of the complaint and what the client wishes to occur.
  • Explain the next steps of the process.

You should aim to acknowledge complaints within two working days of receipt. The acknowledgement should set out timescales for resolving the complaint, and may give the complainant options as to how a complaint might be resolved where applicable. For instance, there may be informal or formal routes to resolve a complaint.

You should provide:

  • Information about what to expect.
  • A realistic timetable.
  • A full explanation of what is being done to address the complaint.

Many clients worry that they will be charged for the complaints handling process. You should reassure them that they will not be charged and explain what, if any, affect the complaints handling process will have on their case.

 

7.4 How should I investigate a complaint?

If possible, the person investigating a complaint should be independent. Research has shown that involving another solicitor from the practice improves complaints handling and is welcomed by clients.

In any event, you should approach any complaint with an open mind. Treat each complainant as an individual and each complaint on its merits. A complaint may be from a ‘difficult’ client but that does not mean that it is not a valid complaint.

You should record how you investigated the complaint and what you found out. The Legal Ombudsman may wish to look at these records if the complaint is brought to them

You must respond to a complainant within eight weeks. If you do not respond to a complaint within this timeframe then the client can take their complaint to the Legal Ombudsman.

 

7.5 How should I respond to a complaint?

Most clients expect the response to their complaint to mirror the form that the complaint was made in. If a complaint was made via email, the response should normally be via email, unless the complainant has requested otherwise.

It may be useful to restate your understanding of the complaint at the start of response. The response should be easy to understand and set out not only your decision, but how you came to your decision.

If you find evidence of poor service you should acknowledge this and provide an appropriate remedy. This might include:

  • an apology
  • compensation for loss suffered
  • compensation for inconvenience, distress or both
  • putting things right
  • reducing the bill or limiting fees.

If you find that there has been no poor service you should fully explain why you have come to this conclusion. You may wish to provide evidence of why the service was reasonable.

For instance, delays in a divorce might be due to the other side not responding within a given timeframe and not to any poor service on the part of your practice. If so, you should explain this fully.

You must signpost your client to the Legal Ombudsman at the end of your complaints process. You must also provide clients with details for contacting the Legal Ombudsman and the timeframe for doing so (O 1.10).

 

7.6 Saying sorry and professional indemnity insurance

Apologising to a client who has made a complaint about a minor matter can lead to the complaint being resolved quickly and help to maintain goodwill.

However, where the complaint relates to a matter that may involve negligence on your part, you should consider whether an apology could be seen as an admission of liability.

Any admission of liability may have implications for your professional indemnity insurance, so you may want to discuss any actions you plan to take with your insurer.

You should bear in mind your duty to notify your insurer about the complaint and the proposals for its remedy. You should not make an admission of liability for a complaint involving negligence on your part without the agreement of the insurer.

 

7.7 Ceasing correspondence

You may cease correspondence with a client about a complaint if you are satisfied you have dealt with it fully.

Before ceasing correspondence, you should be satisfied that their complaint has been fully considered by the practice, a decision has been made, remedies have been offered if appropriate and appeal options have been either taken up or ignored.

Before taking this option, you should be willing to correspond with them about the outcome of your consideration more than once.

If you decide to cease corresponding with a client in relation to a complaint you should write to them, including all of the following:

  • A brief outline of their complaint.
  • The decision that has been made and how you reached it.
  • What remedies were offered, if any.
  • An explanation that in the absence of new evidence, you will not continue to correspond with them on the matter and that you regard the complaint as closed.
  • A statement saying that you will monitor any further correspondence for new evidence or areas of complaint not previously considered, and make a note of your consideration. If further evidence or areas of complaint are raised, you will assess this information and consider appropriate action.

 

7.8 Maintaining an ongoing relationship with your client

If a client seeks to re-instruct you or to continue with a retainer where matters remain unresolved, you should consider whether you can continue to act under the circumstances.

Consider whether you can effectively quarantine the dispute from the rest of the retainer, or whether the relationship deteriorated to the extent that you should not continue to act for the client.

The SRA’s Professional Ethics Helpline can offer advice on refusing or ceasing to act for a client.

 

8 Do I need a complaints management procedure?

(IB 1.22) of the SRA Code indicates that you should have a complaints procedure which:

  • is brought to the client’s attention,
  • is easy for clients to understand and use,
  • is responsive to the needs of vulnerable clients,
  • allows complaints to be dealt with promptly and fairly,
  • allows for appropriate remedies and
  • makes clear there is no charge for complaints handling.

Putting a complaints procedure in place will help staff handle complaints, and will provide you with a document that you can share with clients that to help them understand the process. It should be easy to understand and include details of the process, including timeframes and contact details.

You should provide your procedure to clients on request or when they make a complaint. It may help to publish it on your website.

Internally, depending on the size of your practice, you may require more detailed procedures. These should comply with the public policy, but will outline:

  • How complaints are to be recorded and filed.
  • Who needs to be notified, internally and externally, about different types of complaints.
  • Who has authority for dealing with complaints.
  • Timescales for investigating the complaint and responding to the client.
  • Circumstances in which complaints should be escalated within the practice.
  • Circumstances in which no action will be taken on complaints or communication with a complainant will cease.
  • Guidelines on appropriate remedies.
  • Training requirements for staff on complaints management.

You should regularly review your procedure to ensure it remains effective.

O(10.6) in the SRA Code states that you must cooperate fully with the SRA and the Legal Ombudsman at all times. O(10.7) sets out that you must not attempt to prevent anyone from providing information to the SRA or the Legal Ombudsman.

Chapter 7 of the Code, on management of your business, must also be considered.

 

9 How should I record complaints?

Keeping good records of complaints that you receive provides you with useful data and will allow you to identify any problem areas in your business.
The SRA has collected data on complaints from practices as part of its renewal process. It has categorised complaints into the following areas:

  • Conduct
  • Costs information deficient
  • Costs excessive
  • Criminal activity
  • Data protection
  • Delay
  • Discrimination
  • Failure to advise
  • Failure to comply with agreed remedy
  • Failure to follow instructions
  • Failure to investigate complaint internally
  • Failure to keep informed
  • Failure to keep papers safe
  • Failure to progress
  • Other

You may wish to collect data in the same format, so that it is easy to submit such information when it is required by the SRA. However, the categories that the SRA uses may be subject to change.

You should also review the information you collect on complaints received by your practice. By regularly reviewing this information, you can:

  • Identify trends in complaints and areas of service needing improvement.
  • Assess whether policy or procedure changes are reducing the level of complaints.
  • Assess the effectiveness of your complaints management process in resolving complaints internally.
  • Build up an understanding of appropriate remedies to common complaints.

 

10 What is the Legal Ombudsman’s role?

The Legal Ombudsman is an independent ombudsman scheme that resolves complaints about lawyers. It was set up under the Legal Services Act 2007.

 

10.1 The Ombudsman’s process

The Legal Ombudsman will normally only consider a complaint after the complainant has made the complaint to the practice and the practice has failed to resolve it to the complainant’s satisfaction.

Once a complaint is referred to the Legal Ombudsman, a caseworker at will investigate the complaint and make recommendations.

If the complainant and the lawyer accept these recommendations, then no further action will be taken. If either side does not agree with the recommendations, then the case can be taken to the Ombudsman for a decision. If the complainant accepts the decision then it is binding on the lawyer.

 

10.2 Remedies

The Legal Ombudsman can order a lawyer to:

  • apologise
  • pay a specified amount for loss suffered
  • pay interest on that compensation from a specified time
  • pay a specified amount for inconvenience/distress caused
  • ensure that (and pay for) any specified error, omission or other deficiency is put right
  • take (and pay for) any specified action in the interests of the complainant
  • pay a specified amount for costs the complainant incurred in pursuing the complaint
  • limit fees to a specified amount.

The Legal Ombudsman can order compensation of up to £50,000.

 

10.3 What complaints can the Ombudsman consider?

The Legal Ombudsman can consider complaints about services provided by a regulated lawyer to:

  • the complainant
  • another authorised person who procured them on behalf of the complainant
  • a personal representative or trustee, where the complainant is a beneficiary of the estate or trust
  • a complainant who was offered, or refused, legal services.

This is a wider remit than its predecessor and means that, in some cases, it can consider complaints from non-clients and prospective clients. It may also be able to consider complaints about services other than legal services.

We have published additional guidance on handling complaints from prospective clients.

The Legal Ombudsman will not normally consider complaints that are more than six years old, or where it is three years since the complainant ought to have been aware of the problem).However, this limit is being introduced gradually, and the matter being complained about must have happened on or after 6 October 2010. If the problem happened earlier than this date, you must not have been aware of it before 6 October 2010.

 

10.4 Prospective clients

Prospective clients can complain about an unreasonable refusal to provide service, or if they are unreasonably offered a service they did not want.

Reasonable reasons for refusing to provide a service include:

  • You do not undertake that type of work.
  • The client is unable to fund the work required.
  • You are too busy or do not have time to do the work.
  • Ethical, regulatory or other reasons to refuse (eg suspicion of money laundering, conflict of interest or insurance issues).
  • The case is too complex or difficult or you do not have the relevant skills and experience.

There may be other reasonable reasons for refusing to provide a service.

Further guidance about refusing work can be found on our website.

 

10.5 Case fees

From 1 April 2013, all firms that the Legal Ombudsman investigates will incur a £400 case fee.

If a firm follows a reasonable first-tier complaints process, the Ombudsman may waive this fee. For this reason, it is important that you follow your complaints handling procedure fully and offer compensation where appropriate. Even if you don’t feel a complaint is justified, you should still ensure that you follow your complaints procedure. The Legal Ombudsman will not waive a case fee where it finds you have not handled a complaint properly, even if that the complaint is found to be unjustified.

 

11 More information

11.1 Lawyerline

Lawyerline is a service run by the Law Society offering advice on client care and complaints handling. They can help you to avoid complaints, be proactive with client care, and effectively handle complaints if they arise. They can be contacted on 0870 606 2588 from 09:00 to 17:00 on weekdays or by email at[email protected].

 

11.2 Other Law Society products and services

  • The Law Society’s CPD Centre offers information about client care and complaints management.
  • Lexcel is our practice management standard, awarded to practices meeting the highest management and customer care standards.
  • The Law Management Section offers support and training to members.

 

11.3 Other sources of information

The SRA’s Professional Ethics Helpline offers advice on conduct issues.

The Legal Ombudsman’s website also provides guidance on complaints handling. In particular:

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