Learning from complaints

With the burden of regulation as it is, firms may be forgiven for having sighed a collective groan of despair last month when the Legal Ombudsman (LeO) reiterated solicitors’ duty to provide costs estimates up front.

Price transparency, after all, has been the buzzword of the sector for some time and the updated rules governing the publication of prices in respect of services such as conveyancing and will writing make such commitments to client care par for the course for many firms.

However, costs remain among the most complained about issues that LeO deals with – around 15 per cent of the complaints the ombudsman sees each year.

The problem, says the complaints handler’s chief executive and chief ombudsman Rebecca Marsh, is less the cost itself and more managing client’s expectations beforehand.

“If I wanted to say something to people, I’d say you need to think about the nature of the service that you are providing”, she says.

Marsh highlights how stressed, and often vulnerable, clients are if they have had to instruct a lawyer. “None of us – no matter how bright, intelligent of capable we are – when we’re in a particularly challenging or fraught situation, are at our best intellectually”, she says.

From Marsh’s perspective, a lack of empathy for clients under the circumstances – and remembering that what may be straightforward and everyday business to a solicitor will be completely new to a consumer – can lead to a failure to communicate in the clearest possible terms, and is often the precursor to the complaints that cross her desk.

“In order to avoid complaints, you need to make sure that you explain to people clearly, and in an accessible way which is suitable for that client, what all the likely implications and associated costs are. You need to check that they’ve understood it and keep in touch so that they know that you are progressing their cases”, she explains.

“I’d absolutely avoid jargon of any sort and I wouldn’t make assumptions about people’s knowledge and understanding”.

In fact, LeO figures show that poor communication accounts for the greatest proportion of the top five complaints received by the ombudsman each year. In 2017/18, communication accounted f or 17 per cent of client care complaints, which significantly exceeded the next most common complaints, relating to delays at 24 per cent. [See table]

First line of defence

For Amanda Garner, compliance manager at PI-firm Bolton Burden Kemp (BBK), an emphasis on good communication with clients, is key to her feedback and complaints handling strategy.

“We put a lot of effort into managing client expectation with our fee-earners. If you start with that, then areas where a client might have potential to complain are reduced”, she explains.

Garner has also upgraded the firm’s process of gathering feedback once a file has been closed. Every single client receives a call asking for feedback on the service they received, which is then fed back to the relevant fee-earner and used to inform the firm’s policies and processes going forward.

“We used to email but found the response rate was incredibly low, we were getting maybe one a month. So we looked at it in a different way last year and we decided that the way we handle client care is very hands on.

We encourage fee-earners to build those relationships. And we felt that approaching feedback personally too reflected our firm far more than a generic email did.”

Garner says that on the whole the feedback is good and that helps to build morale, but critical feedback is relayed to practitioners too and used as a learning point from which to improve.

“What you don’t want is for fee-earners to become despondent because all they hear is complaints, but if you can also pass back the positive experiences that doesn’t happen”, Garner says.

“Not once has someone mentioned the amount of compensation they got, it’s always about feeling valued and the kind of service they got”.

Of course, for BBK, having such a hands-on approach to gathering client feedback is easier because Garner is a dedicated resource.

For smaller firms, a more automated approach may be necessary, but capturing feedback of some sort is critical.

BBK’s sister firm Bolt Burdon is full service and takes a different approach. The firm’s compliance solicitor Mark Goring says the firm still uses emails to gather feedback from clients and expects to continue to do so.

However, he stresses that gathering feedback by whatever method is vital. “It’s being ahead of the game”, he says. This is the kind of upfront communication that the ombudsman is so keen for more firms to master.

“As well as cost estimates, clients get a scope of work so setting out exactly what we will be doing for that fee, if it goes out of scope we will send them a revised estimate to cover out of scope work”, Goring explains.

Reflecting on his time spent as head of monitoring at the Council of Licensed Conveyancers he says he remembers firms querying much of what the regulator asked them to do in terms of transparency.

“People think they are being asked to do it for the sake of doing it, rather than for the sake of clients”, he says.

“I used to go around the country doing practice inspections. A lot of people said to me, ‘do we really need to do this, do we really need to send terms of engagement?’.

There was a lot of that so I’m sure there are a lot of traditional, more old-fashioned firms, that probably still have that mentality.

They think it’s just something the [Solicitors Regulation Authority] want us to do.” However, Goring says: “If you do it properly and use the right systems, it’s really beneficial”.

He says being upfront about pricing means that Bolt Burden seldom receives complaints about costs, and if they did the paper trail generated by taking such an approach means they are easily resolved.

Learning on all sides

The good news is firms do seem to be getting better at avoiding complaints and handling them internally when they do arise.

The upshot for LeO is that the complaints it receives are more complex than they used to be, and that has led to some taking longer to resolve.

A source at one firm told the Journal that it was subject to two complaints that had been referred to the ombudsman and had heard nothing regarding progress on those cases for six and nine months respectively.

The issue now is whether to pursue the client in court for payment or wait for a resolution from the ombudsman. “We’re between a rock and a hard place”, the source said.

If the firm sues it risks damaging its reputation by being heavy handed but it’s a considerable sum of money and if it doesn’t there’s no way of telling how long it might take for LeO to resolve it.

Marsh is sympathetic but says ultimately how to respond in this situation would be a judgement call for the firm depending on the nature of the complaint.

“We are set up as an alternative to the courts system, so if the complaint is about costs and the firm were to take the complainants to court for those costs, we can’t have a process where something’s in court and with us at the same time. One of those things has to be suspended.

“We make customers aware that solicitors are entitled to pursue them for costs and we would advise [complainants] to consider paying, even if it’s under protest to avoid recovery action”.

However, she adds: “It’s hard to make generalisations around these things, so I would always tell firms just give us a call so they can make a good and informed decisions”.

Both Marsh and LeO chair Wanda Goldwag have been open in recent years about wanting to improve the responsiveness of the organisation.

Its latest business plan sets out key performance indicators (KPIs) for customer experience and quality, which aim for 45 per cent of cases to be resolved within 90 days; 78 per cent within 180 days; and 95 per cent within 365 days.

However, these overall targets are broken down depending on the complexity of the case. Highly complex cases for example are not projected to complete within 90 days. Instead LeO aims to resolve 33 per cent within 180 days, and 95 per cent within 365 days.

“For me, this is about getting the right outcome, in the right way, at the right time. So that’s quite case specific and one of the challenges that all ombudsman face is that they have a range of complexities in their workload and some cases are resolved easily and quickly while others take a lot more resource and intense discussion”, Marsh explains.

She says the organisation is performing well against most of its KPIs and that they are “pretty consistent across ombudsmen more generally”.

“The key is that no-one should be waiting at any point in the process, and we have taken out most of our points of waiting, except one, which is right at the beginning of the process and we’re working on that this year”, she adds.

The organisation has gone through a period of modernisation and restructuring over the last five years, retraining staff, updating IT and infrastructure, adding a flexible pool of ombudsmen to pick up surplus caseloads, and last year, reuniting the chief executive and chief ombudsman’s roles into a single job.

Marsh says she is passionate about continual learning and development and LeO is now in a place to provide its best service.

After ten years at the Independent Police Complaints Commission she says she is also highly motivated to ease access to justice. Returning to a familiar theme she says: “What’s really going to make the difference is the communication. We are going to get to the heart of issues faster over time, as the benefits of modernisation come out and as the work that we are doing this year to further staff development and training starts to bite, that focus and communication will really drive things more efficiently”.

Talking to Marsh and reading the organisation’s business plan, the strain of so much change in such a short period is clear.

“We acknowledge that it has been a challenging year for our staff because of the volume of change and focus on developing a high-performance culture”, the business plan says. Asked how it feels to be both chief executive and chief ombudsman, Marsh offers a pragmatically positive response: “You’ve probably already gathered it’s busy. But it’s fun”, she says.

Dispensing with the levity she adds: “This leadership team and the changes it’s undergone over the last few years will benefit from a period of stability now. We have got one role, with one leader and a settled management team and that will help us in terms of performance improvement”.

For firms this should mean that cases referred to the ombudsman in future are dealt with more quickly and with more transparency on all sides. On the flipside, transparency and clear communication with clients from the outset could prevent LeO ever becoming involved.