Does the Law Society have the stomach to fight for client care or is it suffering from indigestion? Marlene Winfield has the diagnosis.
Is the Law Society capable of enforcing client care? A case in point is Stuart Pilbrow. Mr Pilbrow asked a firm of solicitors for legal advice, but the firm failed to tell him the person handling his case was not a solicitor. When he found out, he refused to pay the bill. A county court decision in the firm's favour was overturned on appeal because the firm had breached Mr Pilbrow's contract.
Several things about this case bemuse an outsider. One is that, in flagrant violation of Practice Rule 15, the firm never sent Mr Pilbrow a client care letter setting out who would be conducting the case, their qualifications and their charging rates. Another is that even though the firm breached its professional rules, the arbitrator found in its favour.
Yet another is that 800 pages of Practice Rules could not provide even basic consumer protection without involving the Court of Appeal. I suspect the problem is ambivalent drafting. The recently revised Practice Rule 15 is a prime example. The new improved version ostensibly requires solicitors to give clients the best possible costs information and to operate a complaints procedure.
The tenor of the rule is that even though clients' expectations are unrealistic, solicitors should do their best to meet them. To make life easier, it provides a loophole big enough to drive a juggernaut through. Solicitors need not record in writing the information they must give clients or why they have not been able to give it. The rule merely advises that it is “good practice” to do so. Bearing in mind well over half the complaints reaching the Office for the Supervision of Solicitors (OSS) have a costs element, it might have been prudent to make this rule considerably tougher.
The complaints handling provisions are equally weedy. Firms are required to “have a written complaints procedure and ensure that complaints are handled in accordance with it”. Would one that read “clients complaining about any aspect of our service will, within five working days, be advised by the senior partner to get stuffed” be enough to satisfy the requirement?
In the face of such half-hearted rules, is it any wonder that the OSS is flooded by complaints that firms fail to resolve themselves? The Lord Chancellor proposes to tackle the “deteriorating” situation by giving the Legal Services Ombudsman powers to set targets for the OSS. I have grave doubts that reinforcing the dyke will work unless the flood can be stemmed at source.
To stem the flood, solicitors need specific and unequivocal rules about client care. In the limited circumstances where full costs information cannot be given, an alternative arrangement should be agreed in writing with the client.
The 20 per cent of solicitors responsible for 80 per cent of the OSS's workload should have their practising certificates endorsed, like driving licences, each time they clock up too many complaints that are upheld or should have been resolved at source.
Those with repeated endorsements should be subject to a degree of outside supervision – or in the worst cases suspended from practising – until they show they can do better. With each new endorsement, they should also have to pay a bigger share of the costs of the OSS or what replaces it.
Both clients and the profession suffer when a delinquent minority fails to take client care seriously enough. The real question for the Lord Chancellor is whether the Law Society has the stomach to get tough with the miscreants for the good of the profession – or if the job requires someone willing to wield a bigger stick.
Marlene Winfield is senior policy officer for legal services at the National Consumer Council.