Preventing complaints

Transcription

1 Preventing complaints We have already published best practice guidance for practitioners on how to handle complaints. However, we firmly believe in the principle that prevention is better than a cure. While we recognise that it is impossible to prevent complaints completely, there are steps which practitioners can take to lessen the likelihood of complaints arising. Based on our experience of legal complaints raised in Scotland over the past five years, we have identified a number of factors which we consider represent best practice for practitioners. We believe that, if followed, these steps can significantly reduce the risk of a complaint being made. Scottish Legal Complaints Commission Preventing complaints 1

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3 Worth the effort Dealing with a complaint can be a time consuming activity. It is easy to underestimate the disruption which it can cause to the day-to-day operation of your business - not to mention the cost implications in terms of time and resources, the loss of chargeable time and other business, etc. In our view it makes sound business sense to consider ways of working which can reduce the chances of a complaint arising in the first place. The guidance which follows is not particularly radical; most of it is common sense and represents what the vast majority of practitioners observe in practice. However, we believe that it is useful to set out these steps in a single document for reference. Our experience of dealing with legal complaints tells us that the vast majority of complaints arise from poor or inadequate communication on the part of the practitioner. Many of the measures which we suggest below therefore centre on effective and efficient communication. The 12 best practice steps we have identified relate to the following areas: Taking on new work Terms of engagement Expectation management File notes Advice and instructions Language Quality control Time management Avoiding delay Bad news Supervision Third parties Scottish Legal Complaints Commission Preventing complaints 3

4 Best practice steps We have identified 12 best practice steps which can assist in complaint avoidance. 1. Taking on new work In a time of economic downturn, many practitioners are extending the scope of the services they offer by diversifying into different areas of work. Diversification makes good practical business sense but it has its limits. Don t be tempted to take on work in an area of law in which you are not confident, or to take on more work than you can realistically manage. Mr A complained when his solicitor withdrew at short notice, and with no reason, from acting in his divorce case. Mr A was concerned that he might have done something wrong and asked his solicitor why he had withdrawn. His solicitor said that Mr A s case had become more complicated than he had expected and he did not have the resource to deal with the work adequately. It is also worth remembering that you can say no to new work - you may find it far more problematic to withdraw from acting without a valid reason after you have agreed to act for a client. 2. Terms of engagement Terms of engagement letters have been mandatory since August Despite this, we continue to see situations where an engagement letter has not been issued and its absence can invariably lead to a complaint being raised and, where pertinent, upheld. Some firms adopt standard terms of engagement letters which can be adequate where the work done is repeated or relatively similar. However, a significant number of the complaints which we see could have been avoided by a properly worded terms of engagement letter which was tailored to the client and to the specific business being undertaken. Issues surrounding: costs; the method and regularity of communications and updates; the identity of the person carrying out the work on a day-to-day basis; 1 Solicitors (Scotland)(Client Communications) Practice Rules 2005 Scottish Legal Complaints Commission Preventing complaints 4

5 the scope of the work to be covered (and in some instances what work will not be covered) - all of these complaints could have been avoided had these matters been addressed in the engagement letter. 3. Expectation management Managing your client s expectations is critical to providing a good professional service - and, as noted above, having a comprehensive terms of engagement letter will go a significant way to addressing that. However, it is not just at the outset that this is important but throughout the transaction or piece of work. Ms L instructed her solicitor in relation to a potential claim against the council after she tripped on a badly maintained pavement. Her solicitor told her that he would make initial enquiries with the council with the aim of raising an action. When she didn t hear to the contrary, Ms L assumed that the action was progressing. When she asked for an update some months later she was concerned to discover that timescales had slipped as medical reports had been requested by the council but her solicitor had not yet asked her to obtain these. Keep your client in the loop about timescales, particularly where those change, or look likely to. Ultimately there should be no nasty surprises. 4. File notes When we start investigating a complaint we will generally ask for the case file. It is important therefore that you keep accurate and clear file notes of meetings, telephone conversations and s and text messages. It is easy to forget to do this, or to put it off, particularly when you are busy. However, remember that ultimately your file is the permanent record to fall back on if there are any disputes over what happened and when. 5. Advice and instructions This follows from the previous step but is worth extending for emphasis. Ensure that you clearly record the instructions you have received from your client and the advice you have provided, this is particularly important where those instructions or advice change. Scottish Legal Complaints Commission Preventing complaints 5

6 At their initial meeting, Mrs K s solicitor told her that, on the basis of what she had told him, he thought she had a good case against another driver following whiplash she had suffered after a road traffic accident. He later altered his view when he read the police report and witness accounts, from which it appeared that Mrs K herself had been responsible for the accident. Although the solicitor recalled explaining this to Mrs K in a telephone conversation, Mrs K maintained that no such conversation had taken place and she had believed that her case was still progressing. The solicitor s file was silent on the matter. Where changes are particularly significant or critical, you may also wish to consider confirming these to your client in writing. When faced with situations where you are unable to follow your client s instructions, explain clearly the reasons why this is not possible. 6. Language Use clear language which is tailored to the level of knowledge, experience and understanding of your client. Make sure that you explain legal terms and processes and in particular, avoid legal jargon. Remember that although, for example, you may be familiar with conveyancing terms, your client may be making their first house purchase and may have no idea what missives are. 7. Quality control No service is ever perfect and in the rush to meet deadlines, errors can and will happen. As we rely increasingly on more instant communications such as s and text messages, the scope for error increases through inadvertent mistyping/miskeying. Having a mechanism for quality control can mitigate against simple errors going undetected. On Mrs T s instructions, her solicitors wrote to her estranged husband advising that his request for contact with their daughter had not been agreed. Mrs T was subsequently distressed when Mr T appeared at the former matrimonial home the following weekend and demanded to see his daughter as agreed. It transpired that Mrs T s solicitors had inadvertently mistyped the word not as now Scottish Legal Complaints Commission Preventing complaints 6

7 While spell-check programmes can be useful to identify most typing and spelling mistakes, remember these are not fool-proof - as in the example, above, simple errors can be critical. Make sure therefore that you have a checking mechanism, even if this is simply proof-reading important documents before they are issued. 8. Time management Legal transactions can often be time-critical and it is therefore important that you have a mechanism to manage your time effectively and efficiently, particularly where you are in all probability managing a number of cases simultaneously. This need not be complex or high-tech; it will depend on the volume and complexity of the work you do. However, you do need a diary system that works for you to make sure that court dates, trienniums, etc are not overlooked or missed. 9. Avoiding delay A significant proportion of legal complaints arise from delays. Effective time management, noted above, can assist in making sure that matters do not drift or get overlooked. However, by its very nature, legal work can be subject to delays which are outwith your control. Where that happens, make sure that you let your client know - don t keep quiet in the hope that things will naturally correct themselves and that you will somehow catch up. Mr L instructed his solicitor in connection with the sale of a flat which he rented out. He was delighted when his solicitors informed him of a prospective purchaser and, having agreed a price, he instructed his solicitor to accept the offer and finalise the sale. It was only a month or so later, after he had gone ahead and purchased another property, that Mr L discovered that the sale of his flat had been delayed due to the purchaser experiencing problems in arranging the required funding. His solicitors had not told him about the delay as they had not expected it to be as lengthy as it transpired. 10. Bad news Not all legal transactions proceed as planned and you cannot guarantee always delivering to your client the outcome which they expected, or perhaps which you expressed, at the outset. Don t delay, or worse avoid completely, Scottish Legal Complaints Commission Preventing complaints 7

8 telling your client bad news - that s an almost guaranteed recipe for a complaint. 11. Supervision Where work is delegated to junior or unqualified staff, ensure that there is a suitable mechanism in place for supervising and reviewing their work. This includes any work undertaken by administrative and support staff. An unidentified error in a letter, albeit an acknowledgement letter from your secretary, reflects on the professional services provided by your firm as a whole and can contribute to a legitimate complaint. 12. Third parties Finally, don t forget that third parties are entitled to raise complaints. What this means in effect is that no matter how good the service you have given to your own client, the other side can raise a complaint against you. Bear this in mind when dealing with third parties, particularly in terms of the tone and language adopted in communications. Scottish Legal Complaints Commission The Stamp Office Waterloo Place EDINBURGH EH1 3EG Tel Fax enquiries@scottishlegalcomplaints.org.uk If you want to find out more about us and what we do, please visit We are open from 9am until 5pm, Monday to Friday, apart from Tuesday when we close for staff training between 10am and 11am. If you need information in another language or in large print or on audio CD, please get in touch. Publication Date: 2013 Scottish Legal Complaints Commission Preventing complaints 8