Michelle Garlick offers a quick guide for litigators on how to avoid complaints, focusing on what good compliance and client care look like.
How do you avoid complaints? In a nutshell, by providing a good standard of service to your clients – I fully appreciate this is easier said than done at times when you are extremely busy and under pressure, being pulled in all directions.
Litigation comes fifth in the Legal Ombudsman’s (LeO) complaints table of practice areas. The most common causes of complaints made to the Legal Ombudsman are delay and excessive costs.
Outcome (1.5) in the Solicitors Regulation Authority (SRA) Code of Conduct states that the service you provide your clients should be ‘competent, delivered in a timely manner and take account of your clients’ needs and circumstances’. (Note that from 25 November 2019, under the new SRA Standards and Regulations , the wording will be amended to ‘attributes, needs and circumstances’. ) Delay in responding to clients or failure to action court directions is likely to lead to complaints and potential negligence claims.
In litigation, it is really hard to estimate how much a case will cost but you have to give the client the best possible information at the start – so they know what they might be getting themselves into – and at regular intervals from then on.
Remember Outcome (1.6), and ensure you only enter into fee agreements with your clients that are legal and which you consider ‘are suitable for the client’s needs and take account of the client’s best interests’. (This does not appear as a separate requirement in the new regulations but acting ‘in the best interests of each client’ is listed as one of the SRA Principles.) So if you are taking out litigation funding or obtaining an after the event policy on your client’s behalf, you need to ensure that the way it works is properly explained to the client and they are given all the options in order to make an informed choice as to how best to proceed.
You should also note the new insurance distribution rules which came into effect on 1 October 2018.
Below I look at five things you can do to make sure you are giving your clients the best support.
Do you want to take on the client and this piece of litigation? Ask yourself the following:
Give the client information about what you will do for them in a format that is as easy to read as possible. I have seen many client engagement letters in my time, some of which were almost as thick as War and Peace, even contradictory and incomprehensible in places!
Give your client costs information at the start and throughout the case. Often, I see solicitors give an overall estimate at the start of the case, maybe also an estimate for the first stage of the investigation / litigation, but then forget to keep the client up to date with the costs further down the line.
I have seen some client engagement letters almost as thick as War and Peace
Some say, “well, we’ve sent monthly bills to the client and they’ve paid so they must know how much they’ve spent,” – but that’s not enough. No one can realistically be expected to keep in their head the total amount they have paid. It’s the solicitor’s responsibility to advise the client if the costs are going to exceed the original estimate for any reason. You need to have systems and procedures set up to remind fee-earners to keep the clients informed.
Take care if working under a conditional fee agreement to ensure that the costs are properly and clearly explained, particularly relating to success fees.
Also, note the new SRA Transparency Rules which came into force from 6 December 2018 for those involved in certain types of litigation.
Remember that while you have lots of clients to keep you busy, a private individual will only be thinking about their one case, wondering what’s going on or whether you have forgotten them.
Set up reminders in your workflows to update your clients on the current position of each case. When auditing files, look out for those which haven’t had any activity for two or three months. Delay in litigation can lead to claims if key dates or deadlines are missed.
Give them bad news as well as the good. It can be difficult to break the news to clients that their case isn’t as good as they might have hoped – I know that junior lawyers can find this especially difficult. However, a client won’t thank you if they have been led to believe that they have a strong case when it’s clear that they don’t.