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Complaints – new guidance

The Law Society has issued a new practice note (‘Handling Complaints’ 02/01/2020) which may assist practitioners to recognise and mitigate the ever-present problem of client complaints.

A complaint can be any expression of dissatisfaction, whether verbal or in writing – this is a very wide definition. The Law Society points out that firms tend to focus on formal complaints: letters or emails that clearly state that they are complaints. However, many complaints are initially made informally, for example a client phoning to say that a minor matter has not been dealt with within a stated timescale. While this client may not be making a formal complaint, they are expressing dissatisfaction about an element of service that they have received. Firms should try to pick up on this. All staff should understand the firm’s complaints process and their role within it.

Who can complain?

The list is long and includes: clients, beneficiaries, third parties, potential clients, other professionals and suppliers. All complaints must be dealt with in accordance with the Codes of Conduct.

Note the risk with prospective clients – they can complain to LeO if unreasonably refused a service, or if they are unreasonably offered a service they did not want. Reasonable reasons for refusing to provide a service include:

  • the firm does not undertake that type of work;
  • the client is unable to fund the work required;
  • the firm is too busy or does not have time to do the work;
  • ethical, regulatory or other reasons to refuse (such as suspicion of money laundering, conflict of interest or insurance issues);
  • the case is too complex or difficult or the firm does not have the relevant skills and experience.

This highlights the importance to firms of ensuring that everyone who takes calls from prospective clients keeps a note of the call and any follow up. A firm must be able to evidence the reason/s that a prospective client was declined.

LeO

Note that LeO can accept complaints from individuals and small businesses, charities, clubs, societies, associations and trusts with a turnover of less than £2m. Clients with a turnover greater than this amount will still need to be informed of their right to complain and their right to an assessment of costs, where relevant. If a complainant has referred a complaint to LeO, but is no longer able to pursue it, someone else can continue the complaint on their behalf in some circumstances, such as if they have a lasting power of attorney or are the executor of the complainant’s will.

Beware indemnity insurance

Remember that not every complaint needs to be dealt with through a formal process but there is a potential pitfall here. Apologising to a client who has made a complaint about a minor matter can often 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 the firm’s part, the firm should consider whether an apology could be seen as an admission of liability. This may have implications for professional indemnity insurance, so a firm may want to discuss any actions with the insurer first. A firm should bear in mind the duty to notify its insurer about the complaint and the proposals for its remedy. The firm should not make an admission of liability for a complaint involving negligence by the firm without the agreement of the insurer.

Staff should understand that they must be wary of giving an apology.

Ceasing correspondence with the client

A firm may end their correspondence about a complaint if it has been duly dealt with. The firm should write to the complainant, including all of the following:

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

See www.lawsociety.org.uk.

 

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