There have been many changes over the past 12 months in the way the Law Society deals with complaints about solicitors, and there will be many more in the next few years as the structure for dealing with complaints improves, reports Richard Hegarty
The changes that the Law Society's compliance board has overseen recently will position it well for the future of complaints handling.
The historic problems that the Society has had in dealing with the volume of complaints have largely now been resolved. During 2004, staff at the Law Society closed some 1,000 more complaints than it received and reduced the work in progress to much more manageable levels. There has been improvement all round in the way complaints are being handled and this has been recognised in a recent House of Commons debate when David Lammy, a former parliamentary under-secretary at the Department for Constitutional Affairs, acknowledged the strides the Law Society had made in complaints handling. There is more to do.
In April 2004, the Law Society's Consumer Complaints Service (CCS) and the compliance directorate replaced the Office for the Supervision of Solicitors. The CCS now deals with almost all 'consumer' complaints, namely, complaints from clients seeking some form of redress. The compliance directorate deals with what can loosely be described as conduct complaints to decide whether, and if so what, regulatory or disciplinary action should be taken against a solicitor.
The Independent Commissioner, Sir Stephen Lander, who in effect predicted the conclusions of Sir David Clementi's report, recommended this separation. It is right that the way the Law Society handles a complaint from a consumer seeking help should be different from the way it handles a complaint that gives it information about misconduct. Most clients who complain about solicitors hope for a rapid solution to their practical concerns, with redress for any inadequacy of service.
The regulation of solicitors in the public interest will sometimes require lengthy investigations of complex issues and the use of regulatory and disciplinary powers. At other times, it may require no or minimal action to be taken, for example, where the impact of a minor rule breach is low, and there is little likelihood of repetition.
As the new structure develops during 2005, the CCS will continue to deal with complaints by clients, or their representatives, about the service provided to them by their solicitors. Many rule breaches will also amount to poor service. The CCS will take these into account in deciding what kind of redress is needed.
However, the CCS will not decide on any disciplinary action to be taken against the solicitor. Wherever possible, solicitors and clients will be helped to an agreed resolution. If that is not possible, the CCS will then use the Law Society's statutory inadequate professional services powers to order redress. The Society's Web site has an indication of the levels of compensation that are likely to be awarded in the hope that both solicitors and clients will be realistic in the way they resolve the matter themselves.
The role of the compliance directorate is to secure the compliance of firms and solicitors with the rules of professional conduct and other regulatory provisions. The objective is to protect the public.
The directorate will use the Law Society's statutory regulatory powers and its investigative and disciplinary process, as is necessary depending on the risks posed. Reports of potential misconduct are made by clients, other solicitors, third parties, officials and other organisations. Any report will be assessed and if it is a breach of conduct that is minor or of a technical nature and is unlikely to be repeated, then the directorate may well take no further action beyond sending a letter of advice. A record will be kept of the complaint and if the same facts are repeated, then the solicitor can expect a fuller and more focused investigation to follow.
If the facts in a report are more serious then it will be investigated in the normal way and the issues may eventually go for adjudication. In deciding what approach is justified in a case, facts such as the solicitor's record and the speed and willingness in complying and putting right the consequences of the breach, can be taken into account. The cases that go to a full adjudication may result in a reprimand or, in very serious cases, a referral to the Solicitors Disciplinary Tribunal.
The underlying principle is that of proportionality. Wherever possible, compliance will be secured first, before a decision is taken on whether a disciplinary action is needed.
Lesser breaches will not be over-regulated, but the full range of the Law Society's regulatory powers will be available to protect the public and the good name of the profession against those whose actions create serious risks.
All these changes are being implemented during 2005. The compliance directorate has already begun to conclude less serious cases with written advice. Those who complain about the misconduct of solicitors will be supplied with information about the regulatory action being taken where it is right to do so. Some third parties (such as recipients of undertakings) have a personal interest in the solicitor's compliance. For others (such as courts and regulators), the decision may be material to further action on their part.
However, the scope, direction and level of priority of any investigation will be determined by the compliance directorate, on the basis of policies agreed by the compliance board.
All of this comes at a cost to the profession. Solicitors will always have to pay for the handling of complaints. The Law Society's Council agreed substantially to increase complaints funding over the last three years, and that investment is now beginning to show and be recognised by the Society's stakeholders. The profession also has an interest in dealing with its own compliance, quickly, efficiently and effectively.
It is estimated that it cost the Law Society approximately £850 for each of the 17,300 complaints that it received during 2004. And the overall cost of dealing with complaints is likely to increase.
For the future, there are some things that are certain. From 1 January 2006, the Law Society's new consumer complaints board, with a lay majority of members, will take over responsibility for all consumer complaints; the new regulation board will take over responsibility for complaints of misconduct.
The Society's council has already agreed that the inadequate professional service maximum award should increase from £5,000 to £15,000, and it is only a question of time before it is implemented. Clients' expectations will continue to rise and the profession will need to accommodate those expectations. Successful solicitors' firms will see the benefit of investing in good client care and effective internal complaints-handling systems.
Other changes are likely. Following implementation of the Clementi report, there is likely to be an extension of the 'polluter pays' concept in dealing with complaints. This may mean that solicitors pay for the cost of dealing with complaints whether they are found wanting or not. This will provide a further incentive for good client care. It is to be hoped that we will see client care as a compulsory subject in the continuing professional development of all solicitors.
Richard Hegarty is the chairman of the Law Society's compliance board
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