Et tu, Brute? The Legal Ombudsman attacks solicitors

Divorce|March 8th 2012

There was more solicitor-bashing this week with the release of a Legal Ombudsman (LO) report that states solicitors should treat clients “more commercially.” It suggests that solicitors should give clearer costs information and should stop using “legal” words such as “fees” and “disbursements”. Instead firms should endeavour to tell the client exactly what the case is going to cost, in clear, plain English. They should give the fullest information and stick to it.

The report wades through the histories of ten clients who have had bad experiences with solicitors. The first (Mr G’s story) involves a man who goes to a firm for a first interview. The solicitors sent the client a bill for the advice and he refuses to pay, stating he thought it would be free. For failing to give any specific costs information beforehand, the firm were required to waive the costs. It seems they made the mistake of assuming that by providing a service, giving legal advice to someone wanting it, they would be paid.

In our firm, we give costs information up front for this very reason. Clients are told when booking, exactly what the hourly rate will be and when attending the office we ask them to sign a first interview form confirming they understand and agree the rate. This has become necessary because of a creeping opinion that solicitors are somehow fair game, one that the ombudsman seems to support. It is only when reaching the tenth case (Mr P’s story) in the report that an example is given of a solicitor whose more expensive fees were fully explained in advance and, despite the subsequent protestations, the complaint was not upheld.

There is nothing wrong with the overall principle of fixing costs and simplifying terms, but it is just that: a principle. Practice proves otherwise, especially in family law. The report points out that legal aid lawyers may be paid a fixed fee, but that’s not to say the fixed fee represents a fair bill for work done. Legal aid solicitors accept that some cases will cost them money, while others may prove financially beneficial.

In giving a fixed quote all sorts of variables must be factored in and charged for accordingly, whether or not they actually materialise. And what about the myriad of imponderables in some cases, not to mention the high number, and cost, of “disbursements” in others? Anyone want to guess what a barrister’s charges might be a year down the line? What about estimating how many hearings and meetings may be attended? How can you put a price on valuation costs when no one knows how many properties might be involved?

Add to this the delays currently commonplace in court. It is not like solicitors can “shelve” cases or put them on hold; a client’s financial situation may change in the long wait for a hearing, and failure to update financial disclosure risks negligence. This is all work that costs money. Detailing the possibilities of the process as fixed costs demand would terrify the client to the point that no one would ever instruct.

There is also much solicitors do that is unpaid and that slips under the costing radar: spending time giving instruction to clients in-person, on the phone or conversing via letter or email; explaining what is happening, billing, going through files. Estimates based on an informed view of a case are a sensible approach, but in the up-hill and down-dale area that is family law anything more certain in relation to litigation costs is unworkable. For the author of the report to falsely raise public expectation is unfair to clients and solicitors.

Adam Sampson, Legal Ombudsman who wrote this piece in The Guardian, even objects to solicitors using the term ‘clients’: “[It] embodies the traditional view of the relationship between lawyers and those they represent: one of unequal power and status. For every client there is a patron, someone of higher rank who offers help and protection in return for future favours: Julius Caesar, a successful lawyer long before he was a successful general, built his political career on his network of grateful clients whom he had helped in the notoriously combative courts of the late Roman republic.

To redress, Sampson feels we should call clients “customers”. Why? Clients are not customers. They are not popping into a supermarket to buy a carton of milk. They are consulting highly trained, skilled professionals for vital advice at the most stressful point of their lives; they are seeking steering and support on life changing decisions. Clients are afforded the dignity of being addressed as such and should be given a service commensurate with that term.

Mr Sampson states he wants more consumer-orientated lawyers and for complaints about costs to decrease. I suspect that many complaints have more to do with the compensation culture of our society and are swiftly exaggerated when money is at stake. Although the ombudsman states he may only deal with “service issues”, isn’t the real bottom line the reduction of the bill after the service has been provided?

There is already a thorough procedure to deal with reducing a bill, one that does not involve the ombudsman. It is the assessment procedure of a solicitor’s bill of costs through court. A judge considers a solicitor’s bill, scrutinising it against the files and hears detailed arguments, deciding if the bill is fair and deducting any costs they believe should not be paid by the client. If more than 20 per cent of the bill is deducted, the solicitor pays all the costs of the court proceedings. If less, the client pays.

The court assessment process is unpopular with claimants because it weeds out the nit-picking clients attempting to reduce a bill after the event. Far better is to approach the LO who will consider their situation free of charge with no risk involved. It has to be worth it, if some of your hard-earned money could then be winging its way back into your pocket. Small wonder Adam Sampson finds himself inundated and groaning under the workload.

Most solicitors are trying hard to avoid letters from the ombudsman by employing trained and thorough admin staff, and developing robust client care processes. Regardless, some people are just wise to the game and will exploit any opportunity. Even the most conscientious, caring and professional solicitor may well fall victim to an unscrupulous client who senses they might be able to scam money back. Fine, that’s life and the risk of any profession.

What is galling however, is the inappropriate approach and lack of neutrality in the tone set out by the ombudsman in his newspaper piece. How can solicitors ever be sure they are receiving a fair hearing while their collective reputation is being so heavily and unnecessarily tarnished?

Image credit: La Morte di Cesare by Vincenzo Camuccini

Author: Stowe Family Law

Comments(11)

  1. John Bolch says:

    A solicitor expecting to get paid for providing a service? How absurd.

  2. Graham says:

    The thing is, I actually won my case to the Ombudsman on this.

    The firm quoted £3k for the divorce, and that they would send a revised total quote if was exceeded or after every six months. 2 years and and a lot of confusing bills I could make no sense of later I get a phone call threatening me with court if I don’t pay them £20k!

    So, went to the ombudsman, I won – they were in breach of their Ts and Cs and their bills made no sense, and we settled on £10k.

    Bill should be. Amount spent this month, amount paid this month, amount outstanding. Simple, yet that’s not what you get, they are designed to baffle you.

    I actually got threatening letters saying – aside from our ts and cs pay up or else. All very poor form really.

  3. DT says:

    I think that Mr Sampson’s views are largely unhelpful and do much to proliferate a ‘Cat & Mouse / Tom & Jerry’ atmosphere of mistrust and suspicion between two people; i.e. lawyer and client who are supposed to be on the same side!

    It is completely unrealistic to say in many cases, definitively what a case will or will not cost. Yes, you can give a ballpark figure, but anything more I think can be dangerous for all concerned.

    It is important to manage a client’s expectations, but one needs to manage one’s own costs too, and asking for a commitment to anything more than the basics is unfair; it’s like asking you to put an exact figure on how many gallons of fuel you’ll use next week when you only have a rough idea where you’re driving to! Will there be traffic jams and diversions? Will you have the AC on etc?!

    This is not like taking your car into a garage where it’s relatively simple to diagnose the problem, get the price of the parts, estimate a labour based upon past experiences and give the customer a price. There are far too many variables, twists and turns (as you say, especially in family law), as well as the unforeseen along the way because this is real life. Nothing in life is certain and it’s not fair to ask for certainty in such an uncertain and precarious process.

    In relation to the ‘language of lawyers’, I’m all for clarity and plain English, but is it not insulting to the client to start using over simplified terminology? What’s wrong with the term ‘fees’ for goodness sake?! If ‘language’ is considered not fit for purpose, then they’ll need to address this with LPC course providers who take their lead from the Law Society I believe, because this is what lawyers are taught at law school.

    You couldn’t write on a “Solicitors’ Account Exam.”, “What I’ve paid out for land searches”, or “Counsel’s been given £1,000 to be going on with”! They’re called disbursements because that’s what they are! We’re professional people and so should use professional language; not technical language, but professional language.

    Furthermore, as you rightly point out, detailing every potential cost could wrongly deter so many who would believe that litigation is prohibitively expensive. A client’s expectations do need to be managed, but being too specific on costs could do them an ill-service and cause needless anxiety.

    I’m glad you mention the amount of unpaid work that is undertaken on files. I think this should be distinguished from Pro Bono work too. Perhaps this non-charged for work could be listed on the invoice with a zero next to it so clients know about it?!

    A lot of work is not accounted for and I for one think there’s nothing wrong with charging for what you’ve done, as long as it’s fair, justified and recorded.

    Graham: 08.03.12 – The bills are NOT intended to baffle! I cannot comment on invoices you have received or your specific circumstances, not do I want to; however, most solicitors are hard-working decent folk and really don’t deserve the recent tirade of rotten press.

    Yes, as I have said before, there is good and bad in ever profession; however, you don’t see DRs and Nurses going around berating themselves for the evil acts of Dr Harold Shipman and Nurse Beverley Allitt; because they are the exception and NOT the rule.

    DT

  4. Steve says:

    Llets all be honest, the legalprofession are in it to make money and thats the simple fact and they will use every opportunity to maximise theis fees. There are so many vagaries in bills, how often do we see perusal and consideration, simple documents which a Client can write in 20mins takes over 6 hours for a solicitor to consider. This happened to me repeatedly.

    I would like to see true itemised billing rather than the simple one liners of perusal and consideration, the Client or indeed customer needs to know exactly what they have been invoiced for.

    In the end, we are all here to make money and solicitors should not hide from the fact they are no different to anyone else.

  5. DT says:

    Hi Steve

    I’m really glad that Marilyn has posted on this matter because I think lawyers are especially reluctant to defend themselves and their profession and in failing to do so, they are doing themselves and their art an injustice. Lawyer bashing seems fair game to many and it isn’t fair.

    Practicing law is a business and of course the legal profession want to make money; we all need money to live. However, I do not accept that lawyers will use every opportunity to maximise their fees.

    We are bound by far reaching codes of conduct and to stick a few extra quid on a bill is not only against our professional ethics but could result in a practitioner loosing their right to practice; this, coupled with the added humiliation from your peer community knowing you’re of questionable character and that you’ve brought the profession into ill-repute and goodness knows what other sanctions – is it really worth it? I don’t think so and I think the majority of solicitors would agree. Most, like I say, are decent people.

    As Marilyn pointed out, often work is undertaken on a file which isn’t charged for. Clients don’t know about this, they just see what has been charged for. Perhaps clients need to be informed of work undertaken which wasn’t charged for?! Every bill is different, but perhaps there needs to be greater clarity on bills?

    Words such as ‘perusal’ and ‘consideration’ are often used and with good reason. If a set of documents comes in relating to a case, they need to be read and sometimes read and views of other colleagues sought. Documents pertinent to a case must be read otherwise a solicitor wouldn’t know what’s going on, wouldn’t be able to advise or take instructs from a client and could face a negligence claim.

    I don’t know the nature of the documents to which you refer, not do I need to, but would you want your solicitor giving you advice or taking your instructions with only half of an informed view? Can you imagine the criticism they’d face then, and rightly so?!

    Reading and such like has to be charged for because it is an integral part of preparing/advising etc. and it consumes a large part of the working practice of solicitors.

    I don’t know what document took you 20 minutes and a solicitor 6 hours (nor do I need to); maybe the 6 hours was spent bringing it up to scratch and sadly, the fee earner didn’t sufficiently document their work? I don’t know.

    I agree that solicitors should be totally open and transparent in their billing. What is more, I think that solicitors need to address misconceptions about their work and practices so as to redress the balance, and right now, I don’t think they’re very good at it. They’re avoiding it and that’s why I’m glad Marilyn is posting on this.

    I hope that I have given you food for thought because there’s a lot of decent, hard working solicitors out there.

    DT

  6. Marilyn Stowe says:

    All,

    I do not excuse actions which are criminal. However human error, which I suspect usually leads to these types of complaints, can never be prevented.  If clients want to be treated as customers, I see no reason therefore why clients should not take some element of responsibility. As customers out shopping they certainly would have to do so. 
    If I were to go into a shop to buy something it would have a cost, even if it was unmarked because of human error. I couldn’t walk out with an unpriced item and say I thought it was free. I would probably be prosecuted. So clients too should be expected to ask about the cost. Why should they assume it is free?
    Similarly if an item doesnt fit, or doesnt work or I wasn’t overly happy, I would be expected to do something about it straight away. I couldn’t wait a year, allow the situation to continue and then complain and expect all my money back. Clients too should have similar obligations.
    I absolutely agree that in respecting our clients, we should do as much as we can for them,  but clients too must share the responsibility, particularly if they are to be treated as the LO states, as customers.
    We should be encouraged by the LO to maintain respect for each other and perhaps a clearly written charter which does this and sets out the duties of both lawyers AND clients, is what is required.

  7. DT says:

    I like the idea of a charter.

  8. steve says:

    I like the idea of a charter also, but please lets not have it drawn up by solicitors for solicitors, lets have some independance in the matter.

    Lets not pretend that solicitors are not in it for the money only and will do heir utmost to maximise fees, I can’t think of a profession where if you are questioned re invoicing or indeed any aspect of heir services you charge the Client for investigating the complaint……its simply not right.

  9. Marilyn Stowe says:

    Steve
    Solicitors may not charge for investigating a complaint.
    Marilyn.

  10. DT says:

    Hi Steve

    I too believe that a charter should be drawn up having taken the views of all sides, not just solicitors otherwise it’ll never work.

    There needs to be give and take on both sides. Greater transparency too where individuals are encouraged to seek clarification if things are not clear; it’s the best way to avoid misconceptions.

  11. Lynne Bastow says:

    I thought the Legal Ombudsman’s role was to investigate allegations of poor service not make it a mission to force down the cost of legal services and admonish solicitors for not supplying a fixed fee service?

    We get daily requests for free legal advice, via email and telephone. We do not advertise free legal advice so why is there a pervasive expectation of such? Sometimes we are abused for refusing to give free legal advice, and I hear that the Legal Ombudsman wants to open their door to non-clients, and extend the time to make a complaint to 6 years. They will need to expand and perhaps can solve the country’s employment problem as well.

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