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?