The argument over solicitors providing their clients, or potential clients, with information as to how much their matter will cost them has been running for as long as I can remember. On the one hand consumer organisations and regulators have called for clients to be given more information, and on the other hand solicitors have argued that giving clients accurate information they can rely on is simply not possible in most cases, as you cannot foresee in advance how much work will be involved in a matter.
That the argument continues is not an indication that things have not changed, however. Things have changed a lot in the time since I began practising in the early 1980s. When I began, most clients were not provided with any information at all. It was just “not the done thing” to talk about money in that way, almost like those expensive items in a shop window that do not have a price tag, on the basis that if you need to know how much it costs, you can’t afford it.
By the time I ceased practising, however, solicitors were required at the outset of a matter to give the client details of the hourly charging rate(s) of the person or persons that would deal with their matter, together with a rough estimate of what the matter was likely to cost in total, including expected disbursements, such as court fees. The problem, however, is that word ‘rough’. OK, there are some discrete matters, generally of a simple nature, when an accurate figure can be given because it is easy to see just what work will be involved, but for the vast majority of cases all one could do is say something like: “If we are able to settle the case quickly, then our fees are likely to be in the region of £x. However, if the matter has to go to a fully contested court hearing then our fees could be up to (10 x £x).” Such an estimate is, obviously, of only limited value to a client trying to budget for their case.
The latest round of the argument occurred during this last week, when the Legal Services Consumer Panel responded to the interim report that the Competition and Markets Authority (CMA) published last month into the legal services market. For the benefit of those who don’t know, the CMA is “an independent non-ministerial department” that works “to promote competition for the benefit of consumers”, and the Legal Services Consumer Panel is “an independent arm of the Legal Services Board” whose “role is to provide independent advice to the Legal Services Board about the interests of users of legal services.” The Legal Services Board’s “overriding mandate is to ensure that regulation in the legal services sector is carried out in the public interest; and that the interests of consumers are placed at the heart of the system.” I hope you’ve understood all of that, although I have to admit that I’m not entirely sure exactly how each quango relates to the others, but we won’t go into that.
Anyhow, the Consumer Panel, as it likes to call itself, says in its response that “consumers need price transparency” (that awful hackneyed word “transparency” again, that seems to be used these days as a solution for all ills). By this, I take it to mean that solicitors should give clients accurate information as to how much their charges will be. The panel goes even further, stating that fixed fees are “the optimum solution especially in areas like family law, where consumers are often at their most vulnerable”. Well, consumers of family law services may often be vulnerable, but that doesn’t necessarily mean that family law services are more suited to fixed fees than other types of litigation services.
Under the completely inaccurately headed section “A history of inaction” (see my third paragraph above), the Panel looks at “comparable markets”, where work is being done on giving customers price information, giving the example of dentists. However, with all due respect, dentistry is not comparable with family litigation. For most types of dental work it is relatively easy to foresee what will be involved, so it is easy to say that a filling will be £x, an extraction will be £y and a root canal treatment (the mere thought of it makes me shudder) will be £z. OK, there will sometimes be complications in dental work, but these are surely comparatively rare. On the other hand, with most family work, for example a contested financial remedies case following divorce or a dispute over arrangements for children, it is very rarely going to be straightforward, and quite where the complexities may lead cannot be foreseen without the aid of a crystal ball.
To give the Consumer Panel its due, it does accept “that there may be legitimate difficulties with offering fixed fee or absolutely accurate estimates in all cases” and acknowledges that giving a fixed fee is not always possible (I would say that it is usually not possible). In such cases, it says, “providers of services should give clients a range of prices”, for example based upon whether a case settles early or goes to trial. Well, yes, but as I stated above, the profession is already doing that, for what it is worth to the client.
The Panel calls for “regulatory intervention”, to force solicitors to provide “price transparency”. The fact of the matter, however, is that intervention is not going to enable solicitors to do the impossible (unless they possess that crystal ball), and forcing them to work on a fixed-fee basis is surely going to result either in pressure on solicitors to bring matters to a swift conclusion no matter what in order to maximise their profits, or solicitors regularly working at a loss and going out of business. Either way, the client, or should I say ‘customer’, loses.