Lawyers need to realise they are not above the law when dealing with complaints

This article was first published in The Scotsman on 3 June 2024

It’s a basic principle of customer service that consumers should feel any complaint they make will be taken seriously, and their feedback used to improve services.

Now imagine you’ve had to raise a concern but haven’t received a satisfactory response, so you take your complaint to the ombudsman. They start to investigate, but the firm doesn’t respond, so the whole system grinds to a halt.

Would that feel like your complaint was being taken seriously?

You might think such a situation would be rare. After all, it’s a basic requirement for regulated professionals to respond to their regulators.

Unbelievably, in around a quarter of our complaint investigations law firms do not comply with requests for information by the statutory deadline we set. And in around 5-10% of cases we receive no satisfactory response to reminders and have to begin legal action against the firm. Those figures don’t include firms who contact us to discuss genuine problems in providing information.

This failure causes further delays for already aggrieved consumers and adds significant cost to our processes. Those costs are paid by the entire legal profession who fund the complaints system, and ultimately are passed on to clients in legal fees. That means ordinary people in Scotland are paying more for their legal services because of the failure of regulated professionals to comply with basic statutory requirements.

Currently, few levers currently exist to deal with this beyond costly and time-consuming court procedures. But even if we’re successful in court, recovering expenses awarded to us is a lengthy process, often lasting many years, and never covers the full costs.

These figures have remained broadly consistent over recent years despite all efforts to encourage compliance. That includes tribunal decisions finding practitioners guilty of professional misconduct for these failures, and the Law Society of Scotland introducing a dedicated rule requiring firms to co-operate with us. While we’re grateful for this clarification, it simply should not be necessary to remind lawyers to comply with the law.

While new rules and new powers are welcome, fundamentally we need a mindset shift within the legal profession so that dealing with complaints is seen as a basic regulatory requirement and one which every lawyer should meet swiftly and to the best of their ability.

In court we’ve heard tales of disorganised practices, disordered or unreachable files, staff shortages and mounting workloads as excuses for not responding. Those statements raise serious public protection concerns about the management of legal practices which regulators need to be taking account of.

And those cases are just the tip of an iceberg of unnecessary delays, costs and frustration which we deal with every week in trying to investigate complaints. That includes frequent requests for extra time due to holidays, the pressures of business or just to get a file together. Are these reasonable requests or would consumers expect firms to prioritise responding to a regulator and to have contingency plans in place to ensure this happens?

The public and the legal profession are being let down by a system which is failing to tackle a longstanding and widespread culture where solicitors fail to respond to their clients and in their statutory duty to respond to complaints. It’s a pyramid of problems which together form a large and weighty drag on the sector, its efficiency, competence and reputation.

Ultimately, is this what any of us, as consumers, would expect if we had to make a complaint?

And is it what the legal profession is content to expect from its members?