Communication breakdown

The Legal ComplaintS Service (LCS) has, over the past three years, investigated almost 40,000 complaints; of which 16,673 (40 per cent) included an assertion that a solicitor had either failed to respond to correspondence or had failed to keep their client informed of progress.

Agreeing a level of service

The LCS's investigations are based around Rule 2 of the Solicitors' Code of Conduct 2007. Rule 2 came into force on 1 July 2007 with an intention to assist solicitors and their clients to reach an understanding of each other's expectations and to clarify obligations.

Rule 2.02 requires solicitors to agree an appropriate level of service with their clients at the outset of the retainer and keep that agreement under review. The guidance to the Rule recommends solicitors establish how the client wishes to be kept abreast of matters and agree a level of service that meets those requirements.

Keeping clients reasonably informed

'Reasonably informed' here means that the client should be made aware of all major developments and any issues that require instructions. Unless agreed, a solicitor is not expected to write to the client on a continuous basis nor send copies of all correspondence.

Alternatively, an agreement to contact a client when a certain event occurs does not override the obligation to inform them of significant developments or hold-ups which precede that event.

The LCS often investigates complaints where progress is halted by circumstances outside of the solicitor's control. The expectation is that the client should be given an explanation, advice and timeframes for action; and a failure to do so could amount to an inadequate professional service.

In contrast, matters are often progressed without keeping the client informed. This often causes acrimony as the client feels that the solicitor is ignoring their plight or does not see them as a priority. Despite the fact that the retainer has not suffered neglect the LCS is inclined towards making a finding of poor service on the basis that the client should have been kept better informed.

Not replying to clients

A huge amount of complaints to the LCS involve solicitors' failing to respond to client correspondence. Taking account of the volume and significance of the correspondence in question, a single failure to respond would not normally warrant a finding of inadequate professional service. Where there is a pattern of failing to respond this could amount to inadequate professional service.

Compensation for distress

An LCS adjudicator recently awarded a customer £500 in compensation for distress and inconvenience on the basis that his solicitors failed to respond to him and did not keep him adequately informed.

The client provided telephone bills which confirmed that he had attempted to contact the solicitors on several occasions. The solicitors were not able to demonstrate that they had returned all of these calls and stated that it was not practicable to return every call, particularly when the calls were made frequently and there was nothing to report. The adjudicator did not consider that to be a satisfactory explanation for an obvious failure to return telephone calls and made a finding accordingly.

The second finding was that the solicitors failed to inform the client that, during the course of the matter, his insurers had made an offer of £500 to settle his claim. The solicitors did not advise the client of the offer as they felt it was, in their opinion, derisory. The adjudicator did not accept the solicitors' explanation and took the view that even if it considered the offer to be derisory it was obliged to inform the client of the offer and provide advice on the strength of it, leaving the client to decide whether or not to accept.

Not replying to the LCS

Rule 20.03 of the Solicitors' Code of Conduct 2007 sets out a solicitor's duty to deal with the LCS in an 'open, prompt and

co-operative way'. Rule 1 of the Code covers solicitors' core duties which include public confidence and stipulates that solicitors must not behave in a way that is likely to diminish the trust the public places in the profession.

In terms of poor service, a failure to reply substantively to correspondence from the LCS may give grounds for additional compensation being awarded to the client. Such a failure does not form part of the service provided to the client; however, drawing out the investigation can be deemed to have aggravated the effect of the poor service identified.

From a professional conduct perspective, the LCS is at liberty to make a referral to the Solicitors Regulation Authority where the solicitor delays in sending a reply, sends an unhelpful or incomplete reply or fails to reply at all to its correspondence.

The disciplinary sanctions the Solicitors Regulation Authority can impose range from sending letters of advice to referring the solicitor's conduct to the Solicitors' Disciplinary Tribunal.

The Solicitors' Disciplinary Tribunal takes a solicitor's failure to reply to the LCS seriously and has in the past found that these failings amount to conduct unbefitting a solicitor and have imposed fines of up to £1,000.

Good communication makes good business sense

Good communication can have a positive impact on the customer experience and helps to maintain public confidence in, and the reputation of the solicitors' profession. Clients place trust in their solicitors and good communication helps to involve them in the process which increases understanding and empowerment.

From the practitioners' point of view, good quality communication is proven to lead to increased client satisfaction and is key to gaining a better understanding of clients' expectations which can save time and effort and result in a decrease in the number of complaints.

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