Dealing with a fact of life

“Complaints”, says Mary McGowan, “are a fact of life, if solicitors would treat them as such rather than as a threat to their professional integrity. The vast majority of complaints are not about that.”

We are meeting in the Society’s Client Relations Department, on the top floor of the Drumsheugh Gardens offices. Mary, deputy to Director Philip Yelland, has a particular responsibility for systems, processes and quality assurance, on which she speaks with zeal.

The department, of course, has had in place since last September a streamlined complaints handling procedure intended to help it achieve the Ombudsman’s target of closing 90% of files within nine months. So has it changed their lives?

“It did change our lives initially because we introduced an element of compulsion for conciliation and it was discovered relatively quickly that compulsory conciliation is an oxymoron. It requires both parties’ input, buying into it and finding where their common interests lie.” Now it is left to the judgment of a case manager whether conciliation is the correct route for each complaint. Beyond that the difference has been that complaints are being handled much more quickly, “which in fact increases the pressure on the case management and support teams because the quicker we handle something the quicker it comes back”.

The three-strong management team in the department is completed by Margot Walker, who directs and coaches the five full-time and four part-time case managers – all solicitors though most are fairly new to the department. Currently, they also have on a one-year contract a process improvement manager, Jenny Preston: much time and effort is being directed towards speeding up the process while trying to maintain and improve standards. The support team (who work daytime and twilight shifts) and helpline solicitor make up the rest of the department.

Off on the right foot

With an average of about 68 new cases a week (albeit some turn out to be people seeking advice rather than lodging a complaint), much turns on getting things right at the outset. “Our case managers are sick to death of hearing from me that first impressions last. What we do at the very beginning of a complaint is the key to success of the conciliation or investigation. Do it right at the beginning, make a mistake later along the line and we will be forgiven. Make a mistake at the beginning and it’s hard to recover.” She points to a file on her desk which apparently contains a 12 1/2 page letter from an angry solicitor.

The ideal, she says, is to strike while the iron is hot. “If we send a matter out to a solicitor suggesting it might be conciliated, the solicitor meets with their client and it doesn’t sort, it’s better at that stage if we can go back within a matter of days and the solicitor’s in a position right then and there to say, well I know what the issues are, here’s the answer, here’s my file, we send it for a report almost immediately and the whole thing has a momentum that brings it to a conclusion quickly.”

Inevitably there are those who do not take kindly to being investigated. “We have solicitors who are less than helpful, or solicitors who are abusive, we have solicitors who are quite rightly angry when we do stupid things such as forgetting enclosures, but if you were to ask me what the biggest problem is with solicitors I would say it’s the relatively small percentage who don’t co-operate with us, who don’t answer letters and who prevent us from doing our job. That’s more annoying than a solicitor getting angry or emotional with us because there’s usually a reason for that, you can deal with it, but solicitors who stick their heads in the sand cause us most problems.”

Are there many trivial complaints? She concedes they exist but is reluctant to categorise. “What might appear at first sight to be trivial or frivolous will be meaningful to someone so we treat all complaints seriously, because for someone to go to the bother of writing here means that it’s been important to them, and we handle everything and everyone with respect, even with the abuse that we take – and we do.”

Backwards to go forwards

The message the department wants to get over is that it can help the profession in handling client dissatisfaction, even before a complaint is made to the Society. “What we also look to do is try and prevent complaints. The bulk of it is investigating complaints, then you go backwards from that and we invest time and energy in conciliating complaints, and then in trying to prevent them coming to us in the first place.” Sessions or roadshows are held with local faculties, groups of client relations partners or indeed individual firms. “If a solicitor finds that for any reason they have a rash of complaints from any source, for example when a member of their team has been ill or whatever, we’re happy to go out or have them come in here and talk to us about how to deal with the complaints.”

Solicitors in difficulties tend, in Mary’s words, to “think Bruce Ritchie”, because Bruce is known for his expertise in professional practice issues, “but we are equally providing them with a service, as we also do for members of the public. We don’t make the complaints but we make sure the public have easy access to the process, and relevant information at each stage, and we want to do the same for solicitors.”

Scheduled to launch around the publication of this issue of the Journal, is a pilot scheme aimed at helping sole practitioners. If a complaint is made and appears suitable for conciliation, a case manager will take the lead in trying to set up a meeting with the client to mediate the dispute. “This is a Council initiative designed firstly to promote conciliation and the benefits of it, and secondly to help out sole practitioners who lack the benefit of being in a larger practice where you can bring objectivity to a complaint”, Mary explains.

“If you’re going to ask, who is our customer, the answer is solicitors, their clients and indeed the general public, and it’s up to us to provide them equally with the best possible complaints handling service within the strictures of the statute, which it has to be recognised, and the Ombudsman herself recognises, provides us with significant hurdles at almost every stage.”

That comes as a surprise so soon after the Council of the Law Society of Scotland Act, but the problems go wider than the complaints process. “The Solicitors (Scotland) Act 1980 is a veritable minefield”, Mary says with feeling. “We start with the very definitions that tell us that the Society shall investigate a complaint from ‘a person having an interest’. What does that mean? You’ve got to identify that straight away. In a complaint about professional misconduct, it doesn’t say what professional misconduct is, so we go to the common law test for that but it doesn’t give us powers to investigate anything less than professional misconduct. So we have to identify something very serious at the beginning. That’s only the starting point.”

“I’ll give you another example. When we get to the end of an inadequate professional services investigation, issue a decision, and the solicitors aren’t happy with it, their only right is a right of appeal to the discipline tribunal with attendant costs and publicity. Complainers only have a right of review with the Ombudsman. So they have no right of appeal, but theirs is free; solicitors have a right of appeal but there are significant strings attached. There’s not a level playing field at the end.”

Questions of humanity

So would she regard the job as a rewarding or a thankless one? “It’s rewarding in the sense that we make a difference to people’s lives. What we do in here genuinely makes a difference. And satisfaction is derived in this job, apart from when you close a file, when you’ve helped to put something wrong right. It can be a double-edged sword. But the level of real disgruntlement with us, while it may be acute, is actually among relatively few people.”

The new process has helped. “I think there’s a great deal more satisfaction on the part of the client relations committees because they are taking the decisions, except of course in professional misconduct cases where the matter is referred to another committee. There’s more satisfaction at client relations committee level and the beauty of it of course is that it shaves off at least a month from the overall timescale and cuts down on a whole lot of paperwork and duplication. It places an additional burden on the committees but it’s one which is more satisfactory.”

More reporters have also been recruited following recent appeals (see the President’s page in the January Journal), but the hunt is still on for both lay and legal members.

The first requirement is the time to turn a report round in 30 days – and the volume of material and complexity of the complaint may vary greatly. “They need to have humanity – empathy and humanity and common sense, and indeed a sense of humour. I think those are the key skills for the reporting job.”

Talking of reports, are they waiting for the next Ombudsman’s report with bated breath? “As always!” Perhaps choosing her words carefully, Mary adds: “It’s always good to have an objective viewpoint on what we’re doing. Although, encouragingly, the Ombudsman in a recent letter making reference to a complaint that we had handled badly, acknowledged that this was a rarity in the cases she was seeing nowadays, due to our improved processes and procedures.”

“We’re not complacent”, she emphasises. “We are listening to solicitors, to complainers, to objective people including the Ombudsman and our process improvement manager. We want to work with the profession and with the public in achieving the targets we’ve been set and we have an open door to any suggestions to help solicitors or members of the public in client care or client relations issues.

“There are some very serious complaints, of course, but the vast majority are not impugning the solicitor’s good name: what they’re doing is giving an indication of how a person feels about how they have been treated. The majority of them are about human relationships. And if solicitors would seek to use complaints as a tool for learning then they might get more out of it and find out how to make sure that they adopt practices to reduce complaints or eradicate them. This more than anything would have the greatest impact on the volume of work handled by the CRO team.”