On closer inspection, however, it’s evident that some in the legal world are absenting themselves from the general handwringing, and planning instead how they can use the uncertainty to their advantage. History reminds us that where institutions and empires have fallen, something, or someone, new and inspiring usually rises from the ashes. Leaving aside the debate about whether one approves of LASPO, ABSs, QASA and all their fellow acronyms, it will probably be those who see it as a chance to steal a march on some of their competitors who will profit by its introduction.
Demonstrating this opportunism perfectly, some online providers of barristers’ services are actively seeking to cut solicitors out of the legal process and use direct access rules to their advantage. One website I have seen is promoting the virtues of direct access to barristers’ advice, for instance, by claiming it can halve the cost of some legal matters. This includes quoting from surveys which say that solicitors are overcharging customers.
This customer led approach plays well to the notion that there will be an increasing number of people looking for affordable legal services. And the timing of the announcement has more than an inkling of coincidence about it, coming as it did just days before the LASPO Act came into effect. If this is anything to go by, then it seems the gloves are off in the commercial amphitheatre of legal services.
Given that complaints about barristers account for just 3% of Legal Ombudsman business compared to 95% of complaints about solicitors, it would seem a no-brainer for the discerning customer to go to the former rather than the latter. But that would be simplistic. There are 120,000 practising solicitors in England and Wales compared to a mere 15,000 practising barristers, which to a large degree explains the disparity.
And as much as some in the industry are focussing on solicitors’ costs and perceptions that they are too high, our data sets suggest there are issues around costs across the spectrum of legal service provision. The last three quarters of Legal Ombudsman data shows, for example, that whereas 17% of complaints about solicitors related to poor or inaccurate cost information, it was only marginally lower at 14% for barristers.
With more people looking to take advantage of direct access, the scope for an increasing number of disputes over charging and costs will inevitably grow. But, at such an early stage of the direct access model’s implementation, barristers have an opportunity to get their house in order. Putting good cost practices into place now, and perhaps considering alternatives to hourly charging (as many in the sector are now looking to do), will stand them in good stead for the future.
A recent YouGov legal services survey reveals that more than 50% of people who had used a lawyer in the last year were charged a fixed fee, with hourly fees paid by only 17% of people, so the sector is already moving towards payment models that enable people to budget right from the start of a case.
And this certainly appears to be what customers want; the same survey shows that 60% of people would prefer to pay a fixed fee when going through divorce proceedings, for example, with just 25% willing to pay an hourly fee.
In addition to issues over costs, I suspect that barristers may also need to work on changing consumer perceptions as direct access becomes more popular. Our research into first tier complaint handling found that many customers were too intimidated by their lawyers to complain about them. The format of the survey meant that respondents were chosen indiscriminately, so some of those complaining about intimidation may well have been talking about their barrister.
Given barristers’ elevated status and existing perceptions of the Bar as remote – which stems from the fact that barristers have traditionally been much less accessible to the people they were representing – it may be that people continue to shy away from complaining directly to their barrister. Good complaint handling procedures can play an important part in overcoming these perceptions, and in nurturing customer relations more generally.
Our guide to good complaint handling, “Listen, inform, respond”, reminds lawyers in its introduction that 82% of consumers would choose a lawyer based on personal experience or recommendations from friends, relatives and work colleagues. Resolving a complaint satisfactorily is one way of ensuring that your customer’s personal experience is remembered fondly, and that recommendations are made as a result.
Life in the UK legal market is tough and it is set to get tougher. This applies to all legal professionals. So while certain commercial outfits are right to be competitive, it would be wise for barristers tying themselves into such business models to consider how increasingly exposed it will leave them to new types and increasing levels of service complaints. That is why we are planning to work with barristers on finding out why complaints arise and what they can do to avoid them. After all, as many of my barrister friends tell me, anything is better than having to spend unnecessary time dealing with me.
A New Vision
Anyone who saw the recent media coverage of our Annual Report will have seen that I was calling for a “new vision”. What did I mean by this? Well for starters I would like the recently approved EU Directive on alternative dispute resolution (ADR) to be used as an opportunity to look again at the approach to providing redress so that future challenges are met and access for consumers simplified. The Directive will require ADR to be available for all complaints about services and products instigated by a consumer against a trader from 2015.
The Legal Ombudsman must now consider broadening its approach to redress to mirror changing consumer behaviour and innovations in legal services, which are eroding traditional boundaries between sectors. There are opportunities provided in the existing Legal Services Act 2007, which set up the Legal Ombudsman, that allow it to provide redress related to a much broader range of services. At the moment the Legal Ombudsman can help put things right for consumers only if service providers are regulated, but we should now be thinking about how this could be broadened so that all consumers of all legal services have access to redress.
We should consider legal services from the consumer perspective. Many will not think about who provided a service or where the boundaries, in definition, lie. Legal services are increasingly becoming entwined with other professional services; for example, within the next year the Ombudsman expects to start receiving complaints about chartered accountants, regulated by the ICAEW, who offer consumers legal services.
With this in mind the Legal Ombudsman will be publishing a discussion paper over the summer seeking views on how a voluntary scheme, allowed for in the Legal Services Act, might be used within this broader context. We need help in beginning to think carefully about what it would cover, how it would operate, and other practicalities around cost and enforcement before deciding whether to make a case to the Lord Chancellor.
I would also like to see more thought about how benefit could be increased for consumers (by ease of access) and providers (by having certainty) by existing schemes working more closely together. We need to adopt a cooperative approach to sort out any ‘grey’ areas in terms of jurisdictional overlap and ensure the system as a whole works to the benefit of consumers while promoting enterprise and confidence in industry.
Experience shows that the notion of competition and choice for individual businesses should be resisted as this model doesn’t open up choice for consumers and creates risks of different standards and confusion for providers. With the lines between professions becoming less defined and the Ombudsman’s experience in dealing with different kinds of service complaints growing, an early opportunity might be the creation of a common portal to assist consumers, with Ombudsman schemes sorting out between them where best a complaint might be resolved.
The immediate change in jurisdiction, which the Legal Ombudsman is keen and ready to accept, is the extension allowed by another provision of the Act (s161) to cover complaints about claims management companies. Ministers have announced that this will be put in place before the end of the year. The infrastructure is in place and the capacity is available to take on this work as soon as the technicalities can be sorted out. This is a real opportunity to close a gap in consumer redress and at the same time benefit those bodies already in jurisdiction by reducing our unit costs.
By Elizabeth France
Chair of the Legal Ombudsman’s Board