Mazur, Hamlet and preventing complaints

Simon Williams from the Legal Ombudsman considers what the Mazur decision means for client retainers

“This above all: to thine own self be true”

When Polonius is giving his worldly advice speech to his son Laertes, who is about to go off to university, it’s clear to the audience that Laertes isn’t taking much notice.

Polonius spends most of his time in Hamlet getting things wrong and his bad decisions lead ultimately to his demise. It’s not the most famous speech in Shakespeare’s masterpiece, but it might be his most relevant to today, and it reflects conversations tearful parents still have with their children each autumn.

The title character, meanwhile, spends much of his 1,400-odd lines having an existential crisis that’s perhaps not been rivalled in literature.

We at the Legal Ombudsman (LeO) have spoken to many lawyers who have been worried about the consequences (potential and realised) of the various stages of the Mazur case. Like the new King of Denmark, the legal profession has been challenged to reflect on itself, its identity and its services, and the answers have not been easily or comfortably reached.

In over 20 years of dealing with complaints about lawyers, I’ve yet to see a website, retainer or client care letter that says, “We don’t care about our clients”. Rather, the mission statements are clear, positive and direct: not only can you trust us to provide you with a service of high quality, your experience matters to us.

And that’s reflective of what I see: even when things have gone wrong, we find ourselves speaking to human beings about human emotions. The desire to do a good job consistently shines through.

Although the Court of Appeal’s ruling has allayed the worst fears that had been aired, both inside and outside the courts, the questions of who is actually doing the work on a client’s case and what involvement others are having in it still echo loudly in offices up and down the country.

LeO’s approach

Many of the complaints that are escalated to us betray the difference between client expectations and client experience. Preventing complaints is often an exercise in closing the gap.

Complaints arising from the receipt of a bill broadly fall into three categories:

1. “This is far more than I expected to pay”
2. “I don’t believe you’ve done the work to justify this bill”
3. “I am unhappy with the quality of work done and you should reduce the bill”

The third category might have nothing to do with the bill, but the bill might offer a basis for the complaint to be resolved if the service provider either sees merit in the complaint or makes a business decision to ensure prompt payment of most of the debt.

For the other two categories, prevention is found in clear cost information at the start of the work and in ensuring the client stays aware of the position as the case progresses. Anything short of that leaves open the risk that the client will later question the validity of the amount they’re being asked to pay.

Of course, none of this is ground-breaking. The conduct rules for service providers regulated by a body under the auspices of the Legal Services Board variously issue similar requirements. But it is important to remember that the most likely client to pay full price for a service is the one that’s happy to do so.

Whilst some of this is outside the provider’s control, not all of it is, and the provision of clear cost information is a perfect example of that.

Getting it right at the start

Our guidance, An Ombudsman’s View of Good Costs Service, lists six things every good client care letter should contain:

1. Why the client has decided to engage the lawyer;
2. The course of action the client has chosen;
3. What work will (and won’t) be carried out;
4. The standards and timescales for the work;
5. The likely costs of the case based on the information within the letter; and
6. Where any of this differs from the information on the website or in other previously shared materials, why this has happened.

This letter is the most commonly-referenced in complaints that come our way. We almost always ask to see it in cases where we are carrying out an in-depth investigation, and lawyers frequently rely on its contents in support of their position that a complaining client was actually told something they now claim was new to them.

However, as we investigate the complaint, whilst it’s common to see evidence of updated information on the cost and direction of the case, it’s rare to see explicit reference to the client-care letter itself.

It is as though the letter has had its moment and, as Hamlet might have put it, shuffled off this mortal file. Instead, this is as close to a physical contract between lawyer and client as most services will see, and the document on which both parties might find themselves reliant and quoting from, if the relationship breaks down.

Keeping the conversation going

Telling a client the likely cost at the start is easy. But even the best lawyers will have difficulty knowing the extent to which the client has understood that information and, in the weeks, months or years that pass, retained it.

Most legal services are bought at a stressful time, their processes are unfamiliar to most clients and, in that moment, the price is rarely regarded as the most important piece of information.

There are natural points where a lawyer tends to give updated cost information without request, such as:

• when the previous estimate is about to be (or has been) exceeded;
• when a settlement offer arrives (and the balance, after deductions, is being outlined); and
• when something significant has happened to alter the course of the case, and a new price is likely.

The best providers understand the reassurance that comes from telling the client the estimate given at the start is still valid, so updating cost information needn’t only be a task triggered by change. I’ve yet to see a consumer complain about being told too often they were still within budget.

We recognise that any bit of added labour – however small – is an unwelcome suggestion, at a time where resources are becoming increasingly stretched and businesses are making difficult decisions about how to cope with operational demands.

Judging the frequency of, and detail in, regular costs information is more art than science, reflecting the lawyer’s understanding of their client’s individual circumstances and needs.

Some crave the reassurance, some want to follow the accruing costs, but most will appreciate both the lawyer’s demonstrated management of fees and the inclusion of the client in the process. Simply put, finding the right balance reduces complaints.

What Mazur reminds us

Point 5 in our client-care letter list encourages those drafting the letter to outline the likely costs of the case. This won’t always be possible to do with precision, but it will invariably help if the identity of the person or persons working on the case is known.

And this is where Polonius’s paternal oration harmonises with a legal judgment 400 years its junior.

Today’s legal sector means that, depending on the type of work being done and the business model of the service provider, the client might not have a named, dedicated lawyer who they will consistently hear from or whom they can call with questions. The work might now be the responsibility of a team, albeit with an identifiable supervisor.

This presents challenges to firms in how to present the information clearly about costs and to consumers in who’s actually ‘their’ lawyer.

This is our advice on how to prevent complaints about these issues:

1. Whatever the business’s arrangement is on how the day-to-day work is conducted, give the client a clear description. This could be in the client-care letter, accompanying material, on the website or all of these.
2. If the work is generally being carried out by a grade D fee-earner but some of it will need to be carried out by higher grades, explain this clearly and prominently, along with their hourly rates. If delivered to best effect, clients might be reassured that value for their money is an active consideration of those instructed to represent their best interests.
3. If predictable at the start, and certainly as it becomes known later on, be clear about who’s doing which parts of the work. We see complaints about higher-grade solicitors undertaking work that could have been conducted by someone else more cheaply. Whether this is the preserve of a LeO service complaint or of a costs assessment should be moot for the lawyer; avoid the client being unhappy in the first place.
4. Tailor your cost information to your client for best effect. You are relying on their memory, understanding and application of the cost information you give them.
5. Remind your client of relevant information from the client-care letter at an opportune moment. You might learn it’s been put in a drawer, or worse, and a replacement can fend off any issues before they’re even conceived.

Mazur invites lawyers to be clear on who’s doing the work, their roles and responsibilities. Polonius’s advice is to know thine own service. In sharing that information to best effect, ours is to know thy client.

If you do receive a complaint and are not sure how best to approach it, or if you have a general question about LeO’s jurisdiction, remedies or complaint handling, our technical advice desk (technical.advice@legalombudsman.org.uk) is here to help.