The debate about whether complaints data on legal professions should be published continues. I broadly agree with Neil Rose’s views set out on the Guardian blog. There are some tricky issues to address about what data should be published how (see the indefatigable Rose again here for a nice set of points). In truth, though, generally complaints data provides very little reassurance about the quality of professional service providers. Consumers don’t understand the underlying quality of the services they receive. It is very rare indeed to compare client satisfaction and complaints with more robust tests of competence. The research suggests there may be some link but also that consumers tend to underestimate quality problems: they are much more likely to miss incompetence than they are to complain about it. This is unsurprising, clients respond to service (which they cannot assess) not competence (which they generally cannot assess, although it can sometimes reveals itself when – for example – hearings or negotiations go spectacularly wrong). Poor outcomes may also filter into dissatisfaction (but the relationships between outcomes and competence is also an unpredictable one: good outcomes can be secured by luck as well as by good lawyers and vice versa, although over an entire firm’s caseload these things should generally even themselves out).
The debate is, I think, about a basic cultural issue. It is nicely revealed in one of Rose’s quotes:
“Responses to LeO’s discussion paper on its publication policy show the profession united in opposition to the idea, with one law firm saying it is “rare” for a client to have a justifiable complaint, and another saying “the truth (at least in relation to decent firms) is that the vast majority of complaints are without any substantial merit”.
I’d like to offer three pieces of evidence that suggest we should disagree that most complaints are without merit.
Firstly, this kind of argument is as old as the hills and it has always been wrong. I had the interesting opportunity to study what was then the Office for the Supervision of Solicitors. At that time consumer groups (and the Legal Services Ombudsman) were criticising the OSS and Law Society for complaints handling and solicitors were, very vocally, pronouncing along the lines that complaints have no merit. Readers probably only need to know that the report was called Willing Blindness to get a sense of the rather troubling picture that emerged. In summary: as often as it could the OSS turned a blind eye to poor practice in the profession and tried to turn away or settle complaints as soon as possible. It is no wonder that the LSO so frequently found the procedures of the OSS (and its predecessors and successors) wanting. In casework committees I observed, if there was any tendency to favour one side or the other it was the ‘there but for the grace of God go I’ tendency where lawyer committee members excused poor service because sometimes, in busy practices, clients get poor service. Well, to a fair minded reader I would like to think that the point about complaints procedures is that where poor service arises and is complained about, those complaints should be addressed not excused.
A second reason is based on personal experience with a highly reputable firm who did some conveyancing for me. I explained the job, explained a potential wrinkle which I knew might make the job more complicated and they quoted a fee. Later they presented me with a bill of about 3 or 4 times the original quote. They said the job was more complicated because of the very same wrinkle I had pointed out in my instructions. They offered to reduce the bill by half. It was a good job I knew what I was doing and that I had also done a research project on Inadequate Professional Service. I paid the fixed fee. Their letters wreaked of gritted teeth, and I will go nowhere near them again.
A third reason, is that I see similar cultural issues about complaints (or more correctly student feedback) in my own sphere which emulates this one. There are broadly two sets of responses to critical student feedback. One set of responses is defensive, to deny the criticisms have any validity and to seek to attack the students that criticise them. Another set is to take those criticisms, to think about them carefully, to examine the underlying teaching practices which may lead to those criticisms and to respond openly and constructively to them. One set of responses leads to better teaching and more satisfied students. The other doesn’t. I’m sure every reader can work out which one is which. That does not mean every complaint is right, but many (I would say most) have some merit in them. A professional that starts from the presumption that complainants are wrong fails to improve, loses business and damages the collective reputation of their colleagues.