Ounce of prevention could curtail complaints against lawyers

By Staff

Increased mandatory programming to address better client communication and file management could seriously trim complaints to the Law Society of Ontario (LSO) against lawyers and paralegals, says Toronto mediator Bernard Morrow.

Morrow, who served two terms over four years as the LSO’s independent Complaints Resolution Commissioner, tells a significant amount of time, money and effort could be saved, and frustration avoided, if lawyers and paralegals learned to be more mindful when dealing with clients.

“What I saw during my tenure jumped out at me,” says Morrow, principal of the full-service dispute resolution firm Morrow Mediation. “When you review the data reported in the annual reports my office submitted to the Professional Regulation Committee of the LSO, it is startling to see that more than 70 per cent of professional conduct complaints against lawyers and paralegals involve client service issues, including client communication and expectations management deficiencies.”

The vast majority of complaints, he says, involve lawyers practising at smaller firms or on their own where they are so stretched, the basic precepts of client service fall through the cracks.

“In thinking back on my time as Commissioner, there were many things I learned,” Morrow says. “Among them was that so many of the cases I reviewed were what you could call ‘sandbox’ disputes, where clients were unhappy with the level of communication they received from their legal representative.”

Complaints of professional misconduct investigated by the LSO may result in the issuance of remedial action, including a review of best practices or a written caution, he says. The investigation process is stressful and time-consuming for everyone involved and ties up precious LSO resources that might otherwise be put to better use examining more serious complaints, he adds.

Since leaving the post, Morrow says he’s been able to explore similar issues in casual discussions with representatives of LawPRO — which provides errors and omissions (E&O) insurance and related support services to lawyers — and notes there’s a repetitive theme.

“The LSO deals with professional conduct complaints and LawPRO deals with negligence claims. With LawPRO, you see client service-related claims, many of which are linked to poor time-management and other practice management issues,” he says. “If we could cut those complaints and claims in half or more, it would be a massive win for the public, the LSO and LawPRO.”

With firm productivity and client satisfaction in mind, Morrow has provided one-on-one coaching to lawyers on communication skills and has also been approached by law firms to act as their independent ombudsman to address client service complaints.

Tackling the fundamental issues of client communication and properly managing client expectations from the start of an engagement could reduce the number of time-consuming complaints and allow lawyers and paralegals to focus on their active files and new revenue-generating opportunities. The less desirable alternative is to sacrifice countless hours of valuable billable time preparing for and participating in the LSO’s complaints investigation process. An ounce of prevention can help to avoid many frustrating and unproductive hours, Morrow says.

The most common practice areas generating complaints, he says, are those where emotions run high, such as family and wills and estates. That said, claims also emanate from a wide range of practice areas, including civil litigation and real estate.

“The stakes in litigation cases, in particular, are high, and when people are spending large amounts of money in court and not getting the results they expect, they’re not happy,” Morrow says. “Their recourse is to lodge a complaint with the LSO and, once triggered, a licensee’s focus and daily routine are disrupted.”

The issues behind LSO complaints and LawPRO claims have been widely known for some time, but very little has been done to correct them, Morrow says. The LSO requires lawyers and paralegals to complete at least 12 Continuing Professional Development (CPD) hours every year, consisting of a minimum of three professionalism hours and up to nine substantive hours annually. However, given a choice between CPD aimed at increasing substantive knowledge, expertise and revenue and one dealing with “client communication,” he says most lawyers and paralegals are going to opt for training that is most likely to enhance their ability to increase revenue.

“As Commissioner, I frequently dealt with civil cases that involved allegations that instructions had not been followed or followed up on, leading to outcomes that didn’t meet client expectations,” Morrow says. “If you give your lawyer instructions, you expect they will follow through on them.”

Given the clear identification of issues around client service and communications, he reiterates that more emphasis on educating the legal profession may prove to be a win-win for all involved — lawyers, paralegals, clients, LawPRO and the LSO.

“The million dollar question for me is: Where is the opportunity here? I think there’s a professional need, and I’d like to address it, but how best to do it?”

One option may be to enhance the remedial action that often follows an investigation, by requiring the lawyer or paralegal in question to take training on effective client service, Morrow says, much like drivers who rack up points on their licences have to attend remedial training on safe driving.

More proactively, the LSO and LawPRO could deliver additional programming on key issues relating to client service and communications as part of regularly scheduled CPD programs delivered by the Ontario Bar Association, the LSO and other service providers, perhaps going as far as subsidizing the cost of attendance. In addition, LawPRO could consider reducing E&O insurance premiums for those who attend client service training much like auto insurance companies offer discounted rates to new drivers who complete an accredited driver’s training course, he says.

“I’ve talked casually with people about these ideas, and there’s a consensus that the notion of enhanced training focused on effective client service within the context of CPD is needed. The next step is to get this initiative moving, and that’s what I’m going to be working on moving forward — talking to licensees, the LSO, LawPRO and the public, with a view to soliciting support and crafting these ideas into something more tangible,” Morrow says.

He has also had exploratory discussions with larger firms on training and coaching initiatives but these conversations are still in the early stages. The simplest and most effective route, he says, would appear to be through mandatory CPD sanctioned by the LSO and/or LawPRO, Morrow says.

“At this stage, I’d invite anyone interested in collaborating to contact me to see where we can take this,” he adds.

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