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Having considered complaints from the client’s point of view in the last issue,1December 2021/January 2022 Legal Action 17. this article looks at the impact on caseworkers and how the practice can respond positively. The questions that need to be addressed in relation to an upheld complaint are: was the cause a systems issue or a people issue, or was there a mixture of the two? There may be:
•an office-wide systems failure; and/or
•a failure to operate existing systems and procedures correctly in relation to this specific matter, and/or client and/or caseworker.
Systems issues
If the problem is due to a gap in office systems, this must be addressed as a priority, the manual updated and practice-wide training provided.
Where an existing system or procedure has not been observed and/or operated properly, it is important not to put everyone through refresher training, which could be a waste of time and resources if there is only one particular individual or team that needs additional support.
People issues
If the problem has arisen due to a lack of supervision and/or a more junior person being asked to do something for which they are not trained, then the supervising lawyer is likely to need guidance and support in relation to delegation, motivation and people management.
Care should be taken to ensure that trainees are given incremental levels of responsibility and that they can have confidence that their supervisor recognises that as people learn, they may make mistakes. Having a supervisor who can articulate how they identify issues and make decisions in running a case helps trainees learn how to make judgement calls and respond effectively to individual client demands on them.
When people become anxious, they tend to adopt one of the two typical responses: fight or flight. Flight clients typically fail to respond to requests for instructions and ‘stick their heads in the sand’, even when time pressures become critical. Fight clients, however, tend to become aggressive, adopting a ‘shoot the messenger’ approach when the caseworker informs them of a response from the other side.
Training in managing such reactions helps caseworkers to respond constructively and professionally as they may experience initial fight or flight responses too. The aim is to give them confidence to tackle the issue with the client rather than being passive and ignoring it (flight) or becoming aggressive and creating more conflict (fight).
Unfortunately, it may not be possible to restore the relationship with every client who complains, and it might be necessary to suggest that, as the working relationship seems to have broken down, they consider changing solicitors. In some cases, the people issue may be insurmountable. If the client is behaving in an unacceptable way, the practice must protect its staff from bullying and harassment, and so may need to tell the client that they cannot continue to represent them.
Good lawyers take complaints to heart, so it is important for the practice to recognise and respond to the stress that being the subject of a formal complaint will cause to the individual(s) affected. A balance has to be found between supporting the individual and preventing a similar complaint being made in future, so it is essential for the culture of the practice to be open and supportive, and not focused on finding fault and ascribing blame.
As a result, the practice needs to ensure that everyone feels able to discuss openly that a potential mistake has been made. You can adopt practices that make it easier for people to talk about ‘near misses’ and mistakes, for example:
•‘Client challenges this month’ as an agenda item at a team meeting.
•Exchange of files for each caseworker, say, twice a year, where everyone can swap a file with which they are struggling. Recipients usually find the other person’s file is quite straightforward and the client will often appreciate a fresh face if things have begun to drag or there has been a lack of empathy.
An individual directly affected by a complaint should have a formal review meeting with their supervisor to discuss the range of support available and agree relevant training. Even when a caseworker is not at fault and a complaint is not upheld, they may have lost confidence and need additional support.
Potential client risk analysis as required by
Lexcel v6.1 5.12 should reduce the incidence of ‘high risk’ clients being taken on in future.