They may not be something you are comfortable discussing, but being upfront about fees will pay dividends in the long run, both for you and for your clients.
Most clients are looking for advice in direct and simple terms about what is achievable, how long it will take and how much it will cost. If what clients seek is too time-consuming or expensive, the fee-earner may worry that if they hear something they don’t like, they will go elsewhere. On the other hand, taking them on on the basis of a misunderstanding is unlikely to turn out well! Another way of thinking about discussing costs is that with the benefit of their legal adviser’s expertise and advice, clients can then decide which option they want to pursue. Once they have been guided through this and made their choice, they are more likely to let the lawyer get on and implement it. If matters go off course subsequently, clients expect to be informed in good time to be able to adjust their choices.
Unsurprisingly, costs remain the issue about which clients are most likely to complain, regardless of the type of work. Conveyancing has taken over from family law as the subject area that generates the most complaints. Overall, family, residential conveyancing, and wills and probate account for almost half of the complaints dealt with by the Legal Ombudsman (LeO), probably because those are the areas in which most consumer transactions occur (the next most significant is personal injury) (The Office for Legal Complaints annual report and accounts for the year ending 31 March 2016,
HC 744, Le0, November 2016, page 13). The LeO’s office has published useful guides
that deal with these areas.
Too often, lawyers avoid talking about money or, if asked directly by the client, become hesitant and evasive. The reasons for doing this vary from ‘I don’t feel comfortable about our charge-out rates’ or ‘I don’t want to sour the atmosphere by talking about costs at this stage’ to ‘It’s not my job to talk about fees’.
One way to tackle this tricky area is to put lawyers in their clients' shoes by running an in-house session and talking about how it feels to use a professional service.
What can go wrong
The practical consequences of not talking about money are considerable. They include:
•the client becoming frustrated or confused about likely costs;
•the work starting before costs are agreed;
•there are different perceptions about what is covered and what is not;
•the client feels ‘unsure’ about service levels and how much s/he should budget; and
•it causes later misunderstandings and problems with payment and level of fees.
One way to tackle this tricky area is to put lawyers in their clients’ shoes by running an in-house session and talking about how it feels to use a professional service. How did they feel when they last went to see their dentist or take their pet to the vet? How did they feel about being asked to pay? They were probably worrying to some extent about costs and were expecting them to be explained. Did they feel clear about charges? Was there anything the vet/dentist did that would also work in a legal context? Could s/he have done anything better? If so, is that something you could also improve on?
Talking to clients about fees is complicated. Some people are better at it than others and it’s helpful to share good practice among all team members. Providing a script or checklist can help to make it easier. It is essential to provide training to fee-earners so that they are comfortable discussing fees, whether legal aid or private paying. You need to ensure they are totally familiar with your fees, what they include and, perhaps more importantly, especially in relation to fixed fees, what they don’t include.
It’s critical that as soon as it looks as though a case is going outside a fixed fee or estimate, the fee-earner raises it with the client. Hopefully, by that time, they will have established a good relationship and it will be easier to manage the client’s expectations if things have changed.
Busy lawyers tend to prefer email to communicate with clients, as it helps the lawyer’s time management and may appear to offer the client more flexibility in when to deal with a communication; but it’s not always the best method. When you need a more nuanced conversation, and may need to pick up on the client’s reaction, it can be much more productive to speak on the phone first rather than turning straight to email. Any changes to the initial agreement on fees need to be talked through and agreed, then followed up in writing.