I have been following the debate in the Law Society Gazette over recent weeks about the inability of solicitors to work to a fixed fee because their counterpart on the other side of a transaction may be incompetent or inexperienced.

This seems to have struck a nerve with the profession (see the letters from Natalie Saunders from Berwins entitled "Time-based charging cannot be abandoned entirely" and from Neil Wright entitled "Competency Test" by way of example and the in-house counsel perspective from Christopher Digby-Bell).

Christopher used the analogy of a heart surgeon to illustrate the concept that payment should be based on results and not necessarily the time spent, which was challenged by a subsequent correspondent who replied  that longer heart operations cost more (see the full letter of response here).

This seems like a rather strange argument - as Christopher pointed out in his own response, it is unquestionably true that the operation will cost more (in terms of  theatre time and staff costs) but actually the surgeon doesn't charge the patient more  in this situation.

I don't disagree that often the biggest problem on a transaction is dealing with a solicitor representing the other party who clearly has no experience or knowledge of the relevant area of law. It can and does make matters much more difficult and time consuming.

As a profession though can we seriously afford to say to our clients "we can't guarantee that other members of the profession are qualified or competent to carry out the work they take on. If it turns out that this is the case here, then we will expect you to pay extra for it"?

As a client, if a lawyer said this to me I would find another lawyer - and there are plenty around who will offer a fixed fee.

Maybe the answer is in competency tests for specific practice areas as Neil suggests? This is the position in other professions such as medicine - to strain the heart surgeon analogy even further your heart surgeon wouldn't be able to decide that he was a little short of work and so would try his hand at a few knee replacements.

Some practice areas do seem to have adopted this idea of additional qualification (for example the Society of Trusts and Estate Practitioners which offers the various STEP certificates and diplomas for practitioners in this area), but it could be used more widely.

I don't believe that the answer lies is in arguing with our clients (and that includes in-house counsel) when they tell us that they want fixed fees and are not prepared to subsidise the incompetence of other solicitors.

To (loosely) paraphrase Bill Gates:-

"in 10 years the way in which solicitors operate today will be obsolete. The only question is whether we make it obsolete or whether someone else will"

If we, as a profession, refuse to listen to what our clients are telling us then it will be someone else who makes it obsolete.