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The Times
June 24 1997
Frances Gibb looks at new moves to see that the legal profession polices itself properly
The lawyers' watchdogs
The way the legal profession handles complaints about itself from the public is something of a running sore for the profession. Its history of dealing with them is littered with casualties and criticisms. In recent months though, both the Bar and Law Society have made a fresh stab at improving the service.
The Bar has appointed its first Complaints Commissioner, Michael Scott, to head a new complaints system directed at the public rather than being just an internal disciplinary procedure. And the Law Society has scrapped the Solicitors Complaints Bureau, and put in its place a re-structured Office for the Supervision of Solicitors (OSS).
The watchdog of the way the two professions deal with complaints is Michael Barnes, the Legal Services Ombudsman. Last week, after five years in the post, he published his final annual report. He leaves on an optimistic note. "For the first time for some years," he says, "there is now real hope that dissatisfaction with the way complaints about lawyers are dealt with can be reduced."
The OSS, launched last September under Peter Ross, is still struggling with a complaints backlog.Each of 70 case workers has 300 open files, and complaints can take months to process. But Mr Barnes praises its more user-friendly approach; it looks and sounds, he says, more like an organisation that is there to help people who have problems with their solicitors.
But he highlights two areas where the OSS must improve on the record of the ill-fated complaints bureau if it is to succeed. First, it must not find reasons why it cannot deal with a complaint. The bureau would often seize on the first indication that a complaint fell outside its terms of reference to "boot it into touch", he says. If a complaint concerned negligence (which can only be pursued in the courts) that was often cited as a reason why it could not be investigated. Yet often complaints had other aspects which the bureau could have handled.
In one case, a woman complained about the solicitors handling her divorce. She criticised "lack of information about costs, incorrect advice and failure to comply with instructions". The bureau told her they could not deal with the matter until the possibility of negligence had been canvassed. Mr Barnes points out that they could well have dealt with it: the chief gripe was over costs, but the bureau failed to find out whether the firm had met the Law Society's written standards on costs.
Secondly, the office must be a "stronger champion" of the rulebook and take a tougher line in enforcing matters of professional conduct. There is little point in the society drawing up 700 pages of highly detailed guidance if the complaints body is to interpret it freely, he says. In one case, solicitors took instructions from two clients on the same day to act against each other in a dispute over a debt. A week later the solicitors realised the situation and informed client Y that they could not act for him. He complained that they had acquired relevant knowledge of his firm and should not act for client X either. The bureau took no action. Mr Barnes says that the case should be reconsidered. The rules require the solicitors to obtain Y's consent to act for X and there was no suggestion they had done so. "If a disciplinary body starts to countenance 'technical' breaches or allows flexible interpretation of its rules," he says, "that is a slippery slope which inevitably leads to a decline in standards."
For the first time, the Bar's new system, launched in April, allows people to claim compensation for "shoddy work" by barristers. In limited circumstances, they may be awarded compensation of up to £2,000. Barristers can be ordered to reduce, refund or waive fees. A lay Complaints Commissioner, Michael Scott, has been appointed to oversee the system. But barristers will retain immunity over work done in court itself, as with negligence suits.
The new system, Mr Barnes says, is a "big step forward" although the Bar still lags behind the Law Society in the role it gives lay representatives when complaints involving poor service are involved. The new system should, in the longer term, change barristers' perceptions of complaints they are not always "bad news" and also their relationship with clients.
But he regrets that complaints will be barred over court work and urges the Bar Council to reconsider when the new system is reviewed. The Bar standards review report, under Lord Alexander of Weedon, QC, said the immunity rule was "obscure" to lay clients and would appear that "lawyers were raising technical legal defences to protect themselves by a form of special pleading".
He cautions the Bar against being too restrictive in its approach to the new powers. With both the Bar and the Law Society, critics are closely watching the way they handle complaints, one of the last areas of self-regulation. For the first time in years, there is hope of improvement. But if it turns out to be misplaced, "the pressures for a major shake-up of the system are likely to become irresistible".
Tales of woe
Complaints to the Legal Services Ombudsman in 1996 totalled 1,855, 11 per cent down on 1995. The total is just under 10 per cent of the total number of complaints made to the professional bodies.
- Of a total of 2,273 cases either finished, pending or awaiting a final report in 1996, 2,083 concerned complaints against solicitors, 187 barristers and three licensed conveyancers.
- The ombudsman has made 321 recommendations, of which 194 involved compensation to be paid and in 127 cases the complaint to be reconsidered. In 90 cases, no recommendation was made, but the professional bodies were criticised.
- In 1996 27 per cent of reports were issued in six months, but 59 per cent took six to 12 months and 14 per cent more than a year.
