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The Times
May 19 1998
The Bar has set up the profession's first complaints system.
Frances Gibb
reports on the first year under its new chief
Meet Mr Complaints
Mr and Mrs X had fallen out with their neighbour, Mrs Y. Mr X demolished Mrs Y's wall; police were called and he agreed to make amends but nothing happened for some time. During the delay, a barrister friend of Mrs Y wrote a letter to Mr X on his chambers notepaper, threatening to lay information before the local magistrates asking for Mr X to be summoned to answer a charge under Section 1 of the Criminal Damage Act 1971 unless he took immediate steps to make reparation. The barrister had not been briefed or instructed by a solicitor.
Mr and Mrs X complained and the barrister was found to have breached his professional code of conduct by supplying a legal service without instructions, and for "discreditable behaviour" in writing threats on chambers headed notepaper. He was suspended from practice for two months.
The case is one of the first to be handled under the Bar's new complaints machinery set up in April last year. It is the profession's first public complaints system and is headed by an independent lay Complaints Commissioner, Michael Scott. The idea was to offer people a speedier, more consumer-friendly service. Crucially, it also enabled people to complain about shoddy work or "inadequate professional service" as well as the more serious complaints of professional misconduct, which was all that they could do before.
It also involves lay people in that they sit on the panel adjudicating complaints of shoddy work, such as delay, rudeness, arrogance or not obeying instructions.
Last weekend Mr Scott, a former major-general, presented his first annual report to the Bar Council. "My view is that there's a line between a number of complaints which are healthy and where it becomes unhealthy and you can detect a thread of inadequacies in the system. I don't believe there is that thread. We live in a consumerist society and people are quick to reach for their lawyers."
He also points out that with 9,400 barristers in private practice, the complaints remain small in number and amount to about one per 1,700 cases or pieces of work handled by barristers. So the Bar's fears of barristers being deluged by dissatisfied litigants or convicted prisoners have not materialised. But if a system is to work, it must, he argues, be open, advertise itself and be available to people.
So far, he has looked at 532 cases of which 326 have been finalised. He referred 40 per cent or 140 to the professional conduct and complaints committee; the rest were dismissed. In 65 cases - about half of them - there was found to be shoddy work or the more serious professional misconduct.
He said in his report: "Any profession has its weak links and the Bar is no exception; a very small percentage of barristers is disciplined as a result of a criminal conviction. A slightly larger percentage makes mistakes through incompetence or cutting corners. Overwork or laziness leads to mishaps. Arrogance and self-importance result in rudeness and bombast. Sometimes, these can cause real disadvantage or distress to the complainants."
There is plenty of scope for improvement. Above all, Mr Scott wants to get rid of the restrictions on when he can award up to £2,000 compensation for shoddy work. Strong opposition to the complaints system, particularly from the Criminal Bar, led to a rule that means people can be compensated only if they have suffered a financial loss which would be recoverable in the courts. But many people suffer distress or inconvenience which cannot be quantified, Mr Scott says, and he should be able to award compensation for that.
Neither barristers nor complainants have been willing to try to resolve the matter through conciliation. Mr Scott says: "We encourage people to sort it out, but by the time they come to me they are pretty cross. And the barrister is not the one who immediately thinks of saying 'Sorry'."
He would also like more explanation given to people about the Bar's immunity from being sued for negligence - an immunity which consumer groups and others now argue should go. It means they cannot be sued over their work in court. And finally, he says, barristers can do more to avoid complaints in the first place. "The last thing I wish to do as a layman is to patronise barristers. But people going into court with no experience of courts or lawyers can be very intimidated. Perhaps some of the younger ones who have battled their way to becoming a barrister could be quite pleased with themselves and a bit short with someone who has not the same grey cells as they have."
The Bar, he says, must remember the importance of client care and of the need to treat clients as one would wish to be treated by a fellow professional.
How to prevent problems
Communicate: explain why the judge/jury did what they did, why a witness was not summoned, why a question not asked, why you have turned up when another barrister was expected, the relationship between a barrister and solicitor.
- Do not ignore client in conference with instructing solicitor.
- Avoid jargon (prima facie, affidavit, Calderbank Offer, McKenzie Friend). You are by definition clever - you do not have to prove it.
- Give client courtesy and care.
- Remember, saying sorry is not an admission of guilt.
- Get clerk to answer all letters and calls.
How many moans
Complaints to Dec. each year
1993.........................................347
1994.........................................359
1995.........................................446
1996.........................................431
1997.........................................551
Source: Complaints Commission annual report, 1997-98
