The new complaints processes now put in place by the Bar Standards Board (BSB) were launched—not coincidentally—at the same time as the release of a survey conducted by KRC Research on the public’s attitude both to legal professionals and to making a complaint against them.
The nationally representative survey of 2,044, undertaken in March, reflects what Baroness Deech, Chair of the BSB, calls “rather a sad age when it comes to regulatory bodies” in which public cynicism has been stoked by failures in the financial industry. About a quarter of those questioned said that they “trusted” lawyers (politicians and estate agents tied at 1%) and 57% did not trust any of the professionals on the list. The potentially uneasy relationship between lay public and lawyer cropped up again when the sample was asked what would deter them from proceeding with a complaint: 39% agreed with “the odds would be stacked against me” and 35% agreed with “I would not trust the complaints procedure to be fair or independent”.
There is the hill which the Bar and the BSB have to climb and which the BSB hopes will be eased by its own independence and by the transparency and clarity of the new procedures. What matters of course is providing a satisfactory service which needs to be differentiated from the abstract “trust” and from the fact that the layman may not like what follows from the barrister’s duty to the court and therefore may wonder why the barrister is not doing what the client wants them to. One of the BSB’s own problems is making sure the public knows that they are there. When asked who they would first ask about a formal complaints process, the Internet and Citizens Advice Bureaux (CAB) came out ahead of “a regulatory body”. One wonders who the public consults on the Internet but, like me, Baroness Deech typed in “barrister complaint” and was satisfied to find that the Bar Council came up second. Nevertheless an outreach publicity campaign is planned including a “key relationship” with CABs.
Common sense is meant to be the “driving force” behind the new system, according to Sue Carr QC, Chair of the Complaints Committee. The emphasis is on dealing with matters at as low a level as is appropriate, in order to resolve things as quickly and inexpensively as possible. Matters will still go first to the Complaints Commissioner, but he can now refer it to chambers and the barrister can now agree to a determination by the Complaints Committee itself, which heretofore acted only as a clearing house. The Bar will have to get used to matters beginning in chambers since that is where things will start once the Office for Legal Complaints is operational. A course explaining it all has been devised by an independent company and can be delivered to chambers. The more serious matters will continue to be dealt with by the Council of the Inns of Court (COIC) Disciplinary Tribunals and Adjudication Panels which are not run by the BSB.
The BSB retains the belief that barristers are very good at keeping each other up to scratch. One of the stronger memories of Robert Behrens, the former Complaints Commissioner, was that barrister members of the Complaints Committee tended to favour stronger action against their allegedly erring colleagues than did the lay members.
It is well worth downloading from the BSB website the guidance for both complainants and barristers on the BSB’s process and also information about the Disciplinary Tribunal process (tinyurl.com/BSBcomplaints). It is useful now to know what the barrister should do in case of a complaint. Although he is not under a positive duty to say to the disgruntled client, “you may want to take advantage of the complaints procedure” he ought to know what the client will read and be told if he does. In addition, COIC and the BSB have produced sentencing guidance for breaches of the Code of Conduct. It is everything you ought to know before it happens.
David Wurtzel is Counsel’s consultant editor