So, alongside the training we have been giving them in how to work in an Ombudsman scheme and how to navigate their way around our IT and office systems, we have also been putting them through structured training in the basics of legal services provision.
However, no matter how good the trainers – and our training is provided by Northumbria University Law School, one of the best in the market – no course can imbue every new member of staff with everything they are ever going to need to know about law and lawyers. And so they are making occasional mistakes – relatively small ones, I’m pleased to say, but mistakes nonetheless.
Chambers – “your firm”
It was no surprise to me therefore to get a letter the other day complaining about one such mistake. One of my investigators, investigating a complaint from a would-be litigant whose case had collapsed shortly before the date of trial, sent a letter to a set of chambers raising questions about the way “your firm” had treated the matter. Clearly wrong, and clearly a matter for both an apology and a spot of retraining. Both were duly promised and provided. But when I went to chat to the investigator to deliver the gentle rebuke, it all began to get a bit more interesting.
The complainant had instructed a barrister (via a solicitor, not a direct access case) about a possible claim, and had received some very gung-ho advice about the chances of success. Based on this, he had invested quite some time and money in preparing for the trial, only to be told with a few days to go that the barrister was now double-booked and the case was to be transferred to a colleague from the same set of chambers. The second barrister took one look at the case and advised that there was little prospect of success, whereupon the case collapsed in a heap, leaving the complainant out of pocket and very angry.
So what? There is nothing particularly unusual about that, you might say. Barristers are often double-booked - trials go on longer than planned and cases can come into the diary very late - and one barrister is entitled to take a view about a case which is contrary to that of a colleague. This sort of result is an unfortunate, but inevitable, result of the way things work. From a lawyer’s perspective, nothing much to investigate.
But that is from the lawyer’s perspective. The consumer-complainant standpoint is very different. He was encouraged to invest a lot of money on a particular course of action. He did nothing wrong: he was ready for trial as he had been advised. But then, all of a sudden, not as a result of any change in the case but just because of a change of barrister, there had been a 180-degree change in course. All the plans he had been asked to make were useless, and all his money wasted. From a lawyer’s point of view, no-one had done anything wrong. From a consumer point of view, there had been a palpable failure in the service provided.
Which raises an interesting question. If we find that both barristers had acted reasonably but the result, nevertheless, was poor service, then how do we square the circle? As I write, the investigation of this case is continuing.
The investigator was writing to the chambers because she reasoned that the issue might not have been with either of the individuals but with the system of clerking which allowed a case to be transferred from one person with one view to another with a diametrically opposite view. If this were the case, the responsibility might lie with chambers, rather than any of the individuals.
The investigator might not have understood the very important distinction between a law firm and a chambers (although, in these days of chambers’ chief executives and chambers contracting en bloc for work, she can be excused for not fully grasping the nuances). But she was seeking to get at a very important aspect of the case.
A team game…
The truth is that legal services are a team game now, and barristers are no longer individuals operating in splendid isolation but are part of that wider team. In this case, along with the two barristers and the solicitor (who has some very tricky questions to answer, too), there is the whole chambers machinery. That last element comes into play in almost every case we look at where a barrister is involved: along with examining whether or not the service the barrister provided was reasonable, we will also be looking at how the initial complaint was handled - almost always the responsibility of chambers, rather than the individual.
Nor is this going to get any easier. As I say, the days when the line that barristers are sole practitioners working entirely alone can be convincingly argued are receding into history. More and more barristers are opting for direct employment. Chambers are looking and acting more and more like corporate entities (not least for tax reasons). Direct access is on the rise. The world is changing.
…in a new world
And we are seeing this in practice. Last week, another investigator came to me about a case where a customer had gone to a solicitor’s firm and paid more than £1,000 for work which was never done (not least because the person who had agreed to do it had died soon afterwards).
When we looked into it, it emerged that the individual concerned was a barrister who had been co-sited in the firm for several years, doing the occasional piece of advocacy but, for the rest of the time, undertaking “work experience” under the supervision of the senior partner.
The firm’s attempts to argue that we should treat the complaint as being about the barrister, rather than them, are a bow to the old world. But we are operating in the new world, where such arguments look unlikely to succeed.
Adam Sampson, Chief Ombudsman and Chief Executive of the Legal Ombudsman.