Legal Ombudsman - November 2011

Adam Sampson, Chief Legal Ombudsman, looks at the impact of Alternative Business Structures on the Bar itself and its reputation, and at whether it is ever appropriate to name a lawyer involved in a complaint.

I know from the barristers I talk to that the term “Alternative Business Structures” is not exactly on the tip of every counsel’s tongue. So few of you I suspect have been following the fall-out from the Solicitors Regulation Authority’s recent announcement that the October deadline for their launch was not going to be met. But as with many of the changes the profession is facing, what is happening in one area of the profession potentially has major implications for their colleagues elsewhere.


For those who have been closer to the issues, the news scarcely came as a surprise: the profound nature of the change – allowing law firms for the first time to be owned by non-lawyers – meant that a speedy timetable was always going to be challenging. But one of the key points being discussed is a fundamental one: how we can ensure that the liberalisation of the legal market, a liberalisation which may well have very clear benefits for consumers - does not result in a dilution of the high professional standards which have always been required of lawyers.

Thus far, the debate has largely centred on a narrow issue about how to change the Rehabilitation of Offenders Act 1974 to ensure that the owners of the new legal providers are fit and proper persons.  However, the risk to consumers – and to the reputation of the profession – is far wider. Yes, there is a danger that some individuals with criminal records may try to find ways of buying into law firms. But the more profound threat to the profession, it seems to me, comes not from the risk of the occasional fraud but from a wider erosion of the traditional ethical and professional underpinnings of the profession.

The Bar’s reputation

And that threat is particularly challenging for the Bar. The success of the British legal profession, a success which shows itself in the use so many foreign nationals and firms make of British lawyers and British courts, has been built on the reputation of British lawyers for quality and integrity. And the Bar has been at the heart of that success. The Bar occupies a unique place in the legal profession – specialist, popular, erudite, with a market niche that other parts of the profession envy. They impact well beyond their numbers, only 10% of the profession but with a broader reach.

That unique position has its advantage. But it also has its price. It is very early days yet for the Legal Ombudsman and, given the relatively small number of complaints about barristers we have actually fully investigated (complaints about barristers form just 1-2% of our total workload), it is too soon to draw definitive conclusions. But one of the impressions we have already gained is that consumers of legal services have far higher expectations of barristers than they do of other types of lawyer. Clients, like everyone else, have profound respect for the role of the barrister. But if your reputation is higher than that of your colleagues, then the standards to which you are expected to adhere are higher too. So we see slightly more complaints about misconduct for barristers than other parts of the profession, for example.

For the Bar, reputation is vital. Anything which damages that reputation is a real threat to you. The ABS debate is therefore one which you should at least be aware of. No-one wants the reputation of the legal profession following the same trajectory as that of other professions such as financial services.

The “naming” question

But it is not just the debate about ABS.  The Legal Ombudsman is grappling with our own debates. We have just completed our consultation to decide in what circumstances we would ever name the lawyer or firm involved in a complaint. That is not because we are reluctant to make decisions: decisions are our stock in trade. It is just because it is one of the most thorny and contentious areas of our set-up. On the one hand, there is a general belief on all sides that the public has a right to know about firms who genuinely pose a threat to them, those who either because they have done something awful or have accumulated a large number of complaints, should be named; good lawyers can only benefit from the bad ones being outed. On the other hand, after two rounds of consultation, we have still had to grapple to get agreement on the criteria by which we can sort the good from the bad, the wheat from the chaff, the dangerous from the squeaky clean.

The real problem here is that, in the area of complaints, the usual binary judgements which the law encourages do not apply. Lawyers want us to arrive at a guilty or innocent verdict, to uphold or dismiss complaints. That is difficult. In many cases, even where the complaint is founded on a real error on the part of the lawyer, the problem is not as great as the complainant thinks it is or the impact as profound. And conversely, even when the complaint doesn’t seem to be rooted in any obvious piece of poor service, it is rarely the case when people complain to us that there is absolutely no reason for them to be upset. There is usually something which one can spot as a root cause: even if the service provided was exemplary, as in many cases it is, you can usually see points where the lawyer could have done more to manage the client’s expectations or deal more sensitively with their initial complaint.

The debate goes beyond the legal sector: we are also conscious of the pressure elsewhere from the Government, pressure on for example the Financial Ombudsman Service and Energy Ombudsman regarding banks and financial advisors and energy companies respectively, to move rapidly towards complete openness. On the other hand, we are very conscious of the current state of the legal market and the issues facing so many lawyers.

And in all that, we are particularly aware of the position of barristers. For larger law firms, as for major banks, being named for individual instances of poor service is not too worrying a prospect. For barristers, self-employed and trading almost entirely on their personal reputation, the consequences of being named are potentially far more serious. For all that the Bar Standards Board has for a long time published the names of those it has found to have committed conduct infractions, there are still real fears about the Legal Ombudsman doing the same for service.

At the time of writing, we have not yet fully resolved the naming issue. But we are not standing still.  We have begun to publish data about the sorts of complaints we receive. We have also continued to build our stock of anonymised case studies and disseminate them via columns like this. And, more recently, from the beginning of July we began to publish anonymised summaries of all Ombudsman decisions we have made. These are on our website for anyone who wants to see them and we hope, in time, to make them searchable so that you can begin to build a picture of the patterns of decision making and the sorts of remedies we order in particular sorts of cases.

For most barristers focussing on the next case, on the changes to legal aid, and the localised nature of the chambers’ environment, these debates are a remote and minor distraction. But the world is changing. And barristers would do well to keep a weather eye on discussions which in the past they could safely ignore.

Adam Sampson, Chief Ombudsman and Chief Executive of the Legal Ombudsman.

 

 

 

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Adam Sampson

Adam is the Chief Legal Ombudsman.