Legal Ombudsman - September 2012

sept-legalombudsmanBarristers in the new legal landscape must ensure they provide clients with clear advice on pricing and funding options and a clear route to redress, says Chief Legal Ombudsman, Adam Sampson

The vernacular in legal circles has referred to a “changing” legal sector so often in recent times that the phrase has inevitably become somewhat hackneyed. Since the Legal Services Act 2007 (LSA 2007) came into being, we’ve all been anticipating a big shift, one that would send us towards a full-blown commercially driven legal sector.


But rather than LSA 2007 signalling a sudden eruption on a scale of the Yellowstone Caldera, in reality, most of the changes have occurred incrementally, with scattered geysers springing up over time as part of an ongoing post-LSA 2007 legal volcanism.

From an ombudsman perspective, this may be a good thing. The relatively slow pace of change means that we’ve been able to take stock and assess how new commercial products and services will affect the number and type of complaints we receive, and the implications for the edges of the Legal Ombudsman jurisdiction. There are also ethical challenges being thrown up as innovative funding models (like fixed price and conditional fee agreements) and legal insurance fill the gap left by dwindling legal aid access. And, of course, the alternative business structure (ABS) bandwagon is now up and running, resulting in the introduction of high street chains to the legal market.

Bar innovations

Perhaps surprisingly – given its deep legal traditions – two of the biggest innovations have actually come from within the Bar. I think it’s safe to say everybody was thrown by the Stobart Group’s (yes we are talking about a lorry fleet business) recent entry into the legal services market as it capitalises on new public access rules. And following closely behind them were two junior barristers offering consumers “fixed-fee” legal advice via their “Advise Me Barrister” website.

In theory – at least according to their supporters – these developments are great news for consumers. Stobart claims that its model of delivering barrister’s services will be up to 50% cheaper than if provided via a solicitor as it effectively cuts out the middle man. And it seems that barristers are willing to work within these new commercial ventures. Reports show that a number of them, including QCs, have signed up to Advise Me Barrister.

Of course, this drive to commercial innovation is not limited to the Bar. As I recently reported in my annual report, an increasing share of my work relates to complaints about new methods of consumers accessing legal services. Legal expenses insurance, fixed price models, conditional fee arrangements – all of these feature large in my workload.

And in a world where traditional ways of enabling people to access legal help, such as legal aid, are under pressure, new ways of making law more accessible are welcome. But there is a huge danger that increased accessibility goes hand in hand with increased consumer confusion. One case I cite in the report involves a client being pursued for costs of around £15k by a supposed “no win, no fee” company – and for a case which never even made it to court. In another example, a client promised a fixed price service ended up being expected to pay significant additional costs. At the same time, a separate piece of research we have commissioned has shown that only 11% of purchasers fully understood the terms of their legal expenses insurance.

Much of this, as I say, concerns solicitors rather than barristers. But we know that barristers are increasingly interested in finding ways of increasing their accessibility: a report from 2010 by barristers’ chambers Hardwicke, “Direct access to barristers”, revealed survey results in which twice as many of its respondents (potential clients) had instructed a barrister directly compared to a previous survey in 2008.

As members of the Bar become more closely involved in commercial innovations, they have to bear in mind the potential lessons from cases such as this. Online, fixed price services and the like may look like a great way of making direct access affordable for everyday people, but barristers involved with such schemes must ensure they are clear about what customers will get for a fixed fee and what, if anything, might be chargeable over and above it. In the case of online services, they need to make sure they have an explicit understanding of how the venture will work with the company administrating the website – since there are risks they won’t fully understand the barrister’s business if their background isn’t in law.

Changing nature of complaints

So we may expect the nature of complaints about barristers to change. Up to now, complaints about barristers have fallen into two main categories: failure to advise and failure to follow instructions. The first of these is by far the most important: 41% of complaints about barristers were due to a failure to inform a client properly about certain aspects of a case or about the options available to them.

With changes to the public access rules, the trend may be towards an inevitable upsurge in complaints about cost, bringing complaints about barristers closer to the pattern of general complaints across the Legal Ombudsman. Cost is the biggest cause of complaints generally, accounting for around 20-25% of any that we see; at the moment this figure is 11.5% for barristers.

But that is not inevitable. The Bar has a long and proud tradition of customer service and by seeking to learn from the mistakes made by peers in other parts of the profession – mistakes of which I see far too many – barristers can seek to ensure the quality of their service to customers is maintained, and complaints about costs prevented. It should be an aspiration for the Bar to keep cost complaints below that of the rest of the profession in spite of the cultural shift quickly befalling it, particularly as it has the benefit of our hindsight.

If the Hardwicke report is anything to go by, early signs are fairly positive. The “Direct access to barristers” survey also revealed that less than half of respondents thought barristers were “out of touch with commercial realities”. In the same study, barristers were also perceived (by a slim majority) to be offering better value for money than solicitors.

Signposting

While I’m pursuing the theme of transparency and clear information, I think it’s also worth mentioning signposting. This is something we’ve alluded to in our response to the Bar Standards Board’s consultation on public access rules. The paper suggests a number of changes to the model client care letter and guidance to barristers, clerks and consumers to ensure they can make an informed choice.

I agree that signposting provisions are important, since they will allow consumers access to information that informs their choices. Funding options are becoming ever more important to consumers as financial strains take their toll. So, consumers using public access rules should be referred to the Legal Services Commission and the Legal Aid Calculator as standard.

In addition, there are organisations such as Community Legal Advice and the Law Centres Federation as well as a number of locally based information centres that barristers might be minded to signpost customers to. A key aspect to making public access work will undoubtedly be helping those consumers who lack the confidence to approach barrister’s chambers or who simply lack an understanding of how the legal system works to get that confidence by having the relevant support.

Finally, barristers need to take all reasonable steps to ensure a client has been informed of their right to complain. This means putting a robust complaints process in place and, if it can’t be resolved at the first tier, making sure they know who to come to next. A failing on the part of lawyers has been signposting to the Legal Ombudsman in the past. It’s a constant thorn in our side and may go some way to explaining why complaints aren’t at the levels we projected last year. But the key word here is “reasonable” – there is no need from my perspective for barristers to slavishly signpost people who have already been signposted in our direction or who would never qualify under our scheme rules. The last thing we need to be doing is adding yet another layer of damn fool bureaucracy to the legal system.

All of what I’ve talked about boils down to a simple notion, namely clear information. In a nutshell: clear pricing, clear advice with regards to funding options, and, if all else fails, a clear route to redress.

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

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Adam Sampson

Adam is the Chief Legal Ombudsman.