Overhauling the Complaints Process

David Wurtzel meets Sue Carr QC, Chairman of the Complaints Committee of the Bar Standards Board, and discovers how the new complaints procedure is working in practice


“Am I lucky to be here?” Sue Carr QC asks rhetorically when I meet her in her splendid room overlooking New Square. It is lined with ring binder files relating to her practice in professional liability (she is Chair of the Professional Negligence Bar Association) and, more relevant to our conversation, to her duties as Chairman of the Complaints Committee of the Bar Standards Board (“BSB”). She particularly loves the view of the sun rising over Lincoln’s Inn chapel. What with the demands made of her by her practice and by those committees, she is usually here in good time to see the sun rise.

 

The new complaints landscape

It might be considered a mixed blessing that her three year term as Chairman of the Complaints Committee is coinciding with historic changes from two sources: the recommendations made by the then out-going Complaints Commissioner, Rob Behrens, which she has had to implement, and the new structures brought about by the Legal Services Act 2007, with which she has to cope. I speak to her about how things have been going since the launch of the new procedures in March.


Resolving service complaints at local level

It emerges early on that these new procedures aim to effect complaints resolution at the lowest level commensurate with the complaint itself, beginning with chambers. Once the Office for Legal Complaints (“OLC”) is up and running at the end of 2010, all service complaints against barristers will have to begin in chambers, which will mean “massive changes in chambers’ life”. The BSB has started the ball rolling in this direction already by introducing a power to refer complaints to chambers. Some 15 per cent of complaints have been referred under this power so far. Nearly half of that 15 per cent has been resolved without further recourse to the BSB. This is advantageous for the consumer and the Bar, not least since it is likely to lead to quicker resolution. For example, many complainants often simply want to receive an apology. Sue Carr calls it “a good news story”, and she has been “singularly impressed” by what she has seen of chambers’ investigations. Chambers have long been obliged to have complaints procedures in place and it is encouraging that complaints are increasingly successfully resolved at the local level. Further, an accredited chambers’ complaints handling training course is now available, providing support for chambers and promoting good practice.


Handling disciplinary action

Barristers who find themselves in the unfortunate position of facing disciplinary action now also have the option of having appropriate complaints dealt with under a new “Determination by Consent” (“DBC”) procedure. This means that the complaint is adjudicated upon by the Complaints Committee, sitting en banc. The procedure requires the barrister to consent to the procedure and for the Committee to agree that it is suitable for them to deal with, ie there is no significant dispute on the facts and the matter would not warrant a suspension from practice or disbarment. DBC cases are dealt with on the papers and the barrister’s consent is required at all stages including to the final determination and sentence of the Committee. The procedure avoids the stress of a tribunal hearing and, again, is quicker—three to four months rather than six or more for a Disciplinary Tribunal. It has clearly found favour with the Bar, as 95 per cent of those given the option of participating in the procedure have readily agreed to do so.


The role of the Committee

Nowadays the Committee members are chosen by open competition on Nolan principles. Barrister members represent a full range of work done by the Bar; lay members (“we are inundated by high quality applicants”) have backgrounds such as accountancy, the police force and as members of NHS Trusts. Many of the complaints now dealt with by the Committee concern barristers who fail to fulfil their practising requirements such as completion of CPD hours and/or paying the practising certificate fee, and who then fail to answer BSB correspondence. Lay members are “invariably horrified” to find these failures to comply with basic conduct and administrative requirements (there are several hundred of them every year)—although ironically it is often the barrister members who tend to favour the more severe punishments. 

Disciplinary tribunals remain in place as before but for the first time the panels have the advantage of transparency-enhancing sentencing guidance. Until now, rather surprisingly for a profession based on precedent, the tribunal could use their experience and their judgment but had no written guidance to ensure consistency. They have the power to order a barrister to apologise, to pay a fine, or to suspend or disbar him from practice.

Monitoring the Committee’s functions, and indeed the complaints and hearings system as a whole, is the new Independent Observer, Alan Baines, who is going to audit the performance according to the BSB’s objectives and will audit the effectiveness and efficiency of the complaints and disciplinary system covering cases from cradle to grave. 


Future developments

There is more in the “soon to happen”’ category. By about the autumn of 2010 the OLC is likely to be operational. At that stage the BSB will lose responsibility for dealing with complaints about the service provided by barristers to their clients: this will transfer to the OLC but the BSB will retain jurisdiction over conduct matters (ie professional misconduct). It remains to be seen just how individual complaints will be allocated between the two bodies, where the consumer has complained about service and conduct or where the nature of the complaint is less than clear. Details of the OLC’s rules under which it will operate are currently out for consultation and barristers are urged to respond to this.

With the birth of the OLC the existing adjudication panels will disappear, as will the Bar’s power to order redress under its own systems. It is the OLC which will be able to order compensation and the return of professional fees of up to £30,000—these powers will be enforceable in the High Court—and failure to cooperate will become a breach of the Code of Conduct. Disappearing as well will be the Legal Services Ombudsman. At the moment she is able, on the application of complainants, to review decisions of the BSB’s Complaints Commissioner and the Complaints Committee in relation to both service and conduct matters. When the post vanishes there will be no oversight in relation to conduct matters.


A crucial role

Her duties with the Complaints Committee, which meets fortnightly, make Sue Carr a crucial member of the main BSB board, and part of the discussions involving who will regulate legal disciplinary practices. All this comes to an end at the end of 2010, when she will stand down from the post. She took it on after one of her former heads of chambers advised her that “timing in one’s career is never perfect” and it is quite obvious how much she enjoys it. She clearly never ceases to be fascinated by the complaints themselves, including the way that barristers deal with them. Barristers often do themselves no favours with the tone of their letters and which ironically can cast an unfortunate new light on the complaint. These unscheduled insights into the character of the respondent may be less frequent now that Bar Mutual is providing support in many cases including handling the correspondence. 

Although she lists “theatre” as an interest in Who’s Who, her work pressures mean that actually going to a play is something she can again only look forward to. Difficult though it is to believe that she ever had spare time, she appeared in the old Bar Theatrical Society’s productions, as Helena in A Midsummer Night’s Dream, and learned how to play against type as Lady Macbeth.

In a time of great change, Sue Carr remains an optimist. She sees the new world of complaints as having “bedded down quite well”; the “clear areas of success”’ have been “where we are interacting most with the Bar”. Her own commitment and experience has played no small part here.

David Wurtzel is Counsel’s Consultant Editor

 

Profile

1987: Called to the Bar (Inner Temple)
1989: Called to the New South Wales Bar
1995: A member of the Hooper Working Party on Pupillage
2001: Member of the Complaints Committee
2003: Took Silk
2005: Chairman of the Bar Council Working Party on Chambers’   Complaints Handling and Chairman of the Bar Council    Working Party on Counsel to Counsel Communications
2006: Vice-Chairman of the Complaints Committee
2006: Governing Bencher of Inner Temple
2008: Member of the Bar Standards Board
2008: Appointed Chairman of the Complaints Committee
2008: Chairman of the Professional Negligence Bar Association
2009: Crown Court Recorder


Areas of practice

Sue Carr QC (MA (Cantab) Trinity College) practises mainly in the field of professional liability and general commercial and insurance law. She is a trained mediator and an experienced arbitrator, and a regular lecturer to the profession and contributor of articles to the legal journals. She is tri-lingual (English, French and German).

 

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