The Legal Services Ombudsman Bill may not meet the needs of those who experience problems with members of the legal professions
AS THE controversy concerning rogue solicitors Michael Lynn and Thomas Byrne raged last year, politicians of every hue demanded changes in the regulatory regime for lawyers.
The Government promised that this would be tackled by its pending Legal Services Ombudsman Bill.
Members of the public could have been forgiven for assuming that this body would be an independent port of call for those who had bad experiences of members of the legal profession and their complaints procedures, and that there would be a person they could go to who would hear their complaint and adjudicate on it, with appropriate sanctions.
That is not what this Bill provides for. It provides for the appointment of a Legal Services Ombudsman, who cannot be a practising solicitor or barrister, and who will have four functions: to receive and investigate complaints; to review the procedures of the Bar Council and the Law Society for dealing with complaints; to assess the adequacy of the admission policies of both bodies to the professions; and to promote awareness among the public of the procedures of the professions in dealing with complaints.
However, the rest of the Bill makes clear that, while the Ombudsman can “receive and investigate” complaints, this only refers to complaints that have already been received and processed by the complaints bodies of the Law Society and the Bar Council themselves. These are the Law Society itself in the first instance, and the Solicitors’ Disciplinary Tribunal; and the Professional Conduct Tribunal of the Bar Council and its Professional Conduct Appeals Board in the case of barristers.
All these bodies deal with breaches of the various Solicitors’ Acts in relation to solicitors, and of the code of conduct of the Bar Council in relation to barristers.
An issue that arises immediately is that not all matters that give rise to complaints by clients of the legal professions are covered adequately by these documents. For example, details of appropriate fees, and of adequate notice in advance of the amount of fees likely to be incurred, are dealt with in only vague terms, and were only introduced into the Bar Council code of conduct two years ago. Other issues, like basic courtesy and efficiency, can be of great concern to clients, but be poorly defined. The barristers’ code of conduct is on the Bar Council website, and the Law Society’s website explains how to make a complaint.
But the language of the code of conduct and of the Solicitors’ Acts is, inevitably, legalistic and not very accessible to many readers. The process of making complaints is also essentially a legalistic one, putting an unrepresented person at a disadvantage.
The Solicitors’ Disciplinary Tribunal at least holds its hearings in public, and they are reported by the media, which gives some transparency to the process.
This is not the case with the Bar Council’s Professional Conduct Tribunal and its Professional Conduct Appeals Board.
None of this falls within the remit of the proposed Legal Services Ombudsman, who will only be able to examine the process of handling the complaint, and, if it is found necessary, referring it back to these same committees. It can also order modification of the amounts paid by the Law Society out of its compensation fund.
However, this fund only compensates people for money lost as a result of dishonesty by a solicitor.
There is no provision in the process, or in the Bill, for people to be compensated for the stress and less definable losses they endure as a result of incompetence by their solicitor, compounded by the whole complaints process itself.
There are other ways in which the Bill reveals the influence of the professional bodies, who will be funding the office of the ombudsman’s office.
For example, a person can only be employed by it, and his or her level of remuneration set, with the consent of the Minister who must have first consulted with the Bar Council and the Law Society. Imagine the outcry if the Financial Regulator could only employ staff following consultation with the banks.
The ombudsman will be able to report to the Minister on the performance of his or her functions, so this could, perhaps, provide a basis for seeking changes to the legislation in the future. Maybe.