Law: Getting results from unsatisfactory lawyers

Complaints against solicitors are rising, and it's high time to lay down the law.
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The Independent Culture
ANN ABRAHAM, the Ombudsman appointed last year to oversee the handling of complaints against solicitors and barristers, must sometimes despair of the profession.

She is currently in correspondence with a solicitor who is arguing that he is not a solicitor. In a desperate attempt to escape a ruling made against him by the Ombudsman, he is trying to prove that, for the purposes of the Courts and Legal Services Act 1990, he is outside the jurisdiction of the Legal Services Ombudsman.

"This," explains Abraham, "is an extraordinary example of defensiveness. But if he had just written a cheque, that would have saved us all a lot of time."

The case itself is remarkably trivial. A client wants to retrieve some documents from the solicitor, and the solicitor is demanding payment for going through his files.

Abraham says: "It is those sort of examples that may mean that I, and the Government, and opinion-formers, lose patience with the profession, and self-regulation starts to look a bit shaky."

But it will also be the high number of complaints which will determine the fate of the profession. At the moment, they are breaking new records. Between 1997 and February 1998, the Office for the Supervision of Solicitors (OSS) received 3,000 complaints a month, an increase of 30 per cent. And, in her own report, published at the end of June, Abraham found that complaints against solicitors now averaged one for every three practicing solicitors.

Both the OSS and Ann Abraham are devoting much of their efforts towards promoting consumer satisfaction at the earliest possible stage.

From the beginning of this year, all solicitors must have an in-house complaints handling procedure in place. Clients should know that, as a general rule, the OSS will only consider complaints which have first been dealt with by the firm's own complaints handling mechanism. One exception to this is where the complaint is one of misconduct. "There is no way we would put someone through that, and we would want to know about it as soon as possible," says an OSS spokeswoman.

Abraham says that the idea of proper in-house complaints procedure is not to create a "Byzantine system" that obstructs the resolution of complaints, but one that gives the complainant a genuine opportunity to settle the dispute.

The OSS is particularly keen to address the issue of costs, which is one of the main sources of complaints, and one that lends itself to being resolved through the in-house complaints procedure. Abraham adds: "Already, I can add my name to the list of those who have been exasperated by the, at times, incomprehensible refusal of solicitors to make any serious attempt to tell clients how much their case is going to cost." While the OSS cannot investigate claims for compensation above pounds 1,000, it can make unlimited reductions to a solicitor's costs.

But the OSS cannot deal directly with negligence claims, review the outcome of a court case, or review a decision by the Legal Aid Board.

Marlene Winfield, the senior policy officer at the National Consumer Council, says that the profession continues to adopt an intransigent position: "One of the biggest problems is that, when solicitors get complaints, they behave like solicitors. Anyone else providing a service would be trying to satisfy the customer."

As a result, too many cases go too far. What begins as a series of trivial errors, ends in a case for negligence. Peter Wylde, a partner at law firm Irwin Mitchell, has a reputation as a lawyer who likes to take cases against incompetent or negligent solicitors. Most of these cases involve either cut-price conveyancing or court actions which have been struck out for delay: "Solicitors who are still on the record [in court cases] when a case gets struck out are likely to be at fault, even if the client should also carry some of the blame." Wylde says that because clients are often not aware of how long a case should run, the first time that they know there is a serious difficulty is when the court strikes out the action.

Surprisingly, Wylde's largest source of solicitors' negligence work is from solicitors themselves - either those who are the subject of the complaint, or those who do not wish to act against a fellow solicitor in the same town.