Law: Watchdog without teeth

The solicitors' regulatory body is ineffective, slow - and under threat. By Robert Verkaik
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The Independent Culture
The Law Society and its under-performing watchdog, the Office for the Supervision of Solicitors (OSS), has less than three months to get to grips with a rising tide in the number of complaints brought against the profession. If the tide does not ebb by the time Ann Abraham, the Legal Services Ombudsman, publishes her report in June, solicitors may lose the right to regulate themselves and the OSS will be washed away. This was the thrust of Geoff Hoon's speech in the House of Commons last week when he introduced the second reading of the Access to Justice Bill.

Mr Hoon, the minister of state at the Lord Chancellor's Department, told the Commons that he thought the OSS was clearly failing, adding that Ms Abraham's report would confirm this. Firing an explicit warning shot across the Law Society's bows, he said: "We will not tolerate unjustified restrictive practices." Mr Hoon added: "It [the OSS] was set up in1996 to deal with complaints of inadequate professional service, and of serious misconduct by solicitors. The Office is the most recent attempt by the Law Society to get their complaints system right. It replaced the Solicitors Complaints Bureau. Yet like previous attempts it has not delivered sustained improvement. There is a good deal of concern on both sides of the House."

Today's report by the Office for the Supervision of Solicitors is expected to show that the crisis at the OSS is deepening. Currently there are 9,000 complaints outstanding and there is a six-month backlog of new cases. Complaints are growing by nearly 100 a week. Last year 31,672 members of the public complained about their solicitor, compared with 23,453 in1996.

It is understood that a number of back-bench MPs, led by the Culture Secretary, Chris Smith, angry at persistent complaints made by their constituents, have put pressure on the Lord Chancellor's Department to act.

A proposed amendment to the Bill includes provision to establish a new watchdog that would erode or even end self-regulation of the profession. It is understood that one option being considered is to enhance the powers of Ann Abraham to oversee the work of the OSS. The Legal Services Ombudsman will set new targets for the OSS and make recommendations for complaints- handling systems.

Mr Hoon is concerned that the decisions against solicitors made by Ms Abraham were being ignored by solicitors. "In future she will have the option of making binding determinations that have to be paid by the lawyers in default," said Mr Hoon. The Government made it clear that it would hold most of these powers in reserve until, or if, the Law Society showed it could not put its own house in order. The OSS is expected to counter today that it has not been given enough funding to keep up with the complaints, and that solicitors themselves should do more to put matters right at an early stage.

While complaints have risen steadily in the last three years, staffing levels have remained almost static. The situation was not helped last year when large numbers of complainants' files were waterlogged following the flooding of the river Leam in Warwickshire and a new computer system installed to speed up complaints handling was damaged. The damage is estimated to have cost the OSS pounds 1.5m.

However, the Law Society's president, Michael Mathews, says that only a tiny fraction of cases result in a complaint: of 15 million legal transactions each year only 1,000 cause trouble. The Society has already committed pounds 500,000 to the OSS for temporary staff to clear the backlog. Says Mr Mathews: "Steps are already being taken to deal with delays... We have commissioned the management consultants Ernst & Young to give an independent review of our complaints handling procedures." He says the Society will now work with the Legal Services Ombudsman and the National Consumer Council to find a solution.

Nevertheless, this cannot disguise the fact that complaints are breaking new records. Between 1997 and February 1998, the OSS received 3,000 a month, an increase of 30 per cent. And Ann Abraham's report last June found that complaints now averaged one for every three practising solicitors.

The situation is greatly exacerbated by the mentality of some solicitors. Last year Ms Abraham was in correspondence with one who tried to argue that he was not a solicitor at all. In what amounted to a desperate attempt to escape a ruling made against him by the Ombudsman, the solicitor tried to prove that for the purposes of the Courts and Legal Services Act 1990 he was not a solicitor and therefore outside the jurisdiction of the Legal Services Ombudsman. "This," points out Ms Abraham, "is an extraordinary example of defensiveness. He must have spent many hours coming up with this one. But frankly, if he had just written a cheque [to compensate the client] that would have saved us all a lot of time." The case itself was remarkably trivial. The solicitor had demanded payment from a customer for the trouble of going through his files. Ms Abraham says: "Those sort of examples may mean that I and the Government and opinion-formers lose patience with the profession, and self-regulation starts to look a bit shaky."

On this assessment the writing may already be on the wall for the OSS. Nevertheless, Mr Hoon did have some good news for the profession. Mr Hoon committed the Government to overturning a vote in the House of Lords to allow all properly qualified lawyers greater rights of audience. He said that, after six years of debate, consultation and advice, only a very small package of additional rights was given to employed solicitors.

A further boost was new powers to crack down on lawyers involved in possible fraud. The Government is now expected to announce a range of powers that will include the right to allow the OSS to raid solicitors' premises and search files. Currently the OSS can conduct raids only on a specific suspicion that a solicitor has stolen or misappropriated a client's money.

The Law Society has been pressing the Government to give it greater powers to intervene in solicitors' practices on a general suspicion of wrong- doing. The powers also include an increase in fines against solicitors who fail to deal adequately with customers' complaints. The question many solicitors must be asking themselves is: is this all too little and all too late?