Law: Why do barristers fear this man?

Barristers have never been so much on the defensive. From the the fledgling complaints commission to the inquiry into QCs' fees and now proposals for reform by the Lord Chancellor, is it finally calling time at the Bar?
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The Independent Culture
VERY FEW letters of thanks cross the desk of General Michael Scott, the lay commissioner responsible for handling complaints against barristers. He is more likely to become the target of complainants who transfer their wrath from the barrister they are convinced wronged them, to Scott, when he dismisses their complaint.

One prisoner, however, took a more sanguine view. After hearing his complaint had been dismissed, the prisoner wrote to Scott: "I have even noticed you wrote to me in my language in order to help me understand easier. Keep up the good work. Thanks. PS I will win."

A year into his job as the Bar's first complaints commissioner - the new Legal Services Ombudsman, Ann Abraham, will be passing her judgement on his work on Monday (29 June) when she publishes her first annual report - Scott CB CBE DSO, still looks the very image of a modern general, with his narrow, brown-rimmed glasses, wide pin-striped suit, regimental red and blue watchstrap and precisely ordered office with its military prints on the wall.

However, Scott, who commanded the Second Battalion Scots Guards in the battle for Mount Tumbledown during the Falklands war, is well used to dealing with "disappointed" people. He shows considerable empathy and patience for the inarticulate and distressed.

"There is, perhaps, a little feeling among complainants that I am `one of them'. But I see myself as an umpire. I am not on anybody's side. I have no particular loyalty to the barristers. But at the same time have to protect them from frivolous and inappropriate complaints."

He may be paid pounds 60,000 a year by the Bar council, but he is no "lackey". His first annual report didn't pull its punches over those barristers who made mistakes through incompetence or cutting corners. His comments that "arrogance and self-importance result in rudery and bombast" prompted one barrister to write, accusing him of "pandering" to the man in the street.

He received 532 complaints, the highest on record. The majority came from members of the public, but some were lodged by judges, the Legal Aid Board and solicitors. The most common complaints centred on neighbourhood, matrimonial and prisoners' disputes.

Many of the complaints arose from misunderstandings about a barrister's role and duties to the court and legal aid fund. But, of the 40 per cent of cases Scott referred to the Bar's Professional Conduct and Complaints Committee (PCC), about half were found to involve prima facie evidence of misconduct or inadequate service.

But Scott is keen to put his criticisms in perspective. "There are 9,400 barristers practising at the independent Bar. If each do on average 100 things a year that could be complained about, such as writing an opinion or representing someone in court, that represents one complaint per 1,700 actions.

"The poor old barrister is an easy target at the moment with talk of `fat cats'. What the public doesn't realise is how difficult it is to become a barrister, how little you are paid at the bottom of the profession, and how much good work is done."

The only major change he is pressing for is the power to award compensation in cases of inadequate service. At the moment, compensation is limited to a maximum of pounds 2,000 where the complainant can prove financial loss which would be recoverable in law.

"We can make barristers remit fees, which is fine as long as the complainant has been paying for the case. But where a case is legally aided, the remitted fees go back to the Legal Aid Board. The Bar Council has been against allowing us to award compensation without qualification, because they felt it would open the floodgates."

Not everyone is so enthusiastic about the Bar's self-regulatory procedures. Earlier this month, the Fabian society called for the Bar to be stripped of its complaint handling powers and replaced by an independent body along the lines of the General Medical Council. Chris Swinson, the new head of the Institute of Chartered Accountants, has proposed that there be an independent body to oversee all self-regulated professions.

But Scott defended the current system. "If anything, if you have `chaps regulating chaps', you find they are much harder on their own than the public might think.

"I don't feel I am the last bastion between the bar and central regulation. I think the Bar has got it right by recognising that unless they introduced a strong lay element, they could be vulnerable. I think it is ahead of the game."

He also warned against "lumping" solicitors and barristers together. "There is a danger in putting us in the same camp as the Office of the Supervision of Solicitors. If solicitors and barristers weren't both called lawyers, they would be completely different professions."

He is prepared to take criticism on the chin. His office has been fined for delays in dealing with complaints and he has had one case sent back to him for reconsideration by Abraham. He followed it up, confirmed the same result and is now waiting for her conclusions.

One ongoing criticism of the Bar's complaint system is that it focuses too heavily on whether the barrister is right or wrong, rather than on the effect on the complainant.

Marlene Winfield, senior policy advisor for legal services for the National Consumer Council, echoed that point. "He has done well to get the complaints system up and running but he is doing it with one hand tied behind his back, as he himself admits. The combination of an extremely high standard of proof, the fact that in order to get compensation you have to show actual loss, and the immunity barristers have for their performance in court, is not really in the spirit of a proper complaints procedure.

"Both solicitors and barristers will go to the wall and demand every one of their rights, which is not the way to deal with complaints if the emphasis is on client care."

However, Scott is under no illusions about what a complaint can mean to a barrister. "It can mean you will never make QC or judge, or solicitors might not instruct you. If you are suspended, that is your livelihood gone. What if it is not justified?"

Michael Scott's Tips For Barristers

n Try saying sorry - it is not a legal admission of guilt

n There is no need to show off how clever you are

n Avoid jargon

n Make sure the client doesn't feel left out when you are consulting with their solicitor in their presence

n Always be sure that you pay your professional indemnity premiums on time

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