If your lawyer is an ass ...

... how do you get compensation? Jean Eaglesham sees if a new complaint s procedure will help
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The Independent Online
Estate agents, gazumping, surveys, getting a mortgage - it can all seem too much. Then there are solicitors.

Take the solicitors who sent a woman a cheque for pounds 800 too much after she had sold her house. Six months later they demanded the money back when they realised their mistake. Then they threatened to sue her when, having lost her job, she offered to pay the money back in pounds 10 monthly instalments, rather than the pounds 50 a month they demanded.

Or take the case of the solicitor who was introduced to some borrowers by a mortgage broker and persuaded them to sign up for a remortgage that paid the broker a pounds 3,000 fee. The solicitor refused to admit liability for not warning that the fee was excessive.

In both cases the affected people complained to the Solicitors Complaints Bureau (SCB). This is the complaints arm of the Law Society, the body which promotes the interests of solicitors as well as regulating them. In both cases the SCB rejected the complaints. Indeed, it refused to investigate the remortgage case on the grounds that the complainant had signed a form agreeing the fee.

The cases came to light because those concerned took their complaint to the independent Legal Services Ombudsman, Michael Barnes, who ordered that compensation be paid.

Only around 10 per cent of the 19,000 complaints to the SCB each year find their way to the ombudsman, and complaints cannot be considered by him until people have put them to the solicitor concerned and the SCB. But given that the Law Society's research found last year that two-thirds of people who complained to the SCB were "very dissatisfied" with the outcome, the ombudsman says "clearly a large number of people are simply walking away in frustration".

Stung by criticism of the inadequacy of its complaints system, and the perception that it was biased towards solicitors, the Law Society has reformed the SCB. The most obvious change is in the name - goodbye SCB; hello the Office for the Supervision of Solicitors (OSS). Peter Ross, OSS Director, insists the change is "not window-dressing". But he also admits that it's "not a radical change in the structure or approach to our work".

Critics are unimpressed. Marlene Winfield of the National Consumer Council says: "We remain to be convinced that a body that isn't independent is going to exercise sufficient power over the [legal] profession." The OSS is funded and largely staffed by the Law Society, although its work is overseen by a committee including non-solicitors.

The question of whether or not the new body has teeth matters, partly because anyone complaining to a solicitor can feel the odds are stacked against them. As Mr Barnes says: "There is a natural tendency, because they are lawyers, for solicitors to adopt a defensive stance."

Other areas where you could run into problems include:

q Divorce. The combination of marital angst and lawyers can be an explosive one. Michael Drake of solicitors Collyer Bristol does not accept that lawyers make a bad situation worse. "I'm a great resister of the argument that matrimonial lawyers create conflict, rather than solve it. My experience is that if a lawyer creates conflict it's because the client has been downtrodden and pushed around until they realised what their rights were," he asserts.

Nevertheless, divorce provides a rich seam of complaints about solicitors. "There is perhaps an unconscious tendency in the profession to regard matrimonial work as the poor relation, and for the SCB to acquiesce in lower standards for that reason," the Legal Services Ombudsman said in his last report.

He cited as an example a case where a solicitor forgot to make a decree nisi absolute for over four years, leaving his client under the delusion that she was divorced when she wasn't. The SCB decided the solicitor's bill should be reduced by just pounds 150.When the woman appealed, the SCB decided that pounds 150 was too generous and awarded pounds 61.95.

q Investment advice. "I don't see the perception of bias as a problem because solicitors attract a low level of complaints in the area of financial services," says Richard Larner of the Association of Solicitor Investment Managers. But, when questioned, he admitted that the SCB doesn't have any breakdown of the number of complaints. There's no evidence that solicitors are any more immune to making mistakes, or breaking the rules, when giving advice on financial services than on anything else.

q Wills and probate. Problems range from badly drafted wills to the incompetent handling of estates, with beneficiaries being sent the wrong amount of money. But the main bugbears are excessive delays and charges. Many complaints are down to the client being suddenly handed a huge, unexpected bill - a practice known among lawyers as "ambush charging". As Marlene Winfield of the NCC says: "One of the biggest problems is that solicitors don't provide enough information at the outset. They give you the sort of excuses for not doing this that they themselves wouldn't accept from a plumber or builder."

So, if you do use a solicitor, make sure you get a clear outline of the charges at the start. And, if things do go wrong, be prepared to fight your corner and resort to the ombudsman. Going to the OSS and the ombudsman costs the complainant nothing. The ombudsman's recommendations are not binding, so you should not rule out the possibility of having to take your solicitor to court.

q The free leaflet `What To Do If You Are Dissatisfied With Your Solicitor' is available from the OSS on 01926 820082.

Jean Eaglesham works for `Investors Chronicle'.

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