Law: When all else fails, complain here: Michael Barnes, legal services ombudsman, tells Barbara Lantin about his task of investigating grievances against the profession
Friday 10 December 1993
At first Mr Barnes - about to embark on his second three-year term as ombudsman - is studiedly discreet about the objects of his investigations. 'There are many different kinds of firm - big, small, efficient, inefficient,' he says guardedly. He continues more communicatively: 'I do think there is still a lot that many solicitors' firms could do to make themselves more efficient. Most complaints referred to me - about 55 per cent - are basically about poor service: delay; not answering letters; not keeping the client informed of the progress of the case.
'An overwhelming majority of practices are two-to-five partners in the high street and most of the complaints I see are about such practices. This does say something about the standards of service provided by such firms. Delay is a problem for so many clients. Solicitors really do need proper systems for regularly reviewing the progress of work they are doing, in order to make sure that they are taking the next action at the time it needs to be taken, and not reactively when the client writes a letter. Not enough firms have these systems.'
Although ombudsmen are a growing band (there are currently around 15), Michael Barnes is one of only a few with statutory powers working in the private sector. The 1990 Courts and Legal Services Act brought forth the legal services ombudsman in response to public concern about complaints against the legal profession, and defines his powers.
Last year Mr Barnes made either a recommendation or a formal criticism of the professional body in 30 per cent of the 761 investigations he completed. In 45 cases solicitors' firms were asked to pay compensation to their clients, ranging from pounds 250 to pounds 2,000. The single miscreant who refused to pay found the case publicised in a display advertisement in the local evening newspaper in accordance with the terms of Section 29 (9) of the act.
As you might expect, divorce and family work lead the field. Perhaps surprisingly, however, probate has beaten conveyancing to second place, though only just. Property disputes and employment problems come next. Apart from poor service, the main reasons for complaint are unprofessional conduct (22 per cent), lost or withheld documents (11 per cent) and information on costs (10 per cent). Mr Barnes expects the overall picture to improve following the publication of the Law Society's practice management standards and the Legal Aid Board's own requirements for firms seeking a legal aid franchise, together with the growing interest in BS 5750, the British Standards Institute quality criteria. 'Standards of this kind are terribly important because they relate to the administration of the practice,' he says. 'I would be very surprised if firms that adhered to these standards were not less likely to be complained about.'
Mr Barnes, the one-time MP for Brentford and Chiswick and the former director of the UK Immigrants Advisory Service, has strong views about some of the methods practised by solicitors, who account for more than 90 per cent of the complaints to his office (barristers account for 7 per cent and licenced conveyancers for less than 1 per cent). Inadequate information about charges particularly angers him. Although he welcomes the stronger line on 'ambush charging' taken by the Law Society and the SCB, Mr Barnes believes that some firms are still breaching the spirit of the guidelines on the subject. 'I feel some solicitors inform clients about charges in a slightly misleading way. They quote an hourly rate with an 'uplift' of up to perhaps 40 per cent for 'care and attention'. I find this mystifying: if clients are not paying for care and attention what on earth are they paying for? It seems to me that hourly rates have reached such levels that some solicitors are embarrassed about quoting them in a clear and unambiguous form.'
The treatment of non-executor beneficiaries by some solicitors is a continuing cause of concern. 'Because they are not clients, beneficiaries do not have the standing to make an effective complaint. Coupled with that, there is still in certain parts of the legal profession a surprising prejudice against them. The approach is that they have no business complaining and that they are simply being greedy.
'This is a totally unacceptable attitude which the Law Society should do more to counter. I believe the beneficiaries are the most important people in the administration of an estate because they are the people to whom the deceased willed his or her possessions. The administration should be settled as soon as possible with the minimum amount being creamed off in professional fees. And particularly where there is a delay in winding up an estate, the SCB should take a more interventionist line with solicitors and not insist that the beneficiaries wait until the administration is complete before lodging a complaint.'
Mr Barnes claims some credit for the forthcoming extension of the remuneration certificate system to enable residuary beneficaries to challenge solicitors' costs where the only executors are solicitors. However, he feels it does not go far enough. 'I am disappointed that the Law Society hasn't gone further. In my view all paying third parties should have access to a remuneration certificate, including tenants in landlord and tenant cases,' he says.
While some would undoubtedly like the ombudsman to confine his duties to settling individual complaints, he considers that his role extends to influencing policy. 'The 1990 Act specifically gives me the standing to pass on the lessons that come out of the case work,' he says. 'I can make recommendations both to the professional bodies and to the Lord Chancellor's Advisory Committee on Legal Education and Conduct, thereby contributing to the raising of professional standards generally.'
His achievements in this direction so far include improvements in the way complaints are handled by the SCB; a more positive attitude towards third party complaints, particularly the other side in matrimonial cases; the tougher line on cost information. Nevertheless, he is looking for further improvements in all these areas.
Does he ever feel at a disadvantage in not having a legal background? 'I think Parliament was right to decide that the legal services ombudsman should not be a lawyer because the perspective a lay person can bring to the way complaints are handled outweighs the disadvantages. The downside is that a lay ombudsman sometimes finds it difficult to see through the legal complexities that may cloud the rights and wrongs of a complaint. However, I have a legal adviser and it is always open to me to seek counsel's opinion. I am sure that the legal profession has tried on occasion to pull the wool over my eyes and that I am not always aware of it. But the more experience I have in this job, the harder I hope they will find it to do that.'
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