England & Wales : Legal Ombudsman criticised as ‘name & shame’ policy hit by lawyers protests over insurance costs, second consultation now underway

Not so rosy : Legal Ombudsman hit by accusations of failing consumers by delaying the naming of crooked lawyers. ENGLISH LAWYERS PROTESTING against being named & shamed have caused a spectacular delay to the much anticipated policy of publicly identifying serial crooked lawyers in England & Wales by the Legal Ombudsman (LeO), the ‘independent’ regulator of complaints against solicitors south of the border after it was revealed yesterday the LeO has been forced to put on hold any plans to publicly ‘out’ solicitors & law forms who continually fail their clients after ‘concerns’ expressed by lawyers who are worried their indemnity insurance fees might go up if consumers & insurers were made aware they were risky to deal with.

Ex-Law Society of Scotland Chief Douglas Mill threatened legal action over complaints reforms in 2006. In a move reminiscent of the Scottish Parliament’s climb-down over some aspects of regulation changes in summer of 2006 contained in the Legal Profession & Legal Aid (Scotland) Bill after the then Chief Executive of the Law Society Douglas Mill threatened MSPs & the Scottish Executive with legal action against plans to bring in ‘independent regulation’ of complaints against solicitors, the Legal Ombudsman has now ‘delayed’ the introduction of identifying crooked lawyers in England & Wales by launching a ‘second consultation’ on the naming & shaming policy after being hit by protests from solicitors and the Law Society of England & Wales who are against any moves to publish complaints outcomes or identify solicitors & law firms who fail their clients.

Reacting to the Legal Ombudsman’s announcement to delay a decision about whether to identify law firms subject to complaints in England & Wales, Dr Dianne Hayter, chair of the Legal Services Consumer Panel, said: "This excessively cautious, and consumer-unfriendly, decision will be a huge let down for present and future clients. It completely flies in the face of government policy to empower citizens by opening up data on provider performance.

Ms Hayter continued : "In its first big policy test, the Legal Ombudsman has fallen for spurious objections from the legal profession for which they have provided no evidence. This decision puts second the needs of consumers who depend on legal advice at critical life moments, but struggle to tell a good lawyer from a bad one. The only winners from today's announcement are the small minority of firms that persistently fail consumers - their poor behaviour will now not be unmasked. This is vital information before a client engages a lawyer. The Legal Services Consumer Panel will continue to fight for consumers on this issue".

The Legal Ombudsman has today published a further discussion paper on the naming & shaming policy Publishing our decisions an evidence based approach (pdf) while also launching their ‘second consultation’. In the latest discussion paper, the LeO reveals the legal profession in England & Wales appear to be more concerned with potential rises in insurance premiums to their Professional Indemnity Insurance schemes, (the English equivalent of the Law Society of Scotland’s notoriously corrupt Master Policy run by notorious insurance brokers Marsh UK) than raising their own standards of service to avoid complaints in the future.

The LeO’s report reveals : “The Law Society [of England & Wales] were concerned that if professional indemnity insurers had access to complaints data it might increase the costs of the insurance to certain types of lawyers and this could impact on diversity in the profession. Birmingham Law Society mentioned that lawyers working in areas funded by legal aid could be particularly affected; they were concerned that the wrong approach could “drive practitioners out of important areas of law upon which society as a whole is heavily dependent." An individual lawyer alerted us to a possible impact on larger firms who bid for public sector contracts; they felt that publishing complaints data might affect the business of such firms.”

“Some law firms were also concerned that there might be an impact on wider access to justice. They pointed out that firms might start to refuse cases from people they felt would be likely to complain in order to avoid having a complaint published. The types of consumers they felt who might be affected were those with mental health problems or social issues. Finally, barristers felt that they would be particularly affected by our publications scheme, with the Chancery Bar Association explaining that: “the barrister, as an individual practitioner with a relatively small client base, would suffer far more from being named... than would other service providers.”

“The high street solicitors that took part in the research said they were concerned that our approach to publication could impact on the reputation of local firms. Many raised the idea of what they described as the „problem client‟ – a consumer who might purposely complain in order to damage a firm‟s reputation. The majority also thought there would be a larger impact on sole traders because they tend to be known locally and rely on a smaller client base. Larger practices were thought to be better able to deal with complaints and so less likely to have a complaint presented to us. The solicitors we spoke to also raised the issue that damage to reputation could impact on whether solicitors were selected to be in lenders panels to conduct regular work relation to the home buying and selling process. They also argued that it might impact on professional indemnity fees and that firms might have to pay higher insurance premiums.”.

The consultation paper released by the Legal Ombudsman also revealed consumer groups & even some media organisations expressed their wish to see all complaints information published and solicitors named & shamed over their poor service. The LeO’s report revealed :

“The Legal Services Consumer Panel (there is no equivalent organisation in Scotland) said that the benefits to consumers far outweighed the costs, and reminded us of the current drive in society to “harness consumer power enabled by the ability of the internet to spread word of mouth rapidly and on large scale”. Meanwhile, the National Consumer Federation said: "withholding information on firms complained about would deny consumers that access and restrict their ability to collectively play their necessary role in raising standards in the legal services market.”

“Which? said they were concerned that: “if there isn’t more openness, then websites such as „solicitors from hell‟ will just grow and grow; this is unregulated, unrepresentative and likely to be unfair and/or misleading to both lawyer and consumer". The Legal Service Commission argued that our complaints information would help them to do their job better so they have a full picture of the performance of the providers they use for publicly funded work. Guardian News and Media said that "any restriction on the right to freedom of expression must be justified as necessary in the public interest, and our view is that the anonymising of complaints would be a disproportionate limitation on the right to information".

The Legal Ombudsman responded to the solicitors concerns, acknowledging much of what was said by the legal profession. The LeO said : “Having weighed up all the evidence, we can see that our approach to publication is likely to have an impact on the legal profession. There is a risk that it could have a disproportionate impact on certain types of firm or certain fields of law, and as a result it could reduce access to legal advice and assistance for some consumers. However, we also believe that the evidence in this area is limited – we cannot say from what we know, or what you have told us to date what the impact will be, as it is challenging to find robust evidence about the impact of an approach that has not been implemented yet.”

The Legal Ombudsman then went onto say it would take more time to gather evidence, launching today’s unprecedented ‘second consultation : “We are keen to ensure that our processes are always fair, and so we are taking the time to gather more evidence on the potential impact of the different approaches available, before making a final decision about some of the more sensitive aspects of publication, such as identifying individual firms.”

Today, the Legal Ombudsman has announced a second consultation, stating : Based on the evidence received, we have now decided what we think it is appropriate for us to do next. We would like to invite you to input your views on our preferred approach, which is outlined in the consultation document Publishing our decisions an evidence based approach (pdf). In this document, you can also find out more about the evidence we gathered as part of the first stage of the consultation.

As this blog has a wide readership throughout the UK, I would urge you all to participate in this consultation, which will run from 31 March to 30 June 2011. Even though the matters under discussion affect England & Wales and not Scotland, your input and decisions to name & shame ‘crooked lawyers’ in England & Wales will ultimately have an effect or an influence on complaints naming policy in Scotland, therefore the more consumers in Scotland who participate in the English survey, the better.

You can send comments on what kinds of details you think should be published about complaints in England & Wales to the Legal Ombudsman by email to consultations@legalombudsman.org.uk or by post to : Janet Edwards, Legal Ombudsman, PO Box 15871, Birmingham, B30 9ED by 30 June 2011.

Scottish legal regulators the Law Society of Scotland, SLCC & Master Policy operators Marsh all stand to lose out if crooked lawyers are named & shamed across the UK say legal pundits. A legal insider speaking to Diary of Injustice this afternoon alleged there may be plans by the legal profession in England & Wales to raise a collective legal action against the LeO if the policy of naming & shaming goes ahead although he said any threat of such action would not go down well with the public when exposed in the media.

He also claimed the Law Society of Scotland are active in the discussion over complaints identification, alleging the Law Society of Scotland is seeking to prevent the policy of naming & shaming crooked lawyers in England & Wales taking hold, out of fears it may result in a similar trend in Scotland.