Legal Ombudsman moving to name & shame crooked lawyers in England & Wales, crooked Scottish solicitors records to remain protected by secrecy for now

Consumers in England & Wales may expect to find out which lawyers & law firms are crooked while Scots will not. AS DEMANDS GROW for increased consumer protection against poor legal services throughout the UK with the public identification of poorly performing solicitors & law firms to enable consumers to better & more safely chose their legal representatives, the Legal Ombudsman (LeO) has now published the responses to its latest consultation on the subject of an evidence based approach to publishing complaints decisions involving ‘crooked lawyers’.

While consumer groups & organisations in England & Wales as well as the UK Government are hugely supportive of the LeO’s eventual move to name & shame crooked lawyers, the legal profession south of the border in the form of the Law Society of England & Wales, law firms & solicitors groups are against the move, citing a number of reasons solicitors generally prefer the public not to know which lawyers are more crooked than others or the exposure of those in the legal profession who have complaints lists a mile & a half long.

Legal Ombudsman for England & Wales, Adam Sampson.While some of the consumer community have viewed this latest consultation as a delaying move due to concerns over what action the legal profession may take against the LeO if naming & shaming had been implemented earlier this year, Legal Ombudsman Adam Sampson, writing in the Law Gazette on the subject of naming & shaming rogue lawyers & law firms in England & Wales, said : “There is a general belief, though, on all sides that the public has a right to know about firms which genuinely pose a threat to them, either because they have done something awful or have accumulated a large number of complaints, and that these firms should be named; good lawyers can only benefit from the bad ones being known.

“The real problem here is that, in the area of complaints, the usual binary judgements which the law encourages do not apply. Lawyers want us to arrive at a guilty or innocent verdict, to uphold or dismiss complaints. That is difficult. In many cases, even where the complaint is founded on a real error on the part of the firm, the problem is not as great as the complainant thinks it is or the impact as profound.”

“Conversely, even when the complaint does not seem to be rooted in any obvious piece of poor service, it is rarely the case when people complain to us that there is absolutely no ­reason for them to be upset. There is usually something which one can spot as a root cause: even if the service provided was exemplary, as it in many cases is, you can usually see points where the lawyer could have done more to manage the client’s expectations or deal more sensitively with their initial complaint.”

“… sorting lawyers into two categories - those to be named and those to be given the cloak of anonymity - is not easy. The debate goes beyond the legal sector. We are also conscious of the pressure elsewhere from the government, and the pressure on the Financial Ombudsman Service in respect of banks and financial advisers, for example, to move rapidly towards complete openness. We are very conscious, though, of the particular nature of the legal ­market and the issues facing so many more traditional firms.”

“But we are not standing still. The consultations may not have fully resolved the naming issue, but they did enable us to agree and start publishing other details of our work. We have begun to publish data about the sorts of complaints we receive...”

“And, more recently, from the beginning of July we began to publish anonymised summaries of all ombudsman decisions we have made. These decisions are on our website for anyone who wants to see them and we hope, in time, to make them searchable, so that you can begin to build a picture of the patterns of decision-making and the sorts of remedies we order in particular sorts of cases. It is all there. Just not the names.”

Case decisions by the Legal Ombudsman can be viewed online here : Ombudsman decisions and cases on which the Legal Ombudsman has helped resolve informally can be viewed here : On the Case with the Legal Ombudsman. It should be noted these cases apply to England & Wales only.

No such information as is currently published by the LeO is available to Scottish consumers of legal services due to the Scottish Legal Complaints Commission’s refusal to publish decisions or case related information due to the legal profession’s insistence on complete confidentiality in Scotland.

While the Legal Ombudsman moves ahead on the question of publication of complaints, no equivalent consultation on naming & shaming Scottish solicitors has been held by the Scottish Legal Complaints Commission, who have already refused to comment on the issue or get involved in any moves to name & shame crooked lawyers in Scotland.

Asked for views on the LeO’s plans to publish complaints details & name poorly performing solicitors, consumer group Which? stated in their response (pdf) : “As outlined in our December 2010 ‘Publishing our Decisions’ consultation response, Which? believes the Legal Ombudsman (LeO) should seek to be wholly transparent.This means it should publish as much information as possible and this should include, in some circumstances, publication of the name of legal firms and individual lawyers. We agree with LeO’s conclusion that the concerns expressed about publishing complaints data are overstated. We believe that a more comprehensive publication policy could be implemented earlier than at some point in 2012 and suggest April 2012 as a clear target date for implementation of LeO’s publication policy.”

Factors which are relevant to publication also include:

a) the nature of the work undertaken;
b) whether the complaint was resolved informally after reference to LeO;
c) the number of active clients the firm has to give a ratio of complaints to number of clients; and
d) the firms where LeO investigates the complaint and a finding is made for the firm or the complaint is dismissed and the firm exonerated.
e) the size of the firm in terms of number of partners and turnover.

In addition, the search functionality for the published data should be easy to use and results presented in such a way as to ensure that there is no risk of the data being misinterpreted.  The search functionality should be intuitive and the search options should be expressed in plain English.  It should also be free to access.

On 13th April 2011, the Cabinet Office and Department of Business, Innovation and Skills published a paper titled ‘Better Choices: Better Deals.  Consumers Powering Growth’.  Among other recommendations, it concluded that there should be an ‘expectation that regulators, government departments, regulated businesses and public service providers will release the complaints and performance data they own unless they have good reason not to do so’.

This expectation means that LeO will have to adopt a policy of identifying individual law firms in the circumstances set out in their publication policy.  Which? agrees with and endorses this approach as the default position.

The Office of Fair Trading (OFT) stated in its submission (pdf) to the LeO : “We appreciate that you need to balance the interests of consumers with the reputational impact on firms and individual lawyers. However, the OFT remains firmly of the view that  the publication of named complaints data could incentivise legal service providers, due to reputational considerations, to maintain and/or improve the quality of service they provide to consumers.We believe that essential data would include:

* The number of complaints made against individual firms and lawyers;
* The nature of those complaints and placing them into categories to help see if a pattern develops;
* The ratio of complaints upheld against an individual firm or lawyer;
* Areas of law where complaints tend to focus;
* Which aspects of service the complaints tend to focus; and
* Whether the complaints tend to come from private or publically funded cases.

Dr Dianne Hayter, Chairman of the Legal Services Consumer Panel, an organisation which represents the best interests of legal services users in England & Wales, and notably has NO EQUIVALENT in Scotland, stated in the Legal Services Consumer panel response (pdf) to the LeO on naming & shaming : “The Consumer Panel is of the firm view that all consumers have a right to know whether the provider with whom they are thinking of engaging to help them resolve their important legal matter has a poor complaints track record. The Legal Ombudsman will have a heavy conscience if consumers suffer serious detriment which could have been avoided.”

Dr Hayter continued : “The risk that a high number of complaints in social welfare law would harm firms‟ ability to attract more work in other areas, such as conveyancing, could be easily managed by effective presentation of the data. The research suggests that consumers would use complaints data to help them make choices between competing providers. In order to facilitate this, the Legal Ombudsman should organise data by legal activity. In this scenario, consumers would be able to compare complaint volumes for one field of law across the different providers they are considering. The Financial Ombudsman Services enables such comparisons and we see no reason why the Legal Ombudsman cannot do so.”

Law Society of England & Wales disagree on naming & shaming rogue solicitors. Expectedly, the Law Society of England & Wales protested against the effort to publish the names of rogue solicitors & crooked law firms, stating in its submission : “We do not believe that publishing firms’ complaints records  will improve complaints handling or provide clients with useful information which will allow them to make an informed choice about which legal service provider to use.”

However, the Law Society of England & Wales did respond to earlier enquiries from Diary of Injustice, revealing the numbers of solicitors convicted of criminal offences in England & Wales, information which is not available in Scotland. This was featured on Diary of Injustice in May 2009, here : Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’

Wimped out : Kenny MacAskill’s Scottish Legal Complaints Commission has refused to hold consultations on moves to name & shame crooked Scottish lawyers. For now, Scots consumers of legal services are to be left in the dark over their choice of lawyer, as the Scottish Legal Complaints Commission and the Scottish Government do not support the naming & shaming of crooks within the Scottish legal profession. One SLCC insider said he felt the anti-client law complaints quango would never name or shame any rogue lawyers under what he called “its current profession friendly approach to dealing with consumer complaints”.

Clearly there is an imbalance in the rights of consumers of legal services in Scotland, where in England & Wales, all consumer groups and even the Westminster Government support naming & shaming rogue solicitors and their law firms. Why is Scotland being left out once again on consumer protection against our historically poor, crooked, yet expensive legal services market ?

All submissions to the Legal Ombudsman for England & Wales consultation on “Publishing our decisions: an evidence based approach feedback” can be viewed at the following links :

Association Women Solicitors response
Bar Standards Board response
Chartered Institute of Patent Attorneys and the Institute of Trade Marks Attorneys response
City of Westminster & Holborn Law Society response
Costs Lawyer Standards Board response
Dean Conrad response
Forum of Insurance Lawyers response
General Council of the Bar response
Institute of Legal Executives response
Irwin Mitchell Solicitors response
ILEX Professional Standards Limited response
The Law Society response
Legal Services Commission response
Legal Services Conumer panel response
Manchester Law Society email response
Media Lawyers Association response
National Consumer Federation response
NewLaw Solicitors email response
Office of Fair Trading response
Which response