Naming & Shaming powers 'reserved' : Consumers still in the dark on crooked lawyers as identities of rogue solicitors & law firms yet to be published by Legal Ombudsman

Much promised Naming & shaming of rogue lawyers yet to happen in England & Wales MORE THAN TWO YEARS after much debate and numerous consultations which received widespread support from consumer groups and the Office of Fair Trading (OFT) for the Legal Ombudsman (LeO) of England & Wales to name & shame rogue solicitors & law firms in published complaints data, the policy decision taken by the LeO in April 2012 to publish the identities of lawyers involved in client complaints, has not yet resulted in publication of a single solicitor or law firm’s identity.

Shedding some light on the lack of publication of lawyer’s names to-date, the latest annual report covering 2012-1013 from the Legal Ombudsman states “In one of the key decisions taken during the year related to the publication of the statistics about ombudsman decisions. While there was general agreement that it was desirable for us to publish as much information about the nature of our decisions as possible, lawyers’ representatives were strongly opposed to naming the lawyers involved. Consumer groups on the other hand argued for as much information as possible about lawyers involved in our cases to be placed in the public domain.”

“In the event, following a lengthy consultation process, our board decided that statistical data about all ombudsman decisions should be published, including the area of law, the nature of the complaint, the outcome of the complaint and the name of the lawyer or firm involved. We began publishing this data from autumn 2012. The initial media interest which this engendered has rapidly subsided and as the information builds, we may soon be able to begin discerning some patterns over time.”

“As well as the routine publication of data, the board decided to reserve to itself the power in individual cases to publish the full decision, including the name of the lawyer (but redacting the name of the complainant) where it considers that it is in the public interest to do so. No such publication took place during the year covered by this report.”

However, many consumers and some consumer protection groups had expected the LeO to begin publishing the identities of rogue solicitors and their law firms last year.

Speaking to Diary of Injustice nearly a year ago last July 2012 Chief Ombudsman, Adam Sampson said at the time : “Our Board wanted to ensure that we’re certain about the accuracy of the data we report in the first data set of published Ombudsman decisions and that the lawyers and law firms who’ll be named have an opportunity to point out any discrepancies prior to publication.

“As a result, and on this occasion only, we have this week contacted each of the 750+ lawyers and law firms that have been the subject of our decisions during the first quarter to tell them what we’ll publish. We will then deal with any feedback, where required, in the weeks that follow before publishing the data. The level of feedback and subsequent work needed following this process will determine how soon we can publish the first set of data.”

The Legal Ombudsman had originally announced in November 2011 they would be going ahead with ‘naming & shaming’ in early 2012, reported by Diary of Injustice here : Scots to be ‘kept in dark’ on details of crooked lawyers while Legal Ombudsman’s ‘naming & shaming’ policy ‘will protect’ consumers in England & Wales

Diary of Injustice reported on the Legal Ombudsman’s consultation on naming & shaming here : Legal Ombudsman moving to name & shame crooked lawyers in England & Wales, crooked Scottish solicitors records to remain protected by secrecy for now

Consumer group Which? gave their backing to the Legal Ombudsman’s plans to identify crooked lawyers in England & Wales. A spokesperson for Which? told Diary of Injustice last year : “Which? strongly supports the principle of the LeO publishing complaints data under a strict and published policy , including in some circumstances the name of the law firm concerned. We set out our position in our response to the LeO consultation (page 51: opening up regulatory data)) pointing out that it is the expectation of Government that complaints handling bodies are as transparent as possible.”

Speaking on the LeO’s plans to publish complaints data & the identities of law firms who perform poorly for clients, Elisabeth Davies, Chair of the Legal Services Consumer Panel (LSCP), said at the time : “Research shows that UK consumers are now leaving well over 100 million comments online every year about their experience with businesses across the economy. Lawyers cannot escape this welcome emergence of consumer power, but instead should seek and then use such feedback to improve the service they offer.

She continued : “The courts will decide the fate of the Solicitors From Hell website. However, such websites fill a vacuum that exists because official complaints data about lawyers is not publically available to help consumers identify good quality lawyers. The Panel will continue to push the Legal Ombudsman to name those law firms who regularly provide poor service.”

The Office of Fair Trading (OFT) also supports the Legal Ombudsman’s naming & shaming policy. The OFT stated in its submission (pdf) to the LeO’s consultation : “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.

However, to-date, no solicitor has yet been named by the LeO, prompting fears in some quarters that protests from the legal profession and alleged murmurs of potential legal action by English lawyers if their names appear in complaints data, has put the brakes on total transparency.

Asked for comment today on lack of naming & shaming by the LeO, a spokesperson for the Legal Services Consumer Panel issued the following statement :

“Just to clarify that LeO publish two types of information: · Details of cases that involve a formal ombudsman decision · Individual cases where this is in the public interest test”

“In relation to the former, this information has been published for a while now. When LeO consulted on this, the Panel wanted all complaints involving a remedy (i.e. those that are mediated as well as ombudsman decisions) to be published. In addition, this information would benefit from having more prominence than it does currently.”

“In relation to the latter, as this is an emergency publication power, given the short period that it has been operational it’s difficult to know whether there have been circumstances when LeO hasn’t used these powers but should have. It would be better to assess this once the scheme has been operational for a longer period.”

For now, consumers are still in the dark over which solicitors & law firms fair better than others in complaints data. Exactly when the Legal Ombudsman does identify rogue lawyers and law firms remains to be decided.

Historically, the Scottish Legal Complaints Commission has refused to name any Scottish solicitors or law firms involved in complaints, citing reasons of confidentiality and the terms of the Legal Profession & Legal Aid (Scotland) Act 2007 for the prohibition of naming crooked lawyers in Scotland. It is not thought the SLCC in its current format will ever identify rogue lawyers.

Law Society’s database on solicitors “Too Toxic” to publish, public access to complaints info, horrific treatment of clients ‘may bankrupt’ law firms

Would consumers still trust lawyers if they were able to access full information on solicitors & law firms ? CALLS for the Law Society of England & Wales to share its database on solicitors with comparison websites have been resoundingly rejected by the legal profession, almost certainly on the basis of fears that clients & consumers will quickly desert law firms & solicitors across the country if consumers were to have access to the true scale of complaints against the legal profession. The claims made by campaigners & information access reformers come after it was reported last month Des Hudson, the £400K-A-YEAR Chief Executive of the Law Society of England & Wales swiftly rejected calls from the Legal Services Consumer Panel for regulators to opening up their professional registers so that the websites can provide basic information to consumers about the different services offered by law firms.

A report carried out by the Legal Services Consumer Panel looked at the barriers facing the emergence of comparison websites based on interviews with the industry. One practical barrier identified was a lack of access to professional registers held by approved regulators, meaning that comparison websites cannot obtain, in a usable form, even the basic information about lawyers, such as their contact details and areas of specialism. The report, which can be downloaded here : Legal Services Consumer Panel's report on comparison websites in legal services (pdf) recommended that approved regulators open up their professional registers for this and other purposes.

Elisabeth Davies, Chair of the Legal Services Consumer Panel, said: “Comparison websites are a welcome new feature in legal services as they could make it easier for consumers to choose lawyers and boost competition. But experience in other sectors has shown there are also risks – we are calling on website operators to demonstrate their commitment to consumer protection by signing up to some common sense good practice standards.”

She continued : “It’s staggering that so many lawyers are refusing leads generated through comparison websites. Consumers are unlikely to use these services again if they get turned away – it’s a massive own goal by the profession. There are a series of hurdles that comparison websites need to overcome before they are a major influence on consumer choice. Approved regulators could help break down these barriers by opening up their professional registers so that the websites can provide basic information to consumers about the different services offered by law firms.”

Predictably, the Law Society of England & Wales refused to share its own data on solicitors, its Chief Executive, Des Hudson who recently ended the right of clients to post their reviews & comments on experiences with solicitors on the well known website Solicitors From Hell, said the Law Society would not be sharing its data with the Legal Services Consumer Panel, or any other website not under the control of the legal profession.

One access to information campaigner from Brighton who has been involved in a long running campaign to free up solicitor’s complaints records in England & Wales told Diary of Injustice : “Clearly the Law Society of England & Wales do not want its own data on its solicitors, data which contains the appalling regulatory history of tens of thousands of solicitors & law firms across the country from falling into consumer hands, simply because if clients were to find out what their supposedly trustworthy solicitor has done to other clients, they will run a mile”

While the Law Society of England & Wales have refused to share data on their solicitors, consumers can still visit websites such as Solicitors from Hell 2 & Cowboy Solicitors from Hell to find out more about their solicitor, or perhaps post a review of their experiences at the hands of a lawyer.

Readers will of course be well aware the same problems exist in Scotland, where clients & consumers are not able to find out anything about their solicitors complaints records or how they have handled other legal work for clients. However, unlike in England & Wales, Scots consumers of legal services have no organisation such as the Legal Services Consumer Panel to call for a complete disclosure on all solicitors records to be made to the public.

The Law Society of Scotland’s own ‘too toxic to publish’ database on the Penmans, O’Donnells, Lockharts, McCabes, Danskins and more would probably shock so many Scottish clients, they too may do a runner from their lawyer’s office, and deservedly so.

Scots to be ‘kept in dark’ on details of crooked lawyers while Legal Ombudsman’s ‘naming & shaming’ policy ‘will protect’ consumers in England & Wales

Legal Ombudsman for England & Wales to name & shame crooked lawyers while Scots consumers left in the dark over Scots legal profession’s villains. NAMING & SHAMING CROOKED LAWYERS is to go ahead in England & Wales in 2012 after a decision stating It is right to publish the names of lawyers in specific circumstances was announced earlier this week by the Office for Legal Complaints which oversees the Legal Ombudsman (LeO). The widely welcomed move for consumers of legal services in England & Wales comes after several consultations held by the Legal Ombudsman over plans to identify law firms & lawyers who let down their clients, moves which were supported by consumer organisations such as Which?, the Legal Services Consumer Panel, the Office of Fair Trading (OFT), academics & UK Government Ministers.

Scotland’s legal regulator the Scottish Legal Complaints Commission has no plans to name & shame crooked lawyers. However, here in Scotland, there are currently NO PLANS by the Scottish Legal Complaints Commission (SLCC) to identify the serial crooked lawyers & law firms who do business in the Scottish legal system. The SLCC has previously claimed all complaints must be treated confidentially, however critics & consumer advocates feel the SLCC’s confidentiality policy exists simply to protect lawyers, ensuring that consumers are not able to find out just how crooked some lawyers & law firms in Scotland really are.

While Scots consumers are to be left in the dark over how crooked their lawyers really are, the Legal Ombudsman’s office has moved ahead on the matter, issuing a Press Release Naming Lawyers – Protecting Consumers (pdf), in which it stated : “It is right to publish the names of lawyers in specific circumstances. That’s the decision of the Office for Legal Complaints which oversees the Legal Ombudsman.The Ombudsman has dealt with some seventy-thousand calls about the legal profession in the last year. From 2012, information about complaints resolved by an Ombudsman decision will be available to the public.”

Firms and individual lawyers will be named where there is a pattern of complaints or when it is in the public interest to do so.  The move is in response to issues raised by lawyers, consumers, Ministers and others who took part in the year-long consultation on the subject.

Elizabeth France, Chair of the Office for Legal Complaints. Commenting on the decision to allow the Legal Ombudsman to name & shame failing lawyers & law firms, Elizabeth France Chair of the Office for Legal Complaints said : “We consider we have struck a balance between protecting consumers and encouraging an independent and strong legal profession. Every day we know most lawyers do a good job for their clients – but there are some who simply don’t. That’s why it’s in the profession’s interest to make sure all who provide services to consumers are doing so effectively.”

Every three months the Legal Ombudsman will also publish lawyers’ names and firms involved in all complaints that have been resolved by a formal Ombudsman decision. This means that examples of good practice as well as bad will be there for all to see.

Consumer Minister Ed Davey MP. Commenting on the move, Ed Davey MP, the Consumer Minister said : “I am pleased that the Legal Ombudsman has decided to publish this data. This will make the legal profession stronger, improve service standards and consumers will be better protected as a result. As the Government set out in our consumer empowerment strategy, Better Choices, Better Deals, we are keen to see more information such as this being made available by ombudsmen and regulators.This will enable consumers to be armed with the best possible information before purchasing goods or services.”

Legal Services Consumer Panel Chief hails naming & shaming as ‘great success’. The decision has also been welcomed by consumer groups including the Legal Services Consumer Panel. The Panel’s Chair, Elisabeth Davies said : “This is great news for consumers who tell us they feel in the dark when trying to find a good lawyer. Today’s announcement means there will no longer be a hiding place for the minority in the profession who provide a poor service and fail to put things right. People use legal services at critical moments in their lives and it is entirely appropriate that those who provide these services are held accountable if they get things wrong.”

Which? also supported the decision to identify poorly performing solicitors. Asked for comment on the decision to name & shame rogue solicitors, Which? executive director, Richard Lloyd, said : "The Legal Ombudsman has made the right decision to publish the names of lawyers who give poor service. People will finally be able to make an informed choice about which lawyer they use, and can avoid those lawyers that fail consumers."

The Law Society of Scotland are firmly against naming & shaming crooked lawyers in Scotland. In stark comparison to the moves in England & Wales to allow consumers to find out more about their lawyers and especially the ones who continually let down their clients, Diary of Injustice can confirm that Scots consumers are for now, to be left out of sharing the benefits of increased information about members of the Scottish legal profession who fall foul of complaints. With the Law Society of Scotland FIRMLY AGAINST any move to publicly identify the corrupt element of its members, the Scottish Legal Complaints Commission and Scottish Government have so far REFUSED to back moves which would see Scots given the same information to be made available in England & Wales which would enable clients to better decide which law firm or lawyer in Scotland is honest enough to handle their legal interests.

Jane Irvine, Chair of the Scottish Legal Complaints Commission who are reluctant to name & shame crooked lawyers. The Scottish Legal Complaints Commission has previously argued it cannot name & shame any crooked lawyers in Scotland because of the terms of the Legal Profession & Legal Aid (Scotland) Act 2007, which direct that all complaints matters and information arising from complaints are to be confidential. The 2007 Act also criminalises any leaks of information from the SLCC with harsh penalties for those within the organisation who whistle-blow on the SLCC’s numerous & now famous anti-client policies. The SLCC were asked for comment however none was provided at time of publication.

Justice Secretary Kenny MacAskill has been asked to allow naming & shaming of Scotland’s crooked lawyers. Today, the Scottish Government & Justice Secretary Kenny MacAskill have been invited to allow naming & shaming of rogue law firms & lawyers in Scotland with a request to amend any parts of the Legal Profession & Legal Aid (Scotland) Act 2007 and any other relevant legislation which the Scottish Legal Complaints Commission and Scotland’s legal profession at large have been using as an excuse to avoid the issue of naming & shaming the many serial crooked lawyers who crop up on a continual basis in complaint after complaint.

It is most certainly in the public interest Scots consumers of legal services have at the very lest the same rights & entitlements of their counterparts in England & Wales where such information as is to be published by the Legal Ombudsman in the rest of the UK should also be published relevant to all those solicitors & legal professionals operating in the Scottish legal services market.

Diary of Injustice has previously reported on naming & shaming crooked lawyers here :  Naming & shaming crooked lawyers - The story so far

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

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.