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.

Where There’s A Will There’s A Crook : OFT say choose your will writing service wisely, consider costs, avoid making a solicitor your executor

Surveys reveal consumers frequently make poor choices in will writers & executors. EVERY ONE of us should ensure our assets & financial affairs are put in order after we die, however the dangers of writing a will with an unscrupulous professional such as a crooked lawyer or an overcharging bank are well known to many families & relatives across Scotland who, after the death of their loved ones, have ended up being forced to deal with complicated complaints procedures put in place by biased self regulators such as the Law Society of Scotland or some rather dubious Ombudsman with little or no powers to put right the inevitable financial disaster for the beneficiaries, while the solicitor or bank pockets the remains of the will.

OFT say consumers should not be led to appoint a professional solicitor as an executor. Today, the will writing services of the banks has come under wider public scrutiny as the Office of Fair Trading (OFT) announced the big four banks, Barclays, HSBC, Lloyds Banking Group & Royal Bank of Scotland have all voluntarily agreed to review and, where necessary, improve the way they sell will-writing and executor services. The move follows discussions with the OFT during 2010 as part of a wider effort to improve the will-writing market for customers and their beneficiaries, following concerns that some (well, most) consumers are appointing professional executors without fully understanding the likely costs and the alternative options.

The OFT’s announcement states the big four banks have agreed to meet three key principles, to ensure customers are able to make well-informed decisions.

• Consumers making a will should not be led to believe that appointing a professional executor is essential or the norm.
  
• Consumers should not be encouraged to appoint a professional executor unless it is clearly in their best interests.
  
• Providers should be satisfied, before the will is drafted, that the consumer has the information necessary to make an informed choice. The consumer should understand the options around executor appointments and be aware of the likely basis of charging for the professional executor service.

The OFT reported all four banks are currently reviewing their product literature and processes and any necessary changes should be in place within six months at the latest. Barclays Bank, HSBC, Lloyds Banking Group and RBS Group are the only banks that currently offer will-writing and executor services, however consumers may not always be aware that each bank outsources the preparation of wills to external solicitors, although the bank provides the executor service itself.

While the OFT survey applies only to will writing services of banks, services which are used perhaps more so in England & Wales than in Scotland, many Scots consumers who are thinking of writing a will usually end up blindly walking into a solicitors office somewhere in the country, with absolutely no knowledge of what to expect from their solicitor or bank in terms of what kinds of services are offered, how much a will could cost to be implemented after death, and what action could be taken by beneficiaries if there is poor or negligent handling of a will by the executor, the bank, the solicitor or the will writer who drew up the will in the first place.

If the lack of information on costs of handling a will and how to put things right if its handled badly isn't confusing enough, the serious question of who to appoint as executor is often handled poorly by consumers, who, almost unbelievably in 2011, end up appointing the same solicitor who writes the will, which is almost like giving a blank cheque to a house burglar who will more often than not charge as much as they can for handling a will after death, to the point in some cases, there is no money left for anyone except themselves.

The OFT today reminded consumers there is no requirement in law to appoint a professional executor, although, according to a survey published by the OFT last year, some 43 per cent chose to appoint (usually through ignorance) the same professional will-writer or solicitor who wrote their will.

While the costs for preparing a will can be relatively modest, the costs for a professional executor to administer an estate can be high and vary considerably. For an average estate, consumers can pay between £3,000 and £9,000. Failing to shop around for executor services could be costing UK consumers around £40 million a year, according to OFT estimates.

David Stallibrass, Director in the OFT Services and Public Markets Group, said: “The wrong decision when appointing executors could mean a potentially expensive professional service is chosen, when a family member or friend may be quite capable of handling the task either alone or with professional support. We are pleased that each of the banks has agreed to review its selling practices and marketing literature to ensure customers are getting the information they need to make informed choices.”

When a will is prepared, thought will usually be given to who is legally responsible for administering the estate according to the provisions set out in the will. When appointed under a will, these persons are known as 'executors'. Lay executors - such as friends or family members - can be appointed instead of appointing a solicitor who can end up charging what they like for administering the provisions set out in the will.

The alternative is that consumers can employ a professional executor, who will administer the estate in return for a significant fee - often a sizeable percentage of the value of the estate or possibly even the entire estate if the actions of some solicitors are taken into account. Any consumer ignorant enough to appoint such a person who is covered by their profession’s self regulator may end up appointing the same person or firm who wrote the will such as a solicitor. Bad decision in nine out of ten cases.

Speaking from a personal perspective as a victim of the legal profession over a will rip off, if you do end up appointing a solicitor as your executor, you may well end up with an Andrew Penman, or a Norman Howitt which means you are basically giving all your money, property, possessions etc over to a lawyer so they can enjoy it. Bad decision.

Don't do it. Don't fall into the trap of trusting the person behind a desk in a lawyers office just because they sit in an office and give the appearance they can be trusted. The experience of many people each year in Scotland indicates when it comes to wills and solicitors, the phrase “Where there’s a will, there’s a crook“ has considerable weight.

Case after case has proved the Law Society & SLCC take no action against lawyers who rip off wills & bereaved families. Do you really want to put your remaining family, friends or loved ones through the nightmare of dealing with a crooked lawyer, crooked law firm, or even worse, having to go through the self protecting Law Society of Scotland or the anti-client Scottish Legal Complaints Commission ? Take my advice, avoid it all and make sure you never appoint someone such as a solicitor or an accountant as your executor, certainly not in Scotland, because there are absolutely no safeguards to poor, negligent or even the criminal handling of wills by Scottish solicitors.

Given the significant degree of negligence or even criminality in the handling of wills in Scotland, it is long past time for a review of will writing services offered by the legal profession, and wider public education of the real costs & hidden dangers of who you as consumers allow to write & implement your final wishes.

However, any such review of the disgraceful state of will services offered by the Scottish legal profession may well have to come from south of the border because most political parties in Scotland realise its just too much of a cash cow for their friends & donors in the legal profession, a cash cow for lawyers which is guarded to the death …

My previous coverage on the subject of wills, will writers, and the crooked lawyers who handle wills can be found here : Where there's a Will, there's always a crook, a crooked lawyer & a crooked self regulator

Scottish Government set to defy OFT over lawyers self regulation in legal services consultation as MacAskill demands Law Society powers 'be protected'

Much like demanding there should be no inquiry into the worldwide banking collapse, Scotland's Justice Secretary Kenny MacAskill is set to defy the Office of Fair Trading's views of removing all powers of self regulation currently enjoyed by the Law Society of Scotland, in favour of creating a new independent legal services regulator similar in nature to the system now operated in the rest of the UK, where the Law Society of England & Wales is now little more than a 'trade union' for its member solicitors.

In Scotland, the Law Society of Scotland, while certainly being a 'trade union' for its members, also remains the prime regulator for the legal profession, despite recent moves to shift complaints to the troubled, scandal hit Scottish Legal Complaints Commission, which cannot seem to perform its intended function of 'ultimate consumer protection' against some of Scotland's notorious crooked lawyers.

Revelations from the recently announced 'public consultation' into reforming Scotland's legal services market structure, entitled "Wider choice & better protection - a consultation on the regulation of legal services in Scotland" show that while the OFT have made known their view the Law Society of Scotland should be completely stripped of any regulatory functions whatsoever, the Scottish Government are set to defy the wishes of consumers, most consumer organisations, and the OFT itself, by virtually guaranteeing the continuation of the Law Society's dual role as regulator and promoter of solicitors interests.

OFT - remove the Law Society's regulatory powers : “The Office of Fair Trading (OFT), amongst others, has expressed concerns about the regulatory and representative roles of the Society. Its view is that, in the interests of consumer protection, there should be a clear separation of the regulatory function from the responsibilities for representing and promoting the interests of the profession. It is argued that, for a profession that places emphasis on the avoidance of conflicts of interest (of even the appearance of such), undertaking both roles creates such a conflict."

Quite rightly, the OFT has taken the view, after reviewing the considerable evidence of lawyers closing ranks to protect each other against client complaints & claims of poor service, the legal profession is unfit to regulate itself. Improvements in regulation south of the border in England & Wales have already taken place, separating the functions of the solicitors governing body from regulatory responsibilities, a move which many had campaigned for & hoped would be implemented also in Scotland.

Mr MacAskill, however has apparently ruled himself, albeit after a disturbingly intense, albeit private campaign by senior elements of the Scots legal establishment, that the Law Society's powers as regulator of the legal profession, along with it's responsibilities for representing and promoting the interests of the Scots legal profession should remain, allowing the solicitors notoriously crooked, closed shop governing body to prevent clients & consumers getting a fair hearing when it comes to complaints against 'crooked lawyers'.

Kenny MacAskill : We must protect Law Society : "It is the Government’s view that the Law Society should remain as the regulator of individual solicitors, and we are sympathetic to their aspirations to regulate ABS. However we believe that this will require a move towards a clearer separation of the regulatory function. In respect of this aspect of the work of the Society, we also believe that the argument for majority non-lawyer representation on any regulatory committee has considerable merit.”

Mr MacAskill has already made it clear, he feels he and the Scottish Government must protect solicitors from any changes which may affect their 'income' or powers to protect each other from complaints …

A source from within the Justice Department today condemned Kenny MacAskill's blank cheque to the Law Society, claiming "This consultation is nothing but a front for the Law Society who have badgered at ever turn for wording to be changed and fanciful claims to be inserted over their conduct on complaints which everyone knows to be dishonest"

I asked the legal insider whether they felt the consultation paper in its present form was impartial enough to actually do some good and produce some results which may benefit Scots consumers of legal services. They felt however, that intentions were otherwise :

"Parts of the consultation paper look like a Law Society scripture intended for a solicitors conference rather than a genuine attempt to inform the public and seek their views on regulation of solicitors and how they feel legal services in Scotland should be reformed"

"It is widely thought by some of my colleagues there is an organised attempt by the Law Society and other organisations in Scotland which represent solicitors to stage manage the whole consultation process and I & others would not be surprised if some of the returning submissions from the legal profession were the work solely of a few from the Law Society itself"

Another official from within the Scottish Government further lambasted Mr MacAskill's consultation exercise, condemning it little more than a talking shop, and stated, rather strongly ; "Mr MacAskill's condom for the Law Society would not work as Scots will & should demand the same level of protection the rest of the country has from these beasts of the legal system".

To further ascertain who else in the Scottish Government held the view the Law Society should be allowed to remain as regulator of solicitors, I asked a senior Government insider for their opinion. He replied “This is not actually the view of the entire Scottish Government as the wording in the consultation suggests, it is simply the view of Mr MacAskill, the Justice Secretary”.

So, who actually does think the Law Society should be allowed to remain as regulator of solicitors ? Only it seems, lawyers, or ex-lawyers turned politicians are willing to cling to those ideals …

Law Society ran consultation ? One further area attacked by officials who feel their efforts to reform the Scots legal services market are being hampered, are the various 'inserts' into the consultation paper demanded by the Law Society, suggesting all is well with current regulatory models operated by the profession's governing body, particularly those relating to the compensation schemes offered to ruined clients of crooked lawyers, who invariably never receive a penny while their solicitor usually seems to get off 'Scot free'.

Here follows one such example from Mr MacAskill’s public consultation, seemingly the work of the Law Society instead.

Consultation quote on Master Policy : "Currently, consumers enjoy a greater level of protection if the legal services they receive are delivered by a Scottish solicitor working within a traditional firm, as opposed to an unregulated legal services provider working outside the reserved areas. If alternative business structures are to become a reality in Scotland, it is important that the same level of consumer protection applies to alternative business structures as it does to traditional business models."

The above quote, looks like it comes straight from the Law Society of Scotland itself, and I have to say I do remember over the years, previous Law Society Chiefs such as Kenneth Pritchard, and Douglas Mill, using the same phrases to describe the Master Policy Professional Indemnity Insurance of Scots solicitors, which is widely recognised as being the most corrupt insurance arrangement in existence, with the sole aims to protect crooked lawyers from financial damages claims from ruined clients.

You can read an interesting story about the work of the Master Policy to protect crooked lawyers here : Law Society intervention in claims 'commonplace' as ex Chief admits Master Policy protects solicitors against clients

You can read some of my previous reports on the woes of the Master Policy here : The Master Policy - a policy of protection for crooked lawyers

You can download the Scottish Government’s legal services consultation (in Acrobat pdf format) here : Wider choice and better protection: A consultation paper on the regulation of legal services in Scotland

You can read my earlier report on the consultation here : Lawyers monopoly on legal services set to last until 2011 as MacAskill's 'dithering consultation' delays wider access to justice for Scots

If there is to be genuine change & reform of the Scots legal services market, so consumers can get the transparent, impartial regulation they deserve, while solicitors get the 'trade union' they deserve, there must be a change in attitude at the Scottish Government from protecting the professions, to embracing the public interest and putting people first, rather than bowing to the likes of the Law Society of Scotland, who are twisting the public interest, and the public debate away from genuine change, back to the protection of long held monopolies and closed shop regulation once again.