Piecing together complaints
These are turbulent times for barristers. Competition for work has been hugely increased by a combination of a rise in the number of barristers and the introduction of higher rights of audience for solicitor advocates. At the same time, the previous rises in legal aid spending have gone into reverse, putting pressure on the incomes of many in the profession. These two factors have had a knock-on effect on the business models of many sets of chambers, creating high levels of churn within the sector.
And the pace of change is, if anything, set to increase rather than slow. Just at a time when the private sector (– and therefore private financing of barristerial work) - is beginning to recover from the economic hits of the past two years, the Government has entered into a further process of legal aid reform, changing the status of the Legal Services Commission and signalled its intention of cutting hard back hard on the availability of legal aid. Structural changes such as the continuing process of reform in the Crown Prosecution Service, for example, will further impact on publicly funded work for barristers.
More significant, however, will be the working through of the changes embodied in the 2007 Legal Services Act. Some of the Act was simply the tidying up of what had previously been somewhat jumbled regulatory relationships, these being products more of historical accident than deliberative policy. But , the main thrust of the Act represents one of the most serious attempt at changing the landscape in which the Bar has been operating for much of the last millennium.
Naturally, the majority of barristerial attention has focussed on the change in regulation and the likely impact of the proposed Alternative Business Structures. The debate that these have started about the future role of the Bar Standards Board (– the BSB to be the regulator for all advocates, solicitor advocates as well as barrister advocates, or merely remain the regulator of the traditional Bar?), – and the very structures to which barristers are attached (– will we gradually see a diminution in the number of independent barristers and sets of chambers and an increase in the number of barristers directly employed by the new hybrid structures?), – is undoubtedly a compelling one. And, the changes these would foretell for barristers are fundamental ones indeed.
In this context, the challenge posed to the traditional way of barristerial life by the handing over of responsibility for dealing with complaints about service from the BSB to the new Legal Ombudsman seems small beer indeed. And, even though as Chief Ombudsman I have an interest in emphasising its importance, I share the view that the scale of the challenge posed by the large-scale of involvement of purely commercial investment in the provision of legal services would dwarf the likely impact of the rest of the measures contained in the Act.
However, the arrival of the Legal Ombudsman does signal a very real practical and symbolic change for the barristerial profession. These changes broadly fall into three areas.
First, barristers will have to be ready to adjust to dealing with a new complaints system and a new complaints philosophy. Heretofore (and it is perhaps symbolic of the cultural shift that the change signals that words such as heretofore are unlikely ever to be used again by the Ombudsman), the system for dealing with a complaints about barristers was a simple one: after an initial process (of whatever sort) at individual or chambers level, the complaint would go to the BSB who would undertake a lengthy, legalistic process which would, if deemed necessary, culminate in an oral hearing before a formal verdict was reached. Under the new rules, a clear distinction is made between complaints from clients and others who may be involved (judges, solicitors, barristerial peers and other non-client parties). The former will need to be answered first at chambers level, with a clear eight-week deadline for a response, before going being eligible to go to the Ombudsman. The latter will continue to be dealt with by the BSB.
The change of location is not the key challenge for the profession; it is the change of philosophy which may require some adjustment. Whereas the old system looked recognisably like due legal process, the new one draws not from the traditions of the English court system but from those of Ombudsman schemes. Out go the formal exchange of statements and the backstop of an oral hearing; out too go the formalities of laying of charges, binary “guilty or innocent” verdicts and the impositions of punishments for transgressors. Instead, the new system will be inquisitorial, rather than adversarial, with an emphasis on informality: evidence sought by telephone and email as much as via written statements; no routine use of oral hearings; and narrative decisions, with any subsequent imposition of remedy (and the Ombudsman has extensive powers, including being able to award full waiver of fees and up to £30,000 compensation) being aimed at compensation for loss incurred by a consumer rather than punishment for sin committed.
It is the process, rather than the function, which will be a challenge to barristerial sensibilities. The arrival of the new Ombudsman scheme is, in a very real sense, a cultural collision. This extends to the second of the challenges: the basis on which the Ombudsman will make his decisions. The previous system seeks to assess the barrister’s behaviour against the barristerial rulebook and the accepted boundaries of the profession. However, the Ombudsman is here to determine not whether the rules were followed but whether the service offered was adequatefair and reasonable. Here, the central concept is not the normal mores of barristerial behaviour but that of customer service; indeed, the Ombudsman usually deliberately eschews the word “client” when describing the individual to whom the service was provided, preferring “consumer” or even “customer”.
This change has resulted in barristers facing a two-pronged complaints process. Although the Ombudsman will take responsibility for dealing with customer complaints about service, the Bar Standards Board will continue to deal with issues to do with conduct- a key aspect of regulation. Since many complaints from barristers’ customers contain both elements of service and conduct, in practice such complaints will pass between the two organisations, with the Legal Ombudsman seeking first to decide what, if any, redress is due to the consumer and the BSB then determining whether any action for misconduct is necessary. While in practice the system should not be substantially more complex for barristers to negotiate - the Ombudsman’s investigation should serve to establish an agreed evidence base on which the BSB will then base its subsequent decision-making – this may take some time to bed in.
What is important here is the introduction of the concept of customer service as a basic standard against which barristerial actions are to be judged. I know from my own experience that the vast majority of barristers take their responsibility to their client as their central, driving motivation. However, there remain a small number of the profession who see customer service as something which is wholly the responsibility of the solicitor and therefore not a matter with which they need to concern themselves. It is this small group who may struggle to adjust to the new reality.
That said, there is no question that the prime focus of the new scheme will be in dealing with complaints about other legal professionals. The early indications since the scheme opened on 6 October are that complaints about solicitors will make up some 95% of the Ombudsman’s workload. Those numbers indicate that, in truth, it is solicitors whose practice is most likely to be the subject of complaints.
But the third area in which the new scheme significantly departs from the old is that, whereas before complaints against different legal professionals were dealt with separately by their own regulator, they will now all come to a single organisation and will, if necessary, be dealt with together. The notion is that customers believe that they are being served by a legal team; the responsibility to deliver customer service is shared between the members of that team. If it emerges during the course of an investigation into a complaint brought against a solicitor that the barrister also has questions to answer about the service he or she provided, then the Ombudsman has the power to conjoin a complaint against the barrister too. While the barrister will clearly also be given the opportunity to respond to the issue before the Ombudsman formally takes opens an investigation into their actions, the move to centralise complaints against lawyers in a single organisation clearly has significant implications for the profession.
These changes are significant but, given the scale of the change facing the profession, are relatively small beer. But the shift away from self regulation to an independent Ombudsman scheme is consistent with that wider pattern of change. For the past eight centuries, barristers have been used to running their own affairs according to their own sense of what was proper. The Ombudsman is just one piece of evidence to indicate that those days are now gone.
By Adam Sampson Chief Legal Ombudsman