Notification of the Right to Complain
Since qualifying as a barrister I have had a sense that the regulatory framework under which barristers work was in a broad sense rational. Like most barristers I occasionally had to refer to the Code of Conduct, especially in the early years. However, the regulatory framework was consistent, coherent and comprehensible. Once you had grasped its central features, of professionalism, of duty to the lay and professional client and to the court, you felt you understood it.
A recent development has eroded my trust in the rationality of the Code as a result of other organisations that can now dictate its content, namely the requirement to inform all lay clients in writing at the point of engagement of their right to complain about the barrister at his or her chambers and to the Legal Ombudsman. That development is unnecessary, disproportionate and inconsistent with the ethos of professionalism.
There is little point in informing a lay client of their right to complain when (a) they don’t know who I am, (b) they are never likely to meet me, (c) their understanding of what I do is imperfect to say the least and (d) they have no objective means to assess my work.
For example, as a personal injury practitioner I regularly advise in writing on quantum or on liability. In the majority of cases the claim will not be litigated. Or I may represent a client at a case management hearing where, again, the client does not know who I am nor has any way to assess the quality of my work. On what basis could a client complain in these situations? And, if there is no basis, it is pointless to send a letter out.
Of course, there may be cases where a complaint is appropriate even though a client is not met. However, the issue is one of proportionality. Other professionals, dentists, doctors, accountants, pilots, nurses, architects or engineers would presumably also not object to complaints yet they don’t hand out leaflets to everyone for whom they undertake work no matter how small.
Professionalism and the Service Culture
The illogicality of this requirement is brought into greater focus by considering the ethos of professionalism on the one hand and the service culture on the other. Barristers work within a system of justice. A barrister is not the mouthpiece of the client. There is a process involved in conducting any hearing. A service is being provided yet at the heart of that process lies a series of relationships, with the lay client, with the professional client, with the opponent and with the judge.
The dynamic between barrister and lay client is complex and context-dependent. For example, the relationship between a barrister and a defendant in a magistrates’ court is very different to that between a tax barrister and a company. In many criminal or family law contexts handing over a sheet informing the client of their right to complain is inappropriate and baffling to the lay client.
The Code of Conduct implicitly recognises the complexity of the barrister’s role and is non-prescriptive as to the relationship the barrister forges with the client. The Code provides a set of ethical and practical rules it must follow. It is a far more apposite system for the regulation of conduct than the imposition of a service ethos which is dogmatic as to the nature of the relationship ignoring the complexity and context of the work.
Legal Standards Board Misunderstandings
In a letter dated 24th February 2011 to the Bar Standards Board, David Edmonds Chairman of the Legal Standards Board, writes “the requirements currently in force are not substantially different from what was required of barristers previously”. He goes on to state that the example of a recent “flyer” would encourage an open response to clients’ needs “whenever they first meet them”. Handing over a customer client leaflet at first meeting does represent a substantial difference to what was previously required since it imposes a customer service-orientated paradigm on the relationship from the outset whatever the context.
In addition, Mr Edmonds misunderstands the contents of the Code of Conduct with respect to complaints and of many barristers’ work. The requirement is not limited to clients who barristers meet; clients must be notified of their right to complain “at the time of engagement”. I probably meet less than 5% of the lay clients who I undertake work for. It would make better sense if the requirement did only apply to when a client is met. It is astonishing that the Chairman of the Legal Standards Board appears not to know that in certain areas and for certain types of work barristers do not generally meet the lay client.
As far as I am aware, no evidential basis has been given for the introduction of this provision. It would be interesting to subject the Legal Standards Board to the same service ethos, ie to view, by analogy, the Legal Standards Board as a service to barristers. That would expose the following failings, presumably unforgiveable if a barrister committed them, failure to provide any evidence for the scope of the requirement, failure to consult, failure to listen to constructive criticism, failure to understand the context of the work being provided, failure to appreciate the practical difficulty and expense of compliance, failure to demonstrate flexibility and openness to reasoned objections. Presumably, the requirement is perceived to be self-proving and any objection is evidence of die-hard attitudes to change. Failure properly to adduce evidence of a required change or properly to engage or reason with those who must comply with that change is ideological.
It is not objectionable that a barrister can be complained about for breach of the Code or practising in a sub-standard fashion; the issue is one of proportionality and consistency with the ethos of professionalism. For a breach of the Code there is a mechanism in place for complaints and if the quality of work is below the required standard the remedy is a professional negligence claim. Merely providing a leaflet that explains neither of these avenues of recourse and which particularly omits guidance as to “when a complaint is a complaint” and merely informs the lay client of the right to “complain” is absurd.
Administrative Cost
Barristers chambers do not keep lay clients’ addresses. The Solicitors Regulation Authority has confirmed that solicitors are under no obligation to assist barristers in contacting clients directly. Briefs must therefore be sifted through to locate the client’s address which although not impossible, nor wholly impractical, has significant administrative repercussions. This requirement is misguided and should be amended or removed.
Justin Valentine,
Atlantic Chambers, Liverpool.