In December 2004, Sir David Clementi concluded that the best way forward for consumer complaints against barristers was to establish a single complaints handling body which would enshrine “independence, simplicity, consistency and flexibility.” And be no more expensive. This recommendation comes to fruition on 6 October 2010, when the Legal Ombudsman (“LeO”) opens its doors.
Early in July I met with the man who will be running it as Chief Ombudsman and Chief Executive, Adam Sampson.
The approach of the LeO
“Setting something up from scratch is great fun”, he told me and he quickly dispels any sense that the LeO is a sword of Damocles hanging over every barrister who happens to lose a case. To start with, Sampson is very much the kind of person who prefers to pick up the telephone and talk to someone to see if matters can be sorted out. He happens to be married to a barrister so “I am acutely aware of what a lonely job it is. You don’t have a support network. If someone criticises your performance it can be a body blow.” He knows that losing a case does not necessarily mean that the client has received a bad service. “I don’t think we will find ourselves substituting our own judgment for how a case should have been handled by the professional. Clearly if someone has got things badly wrong and that is obvious to anybody, that is something we will find. However if a barrister has made a perfectly decent judgment call, properly thought through, properly informed, even if that judgment call turns out to have been wrong that does not necessarily mean in an ideal world that that is poor customer service and they should be criticised for that”. Getting the law wrong or missing a deadline because one isn’t paying attention are another matter.
Neither will the guns necessarily be pointing only at counsel in the case. The LeO can only accept a complaint from the lay client but it has the power to conjoin another party, that is, if the lay client complains about the barrister but in the course of investigation it is concluded that the solicitor should be brought in too, then he will be, and vice versa. It all depends on whose responsibility it was to provide customer care. This contrasts with the present system in which the Bar Standards Board (“BSB”) can accept a complaint from anyone against a barrister but cannot bring in the solicitor.
Complaints: the starting point
It is important to remember that complaints start not with the LeO but in chambers. This means that chambers should have already designed their websites to contain the relevant information for lay clients and that procedures should have been set up to deal with complaints. It is only if the consumer is not satisfied after about eight weeks of attempts by chambers that the LeO will take on the matter.
An informal approach
The initial emphasis will be on trying to resolve things informally – no formal statements or submissions which might only prolong and inflame the situation. However, it will be expected that the file in chambers has been properly kept with all the relevant information but no more than that. The first port of call is the investigator (there will be 150-200 of them; they are being recruited and trained this summer). “Most complaints constitute as much a relationship breakdown, a failure in the relationship between the lawyer and the client.” It may be a failure to manage expectations. The investigator may go back to the complainant or to the barrister. This is an inquisitorial process. In due course the investigator will write to both sides with a report on his findings and what he proposes to recommend to the ombudsman unless both parties agree to the findings. If either side do not agree, then it goes to one of the ombudsman who will make his own decision and is not obliged to follow the investigator’s conclusions. If the complainant accepts what the ombudsman decides, then it is binding on both sides and is itself enforceable in the courts. No separate legal process on that matter can take place. There is no appeal save for judicial review and the barrister is not entitled to reject the LeO’s decision.
“What we are looking for [in investigators] are analytical skills and an ability to interact with human beings.” The small group of assistant ombudsmen come from a variety of backgrounds – barrister, solicitor, Trading Standards – but none are currently employed as a lawyer and none have been in practice in the last five years. “We approach these things as lay individuals.”
The cost of the new system will be greater at first for the Bar but not for the profession as a whole. Sampson will not be exceeding the start up costs of £15.1 million although they were estimated three or four years ago, and the running costs should be £20 million pa, which is two-thirds of what it costs now for solicitors alone.
Making a distinction
As set out in the Legal Services Act 2007, the BSB will continue to handle complaints concerning professional conduct and discipline. This distinction between “customer service” complaints and professional conduct complaints is not unusual elsewhere – financial advisors, dentists and surveyors operate similarly. In terms of principles, Sampson sees it as appropriate that the professions “police the behaviour of their own members according to their own conduct rules”. Consumer complaints though are another matter: “No one is going to trust an independent complaints handling [scheme] which is owned and administered by the profession. I will not necessarily be making any more independent or consumer oriented decisions than are currently being made but the fact that they are being made by an entirely independent body means it is going to increase consumer confidence. Plainly I will be influenced by what is in the code of practice in common with most ombudsman schemes” – but he is not bound by it: “If there is a breach but it has produced no consumer detriment whatsoever, that is not my business. But on the other hand you could have observed every iota of the code of practice but still not produced good customer service.”
One of the LeO’s aims is to show the profession where common customer service failures tend to occur and how these can be reduced through improved practice. In due course he will report to the Bar of lessons learned through the handling of complaints. Already he has seen complaints about direct access which highlight the need to keep clients’ money separate and refundable when services have not been provided. If more legal services are provided by in-house lawyers, there will be challenges to the boundaries of regulation. Structural matters may come into issue, for example, did the poor service result from the barrister being assigned the case at the last minute? Or did funding arrangements make it impossible to provide a service for the customer (for example obtaining expert opinions), something he would have to discuss with the Legal Services Commission?
Career to date
Sampson at 50 has already done several careers’ worth of jobs. He read Greats, worked in the probation service and was Junior Dean at his old college, Brasenose, at Oxford. He went back into the probation service and was probation officer to Winston Silcott after he was convicted of murdering PC Blakelock. Silcott was “not having an entirely positive experience” in prison, something which led Adam to his next job, with the Prison Reform Trust. One of the Trust’s aims was to push for independent complaints handling. When this became a recommendation of the Woolf Report following the Strangeways riot, Sampson was offered the opportunity to be the first assistant Prisons Ombudsman which he did for three years before becoming Chief Executive of RAPt, the national charity which helps prisoners suffering from drug addiction. His move to be Chief Executive of Shelter in 2002 was not out of the blue – his “gap year” was spent working in a night shelter for homeless people.
The challenges ahead?
“Most of all, barristers need to know we exist” and to inform their clients of this. As for the LeO, “the challenge above everything else is to do our work properly”, quickly and cheaply. “None of the advantages which should accrue to the scheme will accrue otherwise”. Keeping costs down is something he already knows very well: as a Londoner, he commutes to the LeO offices in Birmingham. He pays his own rail fare.
David Wurtzel is Counsel’s Consultant Editor