Publish and be damned?

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1 April 2011


Posted by Neil Rose, Editor, Legal Futures

A small number of the complaints received by the FSA today

Some things don’t change, whatever the regulatory regime, and making decisions quickly is one of them.

Though the Legal Services Board has improved aspects of the processes it inherited – it is far quicker to approve rule changes that the frontline regulators want to make, for example – when it comes to some of the big decisions, time does not appear to be of the essence. The future of referral fees and the scope of reserved legal activities are two slowly grinding their way towards a decision, while yesterday the Legal Ombudsman (LeO) put off its conclusion on whether to name law firms subject to complaints for another year.

There are, of course, often good reasons for the pace of all this work, not least the need to garner evidence and research to underpin the decision-making process. I’m sure most people would as one say that it is more important that decisions of this magnitude are right rather than speedy. The comment left by Sarah Mumford on yesterday’s story sums this up neatly. One cannot help but wonder, however, whether LeO could have started this process six months ago.

It is clear that the board of LeO has reached the same preliminary conclusion that its predecessor Legal Complaints Service (LCS) did when it looked into the question of “naming and shaming” – that it is a bloody difficult decision. The LCS eventually realised it just wasn’t worth the hassle given that it was soon to go out of existence, and left it on LeO’s doorstep, ticking loudly.

Lawyers think it’s a bad idea and consumers think it good and the Legal Services Consumer Panel did not hold back in its criticism of the delay, believing that LeO has fallen for the profession’s propaganda. LeO is always very keen to make clear to lawyers that it is there as much to help and protect them from unjustified complaints as it is to bash them over the head for their service shortcomings – it has to be careful not to be seen as playing to the legal gallery here. I’m not saying it is (and frankly I’d be surprised if it is, given the robust nature of the personalities at the top of LeO) but it would not want the accusation levelled in the first place.

Instinctively I’m in favour of greater transparency over complaints but this week’s release of complaints figures by the Financial Services Authority gave me considerable pause for thought. It received 1.8m complaints about the 25,000 or so businesses it regulated in the second six months of 2010, having taken in 1.7m complaints in the first half of the year. Barclays alone accounted for 276,315 complaints in the second half. When you’re talking about complaints on this scale, it is hard to argue against naming, which the FSA indeed does.

By contrast, LeO – which oversees something like 12,000 businesses and 150,000 so-called authorised persons – expects to receive between 12,000 and 15,000 complaints in its first year. That’s about as many as the FSA receives in a day. It will be amazing if one law firm receives 276 complaints, let alone a thousand times that number.

LeO has talked about naming firms once they’ve had three complaints upheld against them, but put alongside the FSA figures, that looks woefully inadequate and meaningless.

Farewell SCB/OSS/CCS/LCS

On a separate but related note, it is only right that someone marks the passing of the LCS, which officially shut for good yesterday, having closed its very last file in the afternoon. The one-time Solicitors Complaints Bureau/Office for the Supervision of Solicitors/Consumer Complaints Service has a lot to answer for, for those who recall a variety of unsavoury scandals in the past, and more significantly for bringing the Legal Services Act down on the profession – the poor handling of complaints in the late 90s being one of the main drivers for the Act.

But eventually the Law Society got a grip, appointed to run the LCS a focused board, led by Professor Shamit Saggar, and a skilled chief executive in Deborah Evans, and matters improved significantly in recent years. It passed on the handling of complaints to LeO in really pretty good order. The days of the profession handling its own complaints may have rightly passed, but Professor Saggar, Ms Evans and those staff members who saw it through to the bitter end could leave the Law Society yesterday with their heads held high.

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