The Law Society and consumer groups are to blame for the Legal Ombudsman (LeO) dropping its ‘two free complaints a year’ offer, the chief ombudsman has explained.
Meanwhile, a rule change allowing LeO to consider complaints from people who are not clients – for example victims of “aggressive marketing campaigns” by lawyers – will not be an extra burden on the profession, he pledged.
From 1 April, every case decided in favour of a complainant will attract a £400 fee.
Chief Legal Ombudsman Adam Sampson said last week that Chancery Lane and consumer groups had called for more of the cost of the complaints scheme to fall on the lawyers whose actions produce the complaints. It was not LeO’s idea, he insisted.
Mr Sampson challenged concerns raised by lawyers over changes to the scheme. He stressed that the Legal Services Act provided that lawyers are charged for “every complaint about them that we investigate”. But he acknowledged that, so far LeO has “only in practice charged that fee on the third case in any 12 month period”.
He continued: “Naturally, this has not gone down well with some lawyers.” But he pointed out that a fee was only charged if a lawyer was ordered to make a remedy or if LeO found the lawyer failed to handle the initial complaint properly. “In other words, if lawyers do what they should (i.e. the complaint is baseless) and they take all reasonable steps to resolve the complaint, then there is no charge. In practice, we are waiving some 40% of case fees.”
LeO acceded to the requests to impose fees on every case only reluctantly, Mr Sampson revealed. “Although we had our doubts about the measure, since both sides of the debate were in agreement, and after some careful analysis of the implications, we went along with their request.”
Another issue causing discontent was the rule change meaning LeO can now accept complaints from prospective customers as well as the recipients of legal services. “The notion that we can now look at complaints from people who have unreasonably been denied a legal service or who have persistently been offered a service they do not want has caused some consternation,” he revealed.
But he pointed out that LeO can already look at complaints from the beneficiaries of wills. Other ombudsman schemes have had similar powers for years and rarely use them. But it was important LeO could offer redress, for example, to “someone who has suffered a loss because a lawyer has unfairly discriminated against them or who has suffered because of misleading or bullying marketing tactics”.
He added: “Everyone accepts that lawyers who engage in this sort of practice (and thankfully there are very few of them) are guilty of regulatory infractions; why should they not be subject to a proper complaints mechanism too?
“We will put in place mechanisms for minimising the possible impact on lawyers of dealing with complaints from people who they have entirely reasonably turned away. We have taken an explicit power to refuse to investigate cases where there is no immediate evidence that there is any case to answer.
“For a case to get to investigation – and the lawyer to be put to the bother of answering it – the complainant has to produce evidence that the denial of service, for example, was unreasonable and that they suffered a loss as a result. If they cannot produce such evidence, we will turn the matter away.
“What this means is that there is no additional burden on the profession. As now, if a lawyer wants to turn away a client for any normal reason – pressure of work, cost, area of law, complexity of the case and so on – they are free to do so.
“But if they promise to help a client with an urgent case and then never get round to doing anything about it, if they discriminate on the basis of race or religion, if they lead people on or ape the aggressive marketing techniques of some of their claims management peers, we may be interested in taking the matter further.”