G151 English Legal System

Transcription

1 LEGAL PROFESSION BARRISTERS & SOLICITORS: COMPLAINTS AND REFORM By the end of this unit you should be able to describe [AO1]: How a client can complain about their solicitor and barrister When a client may take action through the court as a result of the representation The impact of the changes under the Legal Services Act 2007 You will also be able to evaluate [AO2]: The effectiveness of the current provisions on complaints The proposed reforms to the legal system, including complaints, under the Legal Services Act 2007

2 SOLICITORS: COMPLAINTS Grounds for client s complaint? Either they are dissatisfied with: o o the service given or the amount they have received/asked to pay. Contractual? When you instruct a solicitor, you enter into a with them. It means that if you do not pay, the solicitor has the right to sue for the fees. breach of contract! But it also means that the client may have a right to sue the solicitor for Griffiths v Dawson (1993) White v Jones (1995) even if you are not directly represented by the solicitor Action for Negligence Clients can also, now, sue for negligence. To prove: they need to show that the solicitor fell below the standards of a reasonable solicitor, and the courts are able to award compensation if the claim succeeds. Hall v Simon (2000) HL decided that immunity from liability was no longer acceptable, and that both barristers and solicitors should be liable for advocacy and written opinions.

3 BUT I DON T WANT TO GO TO COURT... I WANT TO COMPLAIN! Stage One: Speak to the solicitor. Why might this not be good enough? Stage Two: Legal Complaints Service What can they do? Has the solicitor breached the code of conduct? Stage Three:. Legal Services Complaints Commissioner & Legal Services Ombudsman

4 BARRISTER COMPLAINTS Stage One: Barrister/ Head of Chambers/ Employer Stage Two: Bar Standards Board, Professional Misconduct Code of Practice May refer it to the Council of the Inns Of Court, Disciplinary tribunal Complaints Committee OUTCOME? Suspend or disbar Order repaying of fee Apologise, Repay fees, Compensate client Want to know what they decide? Take a look at their judgements on Stage Three: Legal Services Ombudsman Bar Council

5 BUT I WANNA GO TO COURT!!! FIRSTLY: Can a barrister be sued for breach of contract? Why/ Why not SECONDLY: Can barristers be liable for other negligent actions? Hall v Simons 2000 Liability for negligent work outside court? Saif Ali v Sydney Mitchell & Co. (1980) Liability for negligence in advocacy?

6 STRETCH & CHALLENGE A-B You should also note that the complaints procedure has now completely been changed by the Legal Services Act 2007, and the changes come into effects of the 1 ST January 2011 For AS Law 2011 You will need the process that we have just looked at. However, it is worth being aware of the changes, especially if you are aiming for top marks, as you can refer to it especially in the evaluative (b) questions. AREA Legal Services Ombudsman/Legal Services Commissioner Gone! As of 31 st December 2010 CHANGE Bar Standards Board/ Solicitors Regulation Authority Retain powers to discipline in relation to professional misconduct issues. May be referred to them by LO. Lose powers to deal with other complaints. Will deal with complaints from before 6 th October Legal Ombudsman Into effect from 1 st January 2011 (but started work a little earlier...). Completely independent Deals with complaints about any legal professionals in relation to the exercise of their duties. Free service Strict time limits (6 months from lawyer s response or 12 months from the act or omission or discovery of the act or omission) Can compensate up to 30,000 Replaces BSB, SRA, LSO and LSC Legal Services Board Into effect from May 2010 Oversees the regulation of the professions Set up the Legal Ombudsman Cannot directly apply to them A Fresh Start for Resolving Legal Complaints Today, Wednesday 6 October, the Legal Ombudsman will open for business to help people resolve complaints about lawyers. This is the first time people can come to an independent and impartial body to help them resolve a legal complaint. The service covers all lawyers, including solicitors, barristers and others (see notes to editors for a full list). The Ombudsman has official powers to put things right if the service a consumer received from their lawyer was not satisfactory. The new Legal Ombudsman will also enhance the reputation of the profession and aims to simplify the current consumer complaints system. Consumers can have greater confidence in using legal services because they know they can access an independent body that has specific powers to help. The service is free of charge to consumers. Chief Ombudsman, Adam Sampson said: We know that most of the time, lawyers provide a good service. But sometimes things can go wrong. When they do, people must have access to someone they can have confidence in to put things right. That is our job to resolve complaints quickly and fairly. We have worked hard to make sure we bring a fresh approach to legal complaints with a focus on justice. We also want to work closely with lawyers and their regulators to raise standards. We want to help prevent complaints and make the legal and justice systems work better. Jonathan Djanogly MP, Minister responsible for Legal Services commented: The new Legal Ombudsman will make a real difference for people who want to make a complaint about their lawyer. The consumer will have a single point of contact, instead of the current confusing situation, and the process will be a smoother one for the legal profession. As a lawyer myself I fully understand the vital part this will play in the regulatory system that helps maintain the high standing that our lawyers have around the world. Peter Vicary-Smith, CEO Which? said: The arrival of the Legal Ombudsman is a welcome step forward for consumers who use legal services. It is hugely important for consumers to have the opportunity to contact an independent 'referee' who looks at both sides of the argument, makes enquiries, asks questions and comes up with a remedy or solution that they believe is fair.

7 FURTHER REFORM OF THE LEGAL PROFESSION & LEGAL SERVICES ACT 2007 This piece of legislation is starting to come into power now, and may revolutionise the legal system over the next few years... so keep an eye out! Anyway, first things first: You need to know a couple of things about the back ground to it, as it comes out of a report called the Clementi Review Task: Read the enclosed articles from the Law Review & Times and answer the following questions: What were the problems with the old system? What were the aims of the review? Which model was recommended? Why did the Bar Council and the Law Society have to separate their regulatory and representative functions? What concerns have been expressed? PROPOSAL Legal Services Board to supervise the regulation of lawyers by SRA & BRB New independent ombudsman heading the Office for Legal Complaints. Legal Disciplinary Practices (LDP) & Alternative Business Structures [ Tesco Law ] (ABS) 2010 (in effect!) ROLL OUT DATE Autumn 2010 (in effect!) 2011/ 2012 (ABS can now be set up... but few have applied!) His main recommendations were: 1. there should be a new complaints body which is independent of the professions (Hence the implementation of the OLC) 2. there should be a Legal Services Board (LSB) that regulates all the legal professional bodies (therefore the Bar Council and the Bar Standards Board will be regulated by the Legal Services Board) 3. Legal Disciplinary Practices (LDP s) should be permitted where there are barristers, solicitors and nonlawyers working together in the same practice 4. non-lawyers would be allowed to own and manage LDP s, but there would be safeguards to make sure that they were fit to own such a practice.

8 REVISION QUESTIONS BARRISTERS. 1. How many barristers practice in England and Wales? 2. What qualifications do you need to train as a barrister? 3. Name the four Inns of Court. 4. What is the name for the vocational training used by barristers? 5. After the vocational training, what barristers who intend to practice do? 6. Are barristers in paid employment or self-employed once qualified? 7. What can a barrister apply to become after 10 years of practice? 8. Who controls barristers? 9. How are barristers paid? 10. What did Saif Ali v Sidney Mitchell & Co (1977) determine? 11. What did Hall v Simons (2000) establish? 12. Can barristers be instructed by anyone other than a solicitor? 13. Can a barrister sue for their fee? SOLICITORS. 1. What qualifications do you need to qualify as a solicitor? 2. Can you name three types of work undertaken by solicitors? 3. What is the name of the organisations which control and govern solicitors? 4. Who investigates complaints against solicitors? 5. Can solicitors be liable for negligent advice and/or advocacy? 6. Can a solicitor appear in both the Magistrates Court and the County Court? 7. What do solicitors need to have rights of audience in higher courts? 8. What changes does the Access to Justice Act 1999 seek to change with regards to rights of audience? PAST QUESTIONS: January 2009 (a) Describe both the training of barristers and how complaints about barristers are made and dealt with. [18] (b) Discuss the advantages and disadvantages of the current system of training barristers. [9] June 2008 (a) Describe the ways in which a client can make a complaint about their solicitor or barrister or otherwise claim compensation. [18] (b) Discuss whether the current system for clients to make such complaints is satisfactory. [9] January 2008 (a) Describe the training of both barristers and solicitors. [18] (b) Discuss the problems associated with training for both barristers and solicitors. [9] June 2007 (a) Describe the training of barristers and solicitors. [18] (b) Discuss the disadvantages of the current system of training barristers and solicitors. [9]

9 From The Times May 12, 2009 Lawyers baked-bean protest over government plans for Tesco Law Frances Gibb, Legal Editor The first signs of a fight-back against reforms that will enable supermarkets and other stores to offer customers legal services came yesterday with a baked beans protest by solicitors. The lawyers handed out free cans of beans from shopping trolleys outside the High Court, warning that Government plans for the Big Bang in legal services was a recipe for disaster. The reforms, under the Legal Services Act 2007, have become known as Tesco law. They will enable big companies such as supermarkets or motoring organisations to own law firms or employ lawyers and offer legal services directly to their customers. Yesterday s protesters, who waved placards saying No to Tesco law, staged the demonstration with cans of beans bearing the message: Legal services by supermarkets is as ridiculous as lawyers selling beans. The lawyers have united under the brand name QualitySolicitors.Comwhich has attracted 100 law firm members and which they plan to market to rival moves by chain stores or any other newcomers to the legal market. Clare Magill, head of commercial law at Wolferstans, Plymouth, said: My very real concern is that the public is at risk in the current marketplace. There is a plethora of non-lawyer websites which either claim to match consumers with the best lawyer for their needs, or which direct the consumer to a firm which has paid for the referrals, irrespective of whether or not the solicitor is the best for the client. Consumers will be at risk, using legal representatives hundreds of miles away, at best with little understanding of local issues and often with expertise in areas irrelevant to their needs, she added. In defence of the Government plans to allow non-legal bodies such as the Co-op or the RAC to offer legal services, Bridget Prentice, the Constitutional Affairs Minister, said: I don t see why consumers should not be able to get legal services as easily as they can buy a can of beans. But Craig Holt, a London barrister who opposes the changes, said: My very real concern is that the public are at grave risk here. People have a natural inclination to use services provided by names that are familiar to them, even if that may not provide the best source of help for them. Allowing the likes of Co-op, Tesco and the AA to provide legal services is a reciple for disaster and a move that demonstrates utter contempt for the consumer of legal services. Services by these brands will inevitably be provided by unqualified call-centre staff, probably outside the UK, overseen by an inadequate number of in-house solicitors. Tesco law will represent a disaster for consumers of legal services in the UK. This is combined with a Government that is intent on reducing legal aid to the point where almost no lawyer will be able to undertake legal aid work and people will be left having to represent themselves. Mr Holt said: It is widely predicted that as a result of these changes, over a third of all law firms will disappear. Some towns will simply have no solicitors in them.