RESPONSE FROM THE GENERAL COUNCIL OF THE BAR TO THE CONSULTATION ON THE PUBLICATION OF LEGAL OMBUDSMAN DECISIONS 1. The Legal Ombudsman is consulting on two distinct topics: a) what information should it publish? b) should it identify lawyers when doing so? 2. Our answers to the particular questions posed are at the end of this Response. The statutory provision 3. Section 150 of the Legal Services Act 2007 provides: (1) The OLC may, if it considers it appropriate to do so in any particular case, publish a report of the investigation, consideration and determination of a complaint made under the ombudsman scheme. (2) A report under subsection (1) must not (unless the complainant consents) (a) mention the name of the complainant, or (b) include any particulars which, in the opinion of the OLC, are likely to identify the complainant. The present practice of the Bar Standards Board 4. The present practice of the BSB is set out in a paper entitled ʺPublication of disciplinary findingsʺ. A copy is being supplied as an annex to this Response. In summary: a) BSB does not publish any information about complaints of ʺinadequate professional serviceʺ, whether proved or dismissed b) BSB does not publish any information about charges of professional misconduct if they are dismissed. c) BSB does publish on its website summaries of the outcome of charges of professional 1
misconduct which are found proved. Such summaries include the name of the barrister and the charge (typically half a dozen to a dozen lines of text), but do not include the reasoned judgment of the Tribunal, Panel or Committee. d) BSB removes information on findings of professional misconduct from its website after 2 years unless there is a sentence of suspension or disbarment (in which case it remains indefinitely). 5. BSB is independent of the representative side of the Bar Council, and so the policy of BSB is not necessarily that which the Bar Council itself would favour. (A) What information should the Legal Ombudsman publish? 6. Complaints which appear to involve professional misconduct are being passed by the Legal Ombudsman to the BSB: by s. 113(2)(b) of the Act the Legal Ombudsman cannot take disciplinary action. 7. Therefore, in simple terms the cases handled by the Legal Ombudsman will be those which in the past have been within inadequate professional service, and so would not have been publicised at all by the BSB. 8. This might, therefore, be thought to suggest that the Bar would be against any publication at all by the Legal Ombudsman of cases involving barristers. That, however, is not the view we offer for two reasons: a) There is a general and growing preference for openness and transparency in respect of the discharge of the functions of public bodies. This consideration is amply reflected in the text of the Discussion Paper, and so is not developed further in this Response. b) The Legal Ombudsmanʹs determinations will in some cases involve significant financial orders against individual lawyers. It is in accordance with the rule of law that the basis of such decisions should be known. This consideration is not mentioned at all in the Discussion Paper, and so is developed here. 9. Under the Act the Legal Ombudsman has power to make financial orders of two kinds: a) Compensation, subject to a limit of 30,000. b) Repayment of fees, without any financial limit. 10. The 30,000 cap on compensation orders is enacted by s, 138, but can be altered under s.139. The limit can be raised to any sum which the Lord Chancellor may order. The only fetter on this very wide discretionary ʺHenry VIIIʺ clause is a scheme apparently 2
crafted so as to create a bias favouring increases in the limit. Recommendations for alteration may be made to the Lord Chancellor by three favoured bodies, and the Lord Chancellor must publish reasons if he does not follow such a recommendation. The favoured bodies include the LSBʹs Consumer Panel (which may be expected to tend to favour maximising compensation powers), but do not include any bodies representative of lawyers. 11. There is an observable tendency for the limit on a compensation power, once created, to be pushed upwards at a rate much faster than any general inflation. As examples one may refer to: a) The Financial Ombudsman Service. Under its initial scheme rules its monetary limit has been 100,000; but the Financial Services Authority has recently consulted on exercising its powers to raise the limit by 50% to 150,000. b) The Bar Council jurisdiction to award compensation for inadequate professional service. In 1997 such a power was created with a limit of 2,000. In 2000 this was raised to 5,000. In 2008 it was raised to 15,000. 12. Therefore, it is realistic to approach the question of publication by the Legal Ombudsman on the basis that in the future it may potentially have very substantial financial powers to order payments by barristers that is to say, financial powers on a significantly different scale from those which the BSB had in mind when it adopted its policy of no publication in respect of inadequate professional service decisions. 13. Unlike any previous powers, a payment order by the Legal Ombudsman enforceable through the court system effectively in the same way as a court judgment: see s.141 of the 2007 Act. 14. In exercising these financial orders the Legal Ombudsman is not required to assess liability in accordance with the law of England. By s.137(5) of the Act: The power of the ombudsman to make a [payment order] is not confined to cases where the complainant may have a cause of action against the respondent for negligence. On the contrary, by s.137(1) the determination is to be on the basis of what the ombudsman considers ʺfair and reasonableʺ. 15. An order by the Legal Ombudsman that a lawyer make a payment to a client would engage both article 6 and article 1 of the 1st Protocol of the Convention. It was held by the Court of Appeal in R (Heather Moor & Edgecombe) v Financial Ombudsman Service [2008] Bus LR 1486 at paragraphs 42 to 43 that both those articles were engaged in the case of a compensation order made by Financial Ombudsman Service. It is hard to imagine any reason why the position would be different in the case of the Legal Ombudsman. 3
16. It follows that some element of predictability and consistency is required of decisions by the Legal Ombudsman. That is because: a) Both article 6 1 and article 1 of the 1st Protocol 2 imply adherence to the principle of the rule of law. b) It is a facet of the rule of law that the law be in the words of Lord Bingham ʺaccessible, and so far as possible intelligible, clear and predictableʺ3. c) By s.1(1) of the Act one of the regulatory objectives is ʺsupporting the constitutional principle of the rule of lawʺ. d) In the Heather Moor & Edgecombe case Stanley Burnton LJ said at paragraph 49 that Financial Ombudsman Service (which he held complied with the requirements of accessibility and predictability) would be subject to judicial review if there was an unreasoned and unjustified failure to treat like cases alike. In the absence of information about decisions, a respondent has no way of knowing whether this requirement of consistency has been met. 17. The question of precisely how the Legal Ombudsman will achieve the required accessibility and predictability in its approach to the exercise of its ʺfair and reasonableʺ jurisdiction is a topic beyond the scope of this paper. But it is an obvious observation that the Legal Ombudsman will promote those aims by the publication of some major decisions. 18. That would be in line with the recommendation of Lord Hunt of Wirral in his review for the Financial Ombudsman Service: I therefore recommend that the FOS should: * select and publish suitable decisions in full, but anonymised form... to show the relationships between the broad principles applied to resolution of categories of cases and their application in practice 4 19. One way of implementing this approach would be for the Legal Ombudsman to publish the full text of its decisions in respect of cases in which it makes a financial order 1 Golder v UK [1979-80] 1 EHRR 524 paragraph 34 2 Lord Hoffmann in R(Alconbury Ltd) v Environment Secretary [2003] 2 AC 295 at paragraph 73 said that Article 1 of the First Protocol implies the rule of law. 3 lecture entitled "The Rule of Law" published in [2007] CLJ 67 4 paragraph 5.20 Lord Hunt of Wirral's review (2008) 4
(whether by way of compensation or repayment of fees) of a sum above some suitable financial threshold, such as, perhaps, 15,000. 20. Another way would be for a selection of suitable decisions to be made (as suggested by Lord Hunt). If this is the course, the selection ought not to be in the sole hands of the Legal Ombudsman. We would ask that the Bar Council be given a voice in the making of such selection. The level of decisions to be published 21. There is no benefit in the publication of the outcomes of cases where there is an informal resolution. Indeed, general thinking today is strongly favourable to the confidentiality of mediation processes, seeing this a key contributor to the amicable settlement of disputes. Promoting the settlement of disputes is, of course, regarded, rightly, as in the public interest. It is only formal Ombudsman decisions where there is a consideration favouring some publication. (B) Should the Legal Ombudsman identify lawyers? 22. Barristers are not afraid of being told off in public. More than for most other occupations, it is a daily hazard, as many judges are quick to complain when they see ground to criticise those appearing before them. Nonetheless, there are two particular features of barristersʹ working lives which point against naming barristers in respect of the kinds of cases with which the Legal Ombudsman will be concerned. 23. The first is the extent of damage to a barristerʹs career which may be caused by naming in a published report. Barristers receive the overwhelming majority of their work from other lawyers, namely solicitors. All lawyers, including solicitors, are dutiful readers of law reports: to maintain their professional skills they need to do so. A by product is that any determination against a barrister will be widely read both by his professional colleagues and his professional clients. Recognition of this factor has led courts to adopt the frequent practice of anonymising reports of cases concerning wasted costs applications against barristers: these cases are often reported under such titles as Re a Barrister (wasted costs order) (No 1 of 1991). 24. The second is that barristers are peculiarly exposed to complaints from unhappy lay clients. Cases in court usually have a loser as well as a winner. High emotions are frequently involved. The dissatisfied litigant has a tendency to look for somebody to blame for the misfortune of the outcome. It may be the judge; often it is a lawyer. Those convicted of crime, especially those imprisoned, look for routes to an appeal which might overturn the conviction: if their lawyers advise that they see no grounds for an appeal, such clients are not always honest in what they then allege against their lawyers. Clients involved in family disputes are another category of common 5
complainants: the emotions involved in a divorce, and perhaps the loss of regular contact with a child, can be so high as to affect the reliability of the perceptions by such clients of what their lawyers have said and done. 25. None of these considerations detract from the desirability of naming barristers convicted of professional misconduct. Indeed, barristers consider it very important that any of their professional colleagues who commit such offences as misleading the court should be named. Our working lives rely on trust, and we need to identify the tiny minority who may not be trustworthy. For a different reason there is no question of anonymity for a barrister sued in court for negligence: the reason then is the principle of open justice 5. But cases determined against lawyers by the Legal Ombudsman will not involve a finding of professional misconduct or negligence. They are likely normally to be complaints of some kind of shoddy work or lack of sensitivity. 26. The weight of the desirability of transparency in the work of a public body has to be balanced against the desirability of individual privacy. In most work situations there would be no question of publication of criticism for shoddy performance: for instance, an employeeʹs personnel file would normally be regarded as attracting some article 8 privacy protection. Where the balance comes down is heavily affected by the seriousness of the determination made. The policy of the BSB which in this respect the Bar Council firmly supports has been that the balance comes down in favour of naming if there is a finding of professional misconduct, but against naming where the finding is only of inadequate professional service. 27. An uncomplicated policy for the Legal Ombudsman which will continue that assessment of the right balance would be, quite simply, not to name barristers or other lawyers in respect of whom complaints are determined. 28. The following factors would also support such a policy: a) It will often be hard for the Legal Ombudsman to comply with the statutory prohibition on publishing particulars which could identify a complainant if a barrister is named. Barrister work is typically in open court: once a barrister and a set of circumstances are published, the identity of the client may become ascertainable. b) There is an unattractive imbalance in a system in which a client has the protection of being able to make a dishonest and irresponsible allegation without any risk of this being published, whilst the person against whom a complaint is made is at risk of potentially career damaging publicity. (Similar considerations led to the inclusion in the Coalition Government Programme of a proposal to extend anonymity to rape defendants.) 5 The article 6 presumption of an open and public hearing has in the case of the Legal Ombudsman been negatived by Parliament in s.150 of the Act. 6
c) Complaints to the Legal Ombudsman are far more likely in some fields of work than others. Criminal work and family work are two of the most obvious examples: these have accounted for a high proportion of complaints from clients to the BSB. Risk of publicity could become a factor encouraging barristers to develop practices in fields other than crime and family. However, these are the fields in which, by reason of the low level of legal aid fees, barristers already have the least incentive to develop practices. One of the Actʹs regulatory objectives is improving access to justice. That objective would be promoted by a clear Legal Ombudsman policy not to name lawyers against whom complaints are made. d) If the Legal Ombudsman does publish the names of lawyers, this will add to the pressures to settle baseless complaints. Any system which contains unnecessary pressures of that kind is a bad system. e) A barrister has traditionally been regarded as liable for his clerkʹs mistakes. For instance, if the clerk forgets to tell a barrister he has booked to attend a court the next day, the barrister will take the blame and accept liability to wasted costs, even though not the subject of any personal criticism 6. One imagines that the Legal Ombudsman would take the same approach in the interest of a client. In such situations there is a risk that unjustified opprobrium will stick to a named barrister. Never naming if complaint dismissed 29. Even if the policy advocated above is not adopted, we would strongly urge an inflexible policy of not naming lawyers where a complaint is dismissed. In such situations there can be no conceivable public interest in naming, whilst unnecessary embarrassment, intrusion on privacy and the ʺno smoke without fireʺ factor would all weigh heavily against naming. A right to publication including naming if requested by the lawyer 30. There is one exception to the above policy: that is where a lawyer asks for publication and to be named. In this case it should be accepted that he has the right to require such publication. Naming persistent offenders? 6 An example was R v Rodney [1997] PNLR 489 7
31. The Discussion Paper mentions the possibility of naming persistent offenders, for instance if a lawyer has had over 3 complaints upheld in a year. The practice of the Financial Ombudsman Service is cited as a precedent: its threshold for this is fairly high, namely 30 complaints within a period of 6 months. It is a possibility that such a policy could be adopted by the Legal Ombudsman, but one ought to appreciate the rather different contexts. In the field of financial services a string of complaints, for instance of unsuitable sales practices by a large corporation, may reflect a systemic element, such as misleading text in sales brochures. By contract, shoddy work by lawyers is likely in every instance to be different, just as every lawyerʹs case is different. It is implausible that a firm or an individual lawyer will have a systemic practice of shoddy work. 32. We are also concerned that chance factors might lead to a barrister suffering career damage. Take the situation of a barrister, B, acting for 4 defendants in a criminal trial. They are all convicted, and, after losing their appeals, they all make a wide range of complaints about B to the Legal Ombudsman. The Ombudsman finds no substance in their main allegations, but does accept that in each case B failed to express appropriate sympathy to their wives after the verdict. So this counts as 4 upheld complaints against B. Almost certainly no other barrister that year will have collected a string of upheld complaints within a period as short as 12 months. So Bʹs name sticks out like a sore thumb for any member of the public consulting the Legal Ombudsmanʹs website. Such an episode could cause significant and undeserved career damage to B. 33. Therefore, whilst at first sight a practice of naming persistent offenders sounds reasonable, its application would be inappropriate in the context of complaints against barristers and other lawyers. How long should names remain published? 34. If there is any publication of names, such identification should be removed after a short period of time. We suggest adopting the BSB period of 2 years. Thereafter, the report of the decision, if it is suitable for publication for accessibility reasons, should be available in anonymised form. Summary 35. The Legal Ombudsman should publish some formal decisions in full, but anonymised, form in order to show the broad principles applied to resolution of categories of cases and their application in practice. 36. The Legal Ombudsman should not name individual lawyers or firms. 8
Attachment: BSB paper entitled ʺPublication of disciplinary findingsʺ 9
Answers to questions posed Q1. Do you agree that these are the right principles to guide us in thinking about publishing decisions? Only up to a point. The Discussion Paper fails to recognise the importance of accessibility and predictability in its approach to the exercise of its ʺfair and reasonableʺ jurisdiction where this leads to the making of substantial financial orders against barristers. It also fails to mention that public policy favours the settlement of disputes and that confidentiality assists in mediation and compromise. Q2. Do you think there is likely to be potential impact on any particular group of lawyers or on lawyers who work in specific areas of the law (which might attract more complaints) or potential impact on diversity within the profession? If, contrary to our suggestion, individuals are named, this could become just another factor discouraging barristers from developing practices in the fields of criminal and family work. Q3. We have set out the 5 issues we consider need to be taken into account in developing our approach to the publication of our decisions. Do you think these are the right issues to consider? Yes. Q4. Do you have any views on how we might approach the first 3 issues we set out? Issue 1: Whether any information is published at all Issue 2: The types of cases published Issue 3: The levels of decisions published The Legal Ombudsman should publish some formal decisions in full, but anonymised, form in order to show the broad principles applied to resolution of categories of cases and their application in practice. Q5. Regarding issue 4, the key question is whether there are advantages in us identifying the lawyer or firm involved. Do you agree or disagree with this idea? The Legal Ombudsman should not name individual lawyers or firms. Q6. Regarding issue 5, do you have a view on the form of publication? If so, what do you think would be the advantages or disadvantages of the different options we mention? If and when there is to be publication, the report should be published in its entirety. Otherwise, the principal benefits of publication will not be achieved. 10
Q7. Are there any other points or issues you wish to raise in relation to this discussion paper about publishing our decisions? As set out above. 10 January 2011 11