The consumer panel’s valid concerns fall down on the lack of unified liability principle
The consumer panel’s recommendations that the legal ombudsman’s jurisdiction should be extended to consider third-party complaints has all the ingredients required to delight fans of the Legal Services Act. It has inspired lines about empowering consumers, raising professional standards, encouraging ethical conduct, and a pinch of the Legal Services Board’s obsession with healthy competition between legal services providers.
Lawyers employing bullying tactics on defendants shouldn’t be able to hide behind their duty to act in their clients’ best interests, it says, and house buyers should have the right to complain about the sellers’ conveyancers whose overly relaxed attitude to deadlines has caused a sale to fall through.
The report’s starting point is the lack of uncomplicated and affordable redress routes for those affected by lawyers’ conduct but who, because they are not clients, cannot turn to LeO. There is well-meaning and understandable concern that some individuals with “legitimate grievances” are left with no remedy. The thousands of defendants wrongly accused of illegal file sharing by the now defunct ACS:Law, for instance, didn’t get a penny in compensation for the stress caused, only the relative satisfaction that the sole practitioner behind the firm was struck off after an SRA intervention.
To convince us that its proposals are worthwhile the panel lists a number of examples where lawyers have been inappropriately protected behind the shield of the lawyer-client relationship. In addition to the “aggressive hounding tactics” used by the law firms that went after file-sharers, the panel mentions those employed by civil recovery agents who are similarly threatening defendants with court action if they do not pay up a “compensation” charge.
These examples are all relevant but where is the principle that binds them together? What do children who have been written out of their parents’ will as a result of a procedural defect have in common with a victim appearing as a witness in a criminal prosecution being mauled by the defence?
It is difficult not to agree with objectives such as “the need to reinforce professional ethics”. Perhaps less readily so with the need to provide “a useful counterweight to the overzealous pursuit of client interests”, although the underlying concern about fairness shouldn’t be ignored.
Lawyers who already follow the letter and abide by the spirit of their respective conduct codes should have nothing to fear – if anything because LeO has indicated that it will not entertain vexatious complaints. But what is missing to make this otherwise fair discussion a convincing proposition is a guiding principle offering lawyers clarity and certainty. The panel has acknowledged that much but hasn’t given any detail about how this could be framed in broad terms.
Most challenging would be the definition of the nature of the duty and the circumstances in which it arises. What lawyers will be most concerned about is the junction where this new quasi-fiduciary duty would meet the duty of care to their clients. Similarly, if LeO is not going to consider complaints from the point of view of negligence, on what basis would it make what kind of findings? There is no word either on the possible staffing implications at LeO, the likely costs and the fact that if these go beyond LeO’s budget the profession would in all probability be asked to pick up the tab.
Widening the scope of complaints that can be heard by LeO to include third-party complaints isn’t necessarily wrong. It is true that existing avenues for redress are not entirely satisfactory, cheap or quick – but at least they are premised on the application of due process. If LeO’s jurisdiction is extended to consider complaints by third parties, it cannot simply be a ‘lite’ version of the duty of care owed to clients or of the duty of care owed to any individual under the general principles of tort.
The panel wanted to put the idea out there to “spark discussion”; it has already triggered several fireworks.