Name and shame game

A popular perception of solicitors is that we operate in an outdated legal bubble, cosily insulated from the real commercial world. This image was not assisted by the fact that we were until recently governed by the Law Society which acted as our regulator, enforcer, complaints handler and trade union. Unsurprisingly, the public doubted that the control of lawyers by lawyers was truly independent or in its best interest.

Publish complaint records

This lack of public confidence was forcibly addressed by the Legal Services Act 2007. Among other things, the act set up various new bodies to police the profession, including the Solicitors Regulation Authority (SRA) and the Legal Complaints Service (LCS). Both have courted publicity since forming and are no strangers to controversy as the profession feels the force of their increasingly flexed muscles.

In the past two years, the SRA and LCS have turned their respective attentions to the highly emotive issue of publishing regulatory decisions and solicitors' complaints records, with the stated intention of assisting consumers to make an informed choice when sourcing legal services.

The SRA decided, following consultation with the profession, to publish certain regulatory decisions on its website with effect from 1 January 2008. Consumers can now search against an individual solicitor's name for such decisions. The information stored includes a short statement of the decision and brief factual details, and will remain on the website for three years.

No details of the solicitor's given defence or attempts to resolve the client's complaint appear, which has led to criticism that the published information is out of context and thus not useful to consumers. In addition the records relate to individuals and the database is not currently searchable by firm name, which is of little assistance in informing consumers of a firm's performance.

The LCS, on the other hand, has taken some considerable time to make its decision, beginning the process of consulting with the profession in January this year and once postponing their conclusion. The board met on 10 September 2008 and it is understood that while a decision has been made, it remains wrapped in secrecy and will not be announced until 10 October 2008.

If the outcome is that complaints will be published, it will come as no surprise as the LCS has stated from the outset that its preferred option is to publish the records.

In fact The Law Society attacked the LCS in January with an allegation that they were only paying lip service rather than going through a proper process of consultation.

The Law Society has also accused the LCS of improperly using its resources by even considering this issue, when its true purpose is to deal with consumer complaints at the coalface, especially since the LCS was only formed in January 2006 and will be replaced by the new Office for Legal Complaints in around 2010. No punches have been pulled here.

Consumer protection

The LCS justifies its proposal on the basis that consumers have a right to know which firms offer shoddy customer service and ought to be avoided.

Of course nobody can argue with that. It must be right that consumers deserve protection from lawyers who flagrantly and repeatedly disregard professional rules and offer no consumer service to speak of, but such examples are thankfully few and far between.

The facts are that there are over 9,000 law firms in England and Wales.

In 2007/8, only 597 complaints were upheld by the LCS, meaning that even if each complaint related to a different firm, consumers would receive no information whatsoever regarding the other 93 per cent of firms, so continuing to make decisions in a vacuum.

Add to this the admission by the LCS chairman himself, Professor Shamit Saggar, that the majority of consumers would not use a complaints record to choose their solicitor in any event and the reasons behind the LCS' preference to publish becomes yet harder to fathom.

Anonymised case studies

There is of course also the very difficult issue of mechanics and exactly what should be published. There is no obvious answer. The LCS' initial proposal was to adopt a similar system to the SRA, that is publish decision summaries to remain on a firm's record for three years.

Consumer-focused bodies around the world have a range of tactics such as publishing anonymised case studies detailing common errors and complaints, which could be used as part of a general client care training and guidance programme to support solicitors in the improvement of consumer service.

The Law Society favours such an approach here.

And what about celebrating the best providers of consumer service by publishing their names? Lord Hunt's report on this issue for the Financial Ombudsman Service in April 2008 recommended an awards scheme for this purpose, and even suggested giving a wooden spoon to the poorest performer.

Some may consider that idea a somewhat flippant response, but professionals value the respect they command amongst their peers and receiving a wooden spoon at a public awards night would surely be an effective deterrent for the firm in question?

In addition, a little flippancy comes as a welcome light relief in the current gloomy climate for solicitors, as in recent weeks any protective legal bubble has most definitely popped.