The Legal Ombudsman has taken the highly controversial decision to name lawyers and law firms in circumstances where there is a ‘pattern of complaints’ against them or when it is in the ‘public interest’ to do so.
The regulator denied that its object is to ‘name and shame’ transgressors, but acknowledges that the new policy could damage the businesses of those it identifies. The policy will take effect from April 2012 and will not be retrospective.
The ombudsman began publishing anonymised case data earlier this year, after taking over from the Legal Complaints Service in October 2010. However, in April it postponed a decision on the contentious naming issue, prompting consumer watchdog the Legal Services Consumer Panel to accuse it of capitulating to ‘spurious objections from the legal profession’.
Unveiling the new policy, ‘naming lawyers - protecting consumers’, Elizabeth France, chair of the Office for Legal Complaints, which oversees the ombudsman, said: ‘We consider we have struck a balance between protecting consumers and encouraging an independent and strong legal profession. Every day we know most lawyers do a good job for their clients, but there are some who simply don’t. That’s why it is in the profession’s interest to make sure all who provide services to consumers are doing so effectively.’
From next April the OLC will implement a policy of identifying lawyers or law firms in two ways: Lawyers or firms which have been involved in cases where there is a ‘pattern of complaints’ or set of individual circumstances that indicate it is in the public interest that the firm or individual be identified, will be named. This information will be published immediately this is deemed warranted, from April, and from July it will also be included in quarterly information updates.
Decisions on publication will be made on a case-by-case basis. Relevant criteria may include whether: there is evidence in the case of systematic failures that indicate that other consumers will be adversely affected; the facts of the case show exceptional or severe impact on an individual complainant (or group of complainants); there is evidence of very serious service failure; or there is evidence of significant lack of cooperation with the ombudsman that has caused detriment to the consumer in delaying resolution.
Explaining the move, the OLC said there is ‘broad agreement’ among consumer bodies, lawyers and professional bodies that the naming of lawyers or law firms ‘should be used to address severe and systematic service failures where it is in the public interest to do so’. Publication will occur even where the relevant regulator has begun disciplinary proceedings.
The ombudsman’s data tracking has suggested the number of lawyers or firms identified in this way will be very low, though the policy ‘runs the risk of some commercial detriment’ to them. The identity of complainants will remain confidential.
Also from April, the OLC will in addition require the names of all lawyers or law firms involved in complaints that have been resolved by a formal ombudsman decision to be collated. This information will be published quarterly from July in the form of a table summarising the numbers, outcomes and areas of law involved in the relevant cases. It says this will improve standards and avoid penalizing the profession for ‘occasional lapses’.
The consumer panel welcomed the new naming policy, which will be reviewed after two years. Chair Elisabeth Davies said: ‘This is great news for consumers, who tell us they feel in the dark when trying to find a good lawyer. There will no longer be a minority in the profession who provide a poor service and fail to put things right. People use legal services at critical moments in their lives and it is entirely appropriate that those who provide these services are held accountable if they get things wrong.’
Consumer minister Ed Davey MP commented: ‘I am pleased the ombudsman has decided to publish this data. This will make the legal profession stronger, improve service standards and consumers will be better protected as a result.’
A Law Society spokesperson said: 'While it is important for consumers to be able to make an informed choice about which legal service provider to choose, we do not believe that publication of this data in the proposed format will help consumers make that choice.
'The lack of data about the size of firms or the number of transactions they undertake means that publication will penalise firms who do high volumes of work even where they have had relatively few complaints. It will also disproportionately affect those solicitors who work in certain areas of law where the level of complaints are higher. These solicitors often serve vulnerable clients.
'Equally, as the ombudsman does not have jurisdiction over all legal service providers, many of which are unregulated, such as will writers, the name and shame approach does not give the consumer a true reflection of the market and is far from transparent.'