Powers go too far

Robert sayer argues that moves to increase the powers of the office for the supervision of solicitors should be resisted at the law society agm

Solicitors will soon receive postal notice of the Law Society's Annual General Meeting.

With it will be three motions.

They have been lodged by more than 90 solicitors who object to plans to increase the powers of the Office for the Supervision of Solicitors (OSS) and who maintain that even the present powers go too far.

l Motion one - limit the investigation by the Law Society/ OSS of complaints against members of the solicitors' profession to those involving serious professional misconduct.

In particular, to cease dealing with matters of inadequate professional service (IPS).

l Motion two - the Law Society shall not involve itself in any complaints involving professional negligence which are already covered by professional negligence insurance.

l Motion three - the practising certificate fee for 2001/2002 remains at the same level as the fee for 2000/2001, that is 495, and for 2002/2003 to reduce it to a sum not exceeding 400.

(The Society is planning an increase to 620 this year.)

Let's be clear about one thing.

We accept that policing misconduct - such as the theft of clients' money, breaking undertakings, genuine incompetence, acts that undermine the profession's reputation as a whole - is a legitimate role for the Law Society.

But IPS is not about misconduct, negligence or even incompetence.

It is about human error, the occasional minor mistake or simple misunderstandings that affect every business and which every one of us will be guilty of at times in our careers.

They shouldn't happen, but they do.

Motion one is about whether the Law Society should be involved in such matters at all.

We assert it should not.

Commercially minded businesses do their best to avoid mistakes.

When they occur they put them right.

If they don't they lose the client.

Let market forces weed out those who provide a poor service in exactly the same way they do in every other walk of life.

Accept the reality that even the best of us will make the occasional minor error.

Turning them into punishable offences is an over reaction which helps no one.

By pretending it can regulate the day-to-day minutiae of how we run our businesses the Society is promising the public something it cannot deliver and alienating its own members.

The Courts and Legal Services Act 1990 gave the Society power for the first time to take on IPS.

As an experiment, it has failed.

It is unfair, arbitrary, causes great stress to individual solicitors, is demoralising to all those in private practice, has done more harm than good to the profession's relations with the public, handed the government an unnecessary stick to beat us with, and is disproportionately expensive.

That power was discretionary - 'may' not 'shall'.

We have the right to admit it was a mistake and to drop it.

Do we have the moral courage to do so?

Regarding motion two, the Legal Services Ombudsman (LSO) wants the OSS openly to take on negligence claims.

It already does so through the back door by wrongly treating claims under 5,000 as IPS.

The pressure is on to increase that jurisdiction to 20,000.

We contend that would be unfair, that such claims should be left to our insurers, and that solicitors have the same right as every other citizen to have such disputes decided by a proper court.

The Law Society should stick to dealing with misconduct.

Its increasing attempts to impose a private legal system on solicitors is an abuse of its position.

Concerning motion three, last year the Law Society spent 65 million.

That expenditure is rising rapidly.

Two years ago, the practising certificate fee was 430.

Last year it was 495.

Next year it is planned to be 620.

By 2003 it is likely to be 900.

Is the Society worth it? Last year, the OSS cost 27 million and employed more than 420 staff.

Just three years ago, it cost 9 million.

If the OSS is given the extra powers it wants, by 2003 it is likely to cost 40 million.

Do we really want to go down that road? Dropping IPS now would save more than 10 million a year.

Enough to knock 100 off the existing practising certificate fee instead of increasing it by 125 or more.

If you sympathise, do please come to the Law Society's AGM on the 12 July.

Robert Sayer is the immediate past president of the Law Society.