Ombudsman's casebook

A monthly column of examples from the files of the Legal Services Ombudsman

Excluded mattersIn June 1999, as the Office for the Supervision of Solicitors (OSS) struggled to stay afloat amid the rising tide of client dissatisfaction, the Law Society's Council agreed that it should 'cease to deal with certain matters' in order to 'concentrate resources on protecting the public'.

One of the areas affected by the policy change was the non-payment of experts' and barristers' fees by solicitors - even in the most straightforward cases.The OSS will only take up a complaint about non-payment of an expert's fees 'where the complainant can produce evidence of a judgment against a solicitor'; or where a solicitor has 'failed to comply with a decision of the joint tribunal'.

However, as the following cases show, the policy change has not been understood by complainants, who have had to jump through additional hoops before arriving back at the OSS.

And even at the OSS itself, the policy seems to have been a source of confusion, leading to yet more misery for those caught up in the process.Not quite what the doctor orderedDr L, a medical expert, was not paid by solicitors for several reports he had prepared on behalf of clients.

He sued in the county court and ended up with a judgment against the solicitors for more than 3,000.

After 14 days, the debt had still not been paid and so Dr L instructed the bailiffs to pay the defaulting solicitors a visit.

Dissatisfied with the behaviour of the solicitors, Dr L complained to the OSS about their conduct.

The OSS said that, although it couldn't assist with debt collection, it would investigate the complaint, but would limit its investigation to the implications of a county court judgment on the practising certificates of the individual solicitors.

For reasons that are far from clear, it went on to say that its investigation was confidential and its outcome would not be disclosed to Dr L.

Dissatisfied with the OSS's stance, Dr L complained to the ombudsman.The ombudsman decided that the OSS's response to the complaint was flawed.

She accepted that the OSS had no powers to force the solicitors to pay up, but took the view that the OSS should have investigated Dr L's complaint that non-payment of fees - even in the face of a county court judgment - was conduct which brought the profession into disrepute.

As to the impact of a judgment on the solicitors' practising certificates, the ombudsman said that it was not within her remit to express a view on the OSS's activities in this area; but she did urge them to put any conditions imposed on solicitors' practising certificates into the public domain - a change which has recently been announced.Following the ombudsman's recommendation that the OSS reconsider Dr L's complaint, an OSS committee decided that two solicitors in the firm had breached rule 1 and principle 20.01 of The Guide to the Professional Conduct of Solicitors and resolved to reprimand them severely.A counsel of imperfectionMr T, a barrister's clerk, complained to the OSS in July 1997 that solicitors had failed to pay the agreed fee of a barrister, in spite of no less than seven chasing letters.

After some confusion at the OSS, the solicitors agreed to pay the outstanding fees and so the OSS closed its file in April 1998.

Unfortunately, the solicitors did not keep their promise and the situation was made worse by the failure of the OSS to reply to Mr T's letters.

Eventually, in November 2000, the OSS replied saying that it could not investigate Mr T's complaint because the 1999 policy decision excluded such matters from its jurisdiction.Mr T complained to the ombudsman.

He said that the OSS's decision not to get involved contradicted his experience in other cases when it had investigated complaints pre-dating the policy change.

The ombudsman agreed.

She recommended that the OSS should finish what it started and investigate Mr T's complaint.

She also criticised the OSS for delays in excess of two years.The tide of complaints at the OSS appears to have ebbed, but the ombudsman still sees a steady flow of cases where experts and barristers have become exasperated at the failure of solicitors to pay up for work done.This is compounded within the OSS by confusion as to how its own policy should be applied.

The ombudsman accepts that the OSS has no role as a debt collection agency, but the behaviour of some solicitors in this area raises professional conduct issues and is in danger of bringing the profession into disrepute.