Ombudsman's casebook

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

From time to time, the Office for the Supervision of Solicitors (OSS) has to deal with solicitors who will do their best to avoid their professional and statutory obligations and otherwise try to obstruct and frustrate the OSS's best efforts at complaint handling - in some cases testing the OSS's powers and complainants' patience to the limit.

The following are two cases reviewed by the ombudsman.

A taxing time

Mr H, a solicitor, prepared wills for Mr & Mrs I.

The clients later made a substantial loan to Mr H.

Mr I then died and in mid-1995 his son complained to what was then the Solicitors Complaints Bureau (SCB) that, when the solicitor repaid the loan, he set off two legal bills against it, and delayed in applying for a remuneration certificate.

Three months after the request for a certificate had been made, Mr H assured the SCB that he would make the necessary application to the Law Society.

The solicitor continued to assure the SCB/OSS throughout 1996 that matters were in hand.

Unfortunately, no steps were taken to apply for the certificate and so, in early in 1997, the OSS's compliance and supervision committee decided to give Mr H 14 days to take action; if he failed to do so he would be reported to the Solicitors Disciplinary Tribunal (SDT).

Once again, the solicitor did nothing and in due course, he appeared before the tribunal and was fined 1,000 plus costs.

In January 1998, Mr I's son complained again to the OSS.

He said that a provisional remuneration certificate had reduced the solicitor's bills by more than half and that a refund of more than 8,000 was due.

However, according to Mr H, he was now applying to the court for a detailed assessment of costs.

Events then took a familiar turn, with the solicitor assuring the OSS that his application to court was in hand.

After several weeks, it was clear that the solicitor had done nothing to advance his court application.

The OSS decided to refer Mr H once more to the compliance and supervision committee, which directed him to refund the fees, together with interest.

However, Mr H was still not ready to concede defeat.

He refused to pay interest and it was not until the issue went back to the committee for a third time and a direction was made, that the outstanding payment materialised.

Not surprisingly, the OSS referred Mr H to the SDT again, where he was fined 3,000 for failure to account to clients, delay and unbefitting conduct.

Mr I's son complained to the ombudsman that the solicitor had not been punished adequately, that he had not been compensated and that he needed to make a second complaint to the OSS following Mr H's failure to apply for a detailed assessment of costs.

The ombudsman decided that, overall, in twice referring Mr H to the tribunal, the OSS had done all it could to deal with the solicitor's delays and failures to comply with directions.

However, the ombudsman was critical of the OSS for failing to keep the complainant informed of progress with the tribunal proceedings and for not investigating the issues of overcharging and late delivery of a bill.

Reluctant disclosure

Ms J instructed a solicitor, Mr K, in connection with several litigious matters.

She complained to the OSS that the solicitor had not responded to her letters and telephone calls and was generally avoiding her.

Also, he had not replied to a complaint resolution form and had thwarted the best efforts of the local law society at conciliation.

After an initial delay, the OSS wrote to Mr K asking for his comments on Miss J's complaint.

The solicitor failed to reply to any of the OSS's letters and things were brought to a head when the OSS warned Mr K that, unless he replied within seven days, disciplinary action would be taken and an order for production of his file under section 44B of the Solicitors Act 1974 would be made.

The solicitor failed to respond and an order was made.

Five weeks later, Mr K apparently handed over his file to the OSS, although, on closer scrutiny, several letters and other documents were missing.

Fortunately, the missing information was available elsewhere and the OSS was able to conclude that the solicitor had provided an inadequate service.

It directed that he pay the complainant 350 compensation.

True to form, Mr K delayed in paying the compensation and it was only when the OSS threatened him with the SDT that he paid up.

The ombudsman reviewed the OSS's handling of Ms J's complaint and concluded that the OSS's decisions had been entirely reasonable.

However, she was critical of the delays at the OSS and the fact that it only identified its own shortcomings and paid Ms J compensation after the matter had been referred to her office.

Swift action

It is clear from these cases and others seen by the ombudsman that some solicitors are only too willing to add to the OSS's problems.

The Law Society's declared strategy in its new approach to regulation is to place much greater emphasis on ensuring that solicitors comply with their professional rules.

In cases like these the OSS must be prepared to act swiftly and decisively, using all the enforcement powers at its disposal and where necessary, putting matters into the hands of the SDT.