There has been a lot of discussion about the Legal Ombudsman’s recent announcement on publishing the names of lawyers who have given poor service to their clients. The LeO was keen to emphasise that this applies to only a small proportion of lawyers.

Inevitably some of this balance can sometimes get lost in the media coverage. In one case, a journalist was so desperate to use the term ‘name and shame’ that he lifted the one mention of the term from our discussion paper. He failed to mention that we had used it to warn against such a pejorative label.

And the LeO’s role is just as much to exonerate lawyers who have been the subject of groundless complaints as to focus on the small number of lawyers who consistently fail to provide good service. And that is what the LeO does. In only half of cases does it conclude that there was indeed some cause for complaint. In the other half, complainants decide to withdraw the complaint themselves, or we find that what the lawyer did was entirely reasonable. Here are a few examples.

Trusting trustees

Mrs S engaged a solicitors’ firm to carry out the instructions given in Mrs S’s mother’s will. This included setting up a trust, naming two professional trustees who were two solicitors from the firm and two lay trustees - Mrs S’s stepfather and a family friend. The trust gave the life interest to her stepfather. On his death, the trust would come to an end and the trust’s funds would be divided equally between Mrs S and five other beneficiaries.

Mrs S and the other future beneficiaries of the trust requested a deed of variation of the will. This proposed that Mrs S’s stepfather would keep the matrimonial home and surrounding land, and the estate would be divided into six shares, with each beneficiary taking one share.

Mrs S’s stepfather, who is also a lay trustee, initially agreed to the deed of variation. However, he then withdrew from the negotiations, as he wanted the trust to run, as his wife had wanted. The firm was involved in assisting Mrs S’s stepfather regarding the negotiations about the deed of variation; another member of the firm who was not involved with the trust provided this advice.

After the collapse of the proposed deed of variation, Mrs S raised complaints against the firm and complained about how the trust was being managed by the trustees. Mrs S was concerned that the trust was not being managed appropriately and that the firm preferred the interests of her stepfather over the future beneficiaries.

Mrs S also received copies of the firm’s invoices and raised concerns about charges that should have been split between the estate and Mrs S’s stepfather. The charges that should have been split were for establishing title issues for the properties that were jointly held between Mrs S’s late mother and her stepfather.

The firm replied to Mrs S, confirming that a total of £4,000 had been charged to establish the title on the property that was jointly owned and agreed that this should have been split 50/50. The firm rectified the error by arranging for £2,000 plus VAT to be credited against future invoices for work done in relation to the estate.

The professional trustees have confirmed that they will collectively agree a way forward if required. They mainly dealt with one of the lay trustees who would inform the other lay trustee. The firm has confirmed that all of the trustees have been discussing the future investment of the trust, as they are aware decisions will need to be made to ensure the trust is run as Mrs S’s late mother wished it to be.

In this instance, the ombudsman could find no justification to agree with Mrs S that she had received poor service. It was the ombudsman’s view that the complaint should be raised against the trustees, if Mrs S and the other beneficiaries believed that the trust is being run inappropriately. It seems that once Mrs S’s stepfather had withdrawn from the deed of variation, this caused the basis of the complaint - and is a dispute between family members rather than against the work of the firm.

No parking

Outside Mrs L’s apartment there are five parking spaces. It is not enough to cater for all who live in the building; some have secure parking while others do not. The estate agent’s literature given to Mrs L stated that there was secure parking - and the home information pack also stated this. This turned out not to be true, as borne out by the lease. In fact, the lease stated that Mrs L has to be over 50 to park there. Mrs L complained that this issue should have been picked up and acted upon by the solicitor who was engaged to carry out the conveyancing.

Investigating the complaint, the ombudsman found that Mrs L had never expressed a need for parking, was given a draft copy of the lease before signing it, as well as on the day of signature. It was felt that she had had opportunity to read through the lease. She expressed no concern that the lease was different to estate agents’ literature. Furthermore, the firm tried to help get her in touch with people who could help with the parking issue.

The ombudsman found that there was no evidence of poor service. The firm had dealt with the complaint and investigated it promptly.

Under supervision

Mrs D complained about a solicitors’ firm which she said failed to follow her instructions in a case involving contact and residence of her son. In particular, she said that the firm did not follow her instructions at two hearings in 2009. Mrs D also said that she did not agree to have contact with her son on a supervised basis.

After investigation, the evidence showed that the firm advised Mrs D at the court hearings according to the circumstances of the case and matters that were raised by the other side. This was their professional opinion. It was clear that instructions were sought from Mrs D at the hearings and the firm represented her in ­accordance with those instructions.

It was also clear from the attendance notes that all parties had agreed and were aware that contact was to be on a supervised basis.

After a finding of no poor service, the complainant failed to respond to the recommendation report. As such the ombudsman decided to use his discretion to close the case as Mrs D failed to respond to our ­contact. What I hope these cases demonstrate is that we do take an even-handed approach to our work. But I can understand why the recent decision by a High Court judge that a solicitor should pay £5,000 compensation plus £15,500 costs for not co-operating with an ombudsman investigation should spur some debate in legal chatrooms.

In a glorious demonstration of the truth of Godwin’s Law, one lawyer even drew a comparison between the outcome of the case and the rise of Nazism in 1930s Germany. The reality is that we took the decision to take Mr Young to the High Court reluctantly and only after six months of attempts to persuade him to co-operate had proved fruitless. It is not something that the LeO intends to do frequently and will never do it without giving the lawyer a reasonable amount of time to consider their position.

But the power to take a lawyer to court was explicitly given to us in the legislation and it is a power which we will use when all else fails. In the end, we are here to ensure that complaints are resolved and we cannot allow the refusal to co-operate to prevent that happening.

Perhaps here I should give the last word to Justice Lindblom who ruled in the case: ‘The court must not lose sight of the principle that, when it has before it an application to commit, its immediate concern will be to secure compliance with the order which has been flouted or ignored.’