As a new creation and as a lay organisation, rather than one already embedded in the minds of lawyers, LeO has always considered it important to try to break down the barriers between us and the profession.
So one of the things we have tried to do since we got going – indeed long before we got going – was to put ourselves about at meetings and events.
This means that every week or two, I am hoisting myself to my feet on some legal platform or other to address a meeting of polite – or sometimes not so polite – solicitors.
But for whatever reason, the past few weeks have been a particularly busy time for these sorts of speaking gigs.
Besides talking to presidents of local law societies and attending the Law Management Section conference in London, I have been to the Law Society in Douglas, Isle of Man, and the Sole Practitioners Group in Harrogate.
All within the last two or three weeks.
The same questions keep coming up.
How does LeO fit with the Solicitors Regulation Authority? What is our role in assessing conduct issues? How do the underlying assumptions behind our scheme square with the new push for outcomes-focused regulation?
Answering – and, in fact, working out what we should do on some of those issues – has been relatively straightforward.
It has helped that, twice in the last four events, I have found myself sharing the platform with Anthony Townsend, the redoubtable SRA chief executive.
We have a way to go before we achieve full double-act status (you can add your own Laurel and Hardy/Morecambe and Wise/Armstrong and Miller references) but, having had to sit through each other’s speeches on several occasions, we at least have developed a common language to explain the relationship.
Clearly, LeO and the SRA do very different things.
Clearly, too, we have different structures, different governance, different cultures and traditions.
But we have a common cause. We both spend a lot of time policing the edges of the legal world, trying to preserve the reputation of the solicitors’ profession (and, indeed, in our case, the broader legal profession) by identifying and tackling some of those who operate at the margins and whose behaviour so often risks besmirching the name of all lawyers.
Whenever we talk privately, too, we rapidly find that we have names in common.
The people and firms who are most often complained about to us are the very people and firms whose behaviour is under investigation by the SRA.
Of course, LeO’s role is to obtain redress (where appropriate) for customers, rather than punishment for lawyers.
Ours is not a disciplinary function – that is for the profession itself to do, and the SRA is the agent for doing it.
But we overlap in two ways. First, failure to cooperate with LeO is, in itself, a conduct matter.
Fortunately, in our first few months we have come across relatively little overt non-cooperation.
Where we have, persuasion has usually worked and we have rarely had to invoke our statutory powers to enforce cooperation.
More common is our role in tipping off the SRA about examples of shoddy or downright dishonest behaviour on the part of individuals or firms.
In most such cases, the decision is fairly simple.
When we see a firm which has disappeared into receivership, owing complainants tens of thousands of pounds, reappearing under another name in another town, it is not a difficult call to involve the SRA.
But in many cases, too, it is difficult to work out whether what we are seeing is the result of accident, carelessness, or something deeper.
Take the issue of conflict of interest.
We all know that taking on work where you are conflicted is a clear conduct issue. But consider the following four cases – which should we be referring?
What a pane
Mr B regularly used a trusted family solicitor for both business and personal purposes, and instructed him to help with the lease on a flat he was buying.
The lease was completed promptly and Mr B moved in and started renovating his new home, putting in new windows throughout.
A couple of weeks after the sale, Mr B got a letter from his landlord stating his intention to sell the building, which was quickly followed by a letter from the local council which said that the new windows did not comply with a local conservation order and so must be replaced.
The landlord had also had a letter from the council about the windows, and he had confirmed that he would get them changed before the sale.
A ‘for sale’ sign soon went up outside the building – bearing the name of the solicitors’ firm that Mr B had been using.
Mr B rang the landlord to find out what was going on, and he confirmed that he would speak to his solicitor who did, indeed, appear to be the one being used by Mr B.
Mr B contacted his solicitor to inform him that he was representing both him and his landlord, but the solicitor confirmed that he had been assured by the partners of the firm that there was no conflict of interest.
The landlord changed the windows, but Mr B believed that he had opted for poorer quality ones to cut costs.
Mr B was concerned about the implications, given that he was responsible for the upkeep and insurance of the property.
He contacted his solicitor, who said his work was complete and he was no longer representing either party.
So Mr B contacted the landlord, who agreed to pay £2,500 to Mr B in recognition of the trouble he had been put to.
The compensation offer was posted to Mr B – and arrived on headed paper from the same solicitor.
Mr B formally complained to the firm about the conflict of interest, and was advised that some solicitors would choose to represent both parties and others would not.
They were sorry that Mr B was not happy, but did not accept that there had been any poor service.
Our investigation concluded that the firm could have been more open with Mr B, and many of the issues had arisen as a result of poor communication.
In recognition of the upset caused to Mr B, the firm agreed to pay him £450 compensation.
Company X designed a logo and adverts for company Q.
The two companies had a misunderstanding, which led company X to seek legal advice regarding their work’s copyright.
Their solicitor stated that the contract signed by the two companies confirmed that copyright did belong to company X.
But the firm was still concerned that company Q might take legal action, so the solicitor advised that they may want to secure themselves further by registering their work with the Intellectual Property Office or signing an affidavit (sworn statement of fact).
X and Q had a meeting to sort out their issues.
Company X had been maintaining Q’s website for years, but company Q had now decided they wanted someone else to do it.
Company X suggested that they should purchase the logo and adverts from them for £20,000, so that they could keep their trademark brand.
But company Q stated that they were only willing to pay £10,000 for the logo and, if they were not happy, they could contact their solicitor.
To the surprise of company X, it then became clear that they had both been using the same solicitor.
The solicitor told company X that they could no longer represent either company, and they would need to instruct new lawyers.
After instructing a new firm, company X then discovered that their previous solicitor had in fact registered their logo with the Intellectual Property Office – but on behalf of company Q, meaning that they lost money on the work they had done.
Our investigation concluded that they had failed to advise company X in acting for company Q in registering the trade mark.
They had specifically failed to explain why they believed there was no conflict of interest between the two clients, or show that they had considered that a conflict may arise.
The solicitor was advised to pay £500 compensation in acknowledgement of the distress caused.
Brief had encountered her
A barrister was appointed to represent Mr M in a rather complicated and messy divorce case.
On the day of the hearing, the barrister realised that they had actually already represented Mr M’s wife, so could not continue to represent Mr M.
A second barrister was briefed before the hearing so that Mr M could be represented.
Mr M was furious and upset that such an obvious conflict of interest could have been missed, and only picked up so late in the day.
He felt that the replacement barrister did not represent him properly, because he did not have sufficient time to prepare.
Our investigation discovered that there had been a potential conflict of interest, which had been caused by a computer admin error.
The resulting last-minute change of barrister had obviously caused Mr M some distress, although it didn’t actually impact on his case.
In recognition of the error, the barrister wrote a formal letter of apology.
Acting in whose interest?
Mr H instructed a solicitor to prepare joint wills for him and his wife.
The same solicitor also acted for a company of which Mr H was both a director and shareholder.
All was going well, until Mr H and a former business partner fell out over money. The former business partner instructed the solicitor Mr H had used previously.
Mr H was extremely concerned by this, because the solicitor had knowledge of his financial situation, which would be material in the dispute.
He was also concerned that, as the solicitor had been on a retainer for his company, there would be a conflict of interest if he represented his business partner.
Mr H now faces financial problems following legal action carried out by the solicitor on behalf of his former business partner.
After we had looked into this case, it appeared that Mr H was not authorised to bring this complaint to the Legal Ombudsman because he was acting as a partner of the company and not an individual.
In the event, we took the decision to refer the second and the fourth of these cases to the SRA. But what do you think – was this the right judgement call? Who knows.
But this is symptomatic of the sorts of calls which our investigators and assessors are making every day.
So what is the lesson? It would be idle of me to try to tell you how to avoid criticism by the SRA, or to predict how outcomes-focused regulation will change the way the SRA approaches conduct. That is for them.
For LeO, our rule of thumb is simple.
We are not interested in whether or not solicitors have followed the letter of the regulations in the way they have gone about their work.
Nor are we interested in seeking to report solicitors for honest mistakes or one-off slips.
But if we see real evidence of solicitors falling short of the ethical values of the profession, or if the cases we see provide evidence not merely of mistakes but downright incompetence, do not expect us to sit here and ignore them.
Our job is to get redress for customers, where it is necessary.
But we are part of the regulatory framework, too. So if we are worried by what we see, we’ll be sure to share those worries with the regulators.