The Legal Services Commissioner has delivered a speech which captures well the changes he has wrought in that office. It is fair to say that his new modus operandi is less legalistic, and designed to concentrate on the hard cases. He has instructed his staff to use the telephone, and, if necessary, to jump in a taxi and go and visit practitioners. Previously, this was an organisation with the following characteristics:
- the absolutely standard communication was by template-generated letter, in the post, which generally arrived quite a few days after the day it was dated;
- the only way to send an email was by sending it to the receptionist: complaint handlers’ direct emails were not made public (these days, I actually email people);
- if I rang and advised I was acting for a party to a complaint, they would not talk to me until I had had my client provide a written authority to do so — an attitude I am unaware of anyone else taking within the legal sector (doesn’t happen any more).
The Commissioner has established a dedicated litigation unit — very sensible indeed. He is using junior barristers to draft chronologies upon reviewing practitioners’ files (presumably he is satisfied that it is ethical for barristers to do what relatively recent Bar Councils have regarded as solicitors’ work), freeing up complaint handlers for other work. That is sensible too; every single disciplinary investigation or prosecution in which I act features a chronology drafted by me, but I only have a handful of current matters at any one time, while the complaint handlers have hundreds.
The publication of the speech is an indicium of a new openness, more details of which are contained within it. So too are the newsletters, of which the first and second are here and here. In order to avoid complaints snowballing over time, and to avoid the antagonism and defensiveness associated with investigation by exchange of template-driven correspondence, at least in some cases, a team of early responders gets on the phone to the parties to see what the complaint is really about, and what can be done about it quickly. When such communication is accompanied by a reassurance of the likelihood of a non-prosecution outcome involving no adverse publicity and no interference with the right to practice, no doubt much may be achieved.
I can see problems for lawyers in too ready banter with the early response team: making admissions without first checking in with their insurer, potentially prejudicing their cover; not understanding their non-entitlement, except under compulsion to divulge confidential information; not understanding their obligation to assert their client’s legal professional privilege in response to a non-client complaint; spilling their guts with undue vigour in the initial blush of indignation upon receiving a complaint. So too can I see the potential for complainants to be sweet-talked out of persisting with disciplinary allegations and everything being wrapped up in money talk, potentially leaving more or less unenforced the lower end of wrongful conduct, such as costs disclosure defaults.
Finally, it is quite clear that the Commissioner is into the mediation of disciplinary complaints, at least where there are concurrent civil complaints (i.e. professional negligence, and costs disputes). Furthermore, he has no difficulty with lawyers communicating directly with complainants in such circumstances; he told me himself.
- New Legal Services Commissioner to talk on his office’s new direction
- Legal Services Commissioner publishes annual report
- It’s ok for solicitors to try to resolve complaints directly with the complainants
- Withdrawing complaints under the Legal Profession Act, 2004
- Disciplinary costs insurance unavailable to solicitors, for now