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The Ombudsman may publish an Announcement when a professional body does not accept the recommendations she has set out in an Opinion. Any current Announcements will appear on this page.
Announcements
Friday, 1 August 2008
The Legal Services Ombudsman for England and Wales Section 34A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990
Failure of the Law Society of Scotland to comply with recommendations from the Legal Services Ombudsman for England and Wales arising out of Opinions of the Ombudsman in respect of the Law Society’s handling of two complaints.
Two complaints were referred to the Legal Services Ombudsman for England and Wales (the Ombudsman) by the Scottish Legal Services Ombudsman under provisions that exist in statute which allow them to undertake each other’s casework where there is a conflict of interest.
Complaint 1 – Factual Background
In April 2005 the Ombudsman issued an Opinion in respect of the Law Society of Scotland’s handling of a complaint about a firm of solicitors instructed with regard to a personal injury claim. The complaint was about lack of costs information, continuity, advice and guidance and particular difficulties over the abandonment of the case at the time of the proof.
The Ombudsman was not satisfied that the firm had demonstrated that they had provided a clear warning to the client that his insurance policy was unlikely to cover the defender’s costs if his case went against him or was lost for any reason; that they had enquired of him how he would fund the defender’s costs in such an eventuality or that they had carried out a cost/benefit analysis before allowing him to take the decision to proceed to proof. She recommended that the Law Society of Scotland reopen their file in order to allow the firm to address those issues.
After attempts to conciliate the matter failed, the Law Society of Scotland reopened their file but, on 1 March 2007, their Client Relations Committee decided not to uphold any aspect of the complaint. The matter was referred to the Ombudsman again.
The Ombudsman’s recommendations
The Ombudsman was not satisfied that the decisions of the Committee were reasonable. She recommended that the Law Society of Scotland reopen their file in order to consider whether the firm had complied with their obligation to communicate effectively the cost of abandonment of the case and to consider whether the advice they gave him regarding the possibility that his costs would exceed the limit of his insurance cover could be deemed to be adequate professional service, given its timing and the apparent lack of any indication of the extent of any possible liability or discussion as to how he would fund any shortfall.
The Ombudsman recommended also that the Law Society of Scotland ask the firm to demonstrate what advice they gave the client as to his liability for their fees after May 2002 in order to satisfy themselves that the service provided in respect of costs information was adequate.
The Law Society of Scotland’s reasons for not accepting the Ombudsman’s recommendation
The Law Society of Scotland said the Committee had had the benefit of extra evidence from the advocate dealing with the case and from a solicitor from the firm that the client had been advised of his liability for the defender’s costs at the meeting on 12 March 2003 when the decision was made to abandon. They said that the decision made was reasonable having regard to all the evidence and that there was no necessity to reconsider it.
The Law Society of Scotland said that the Committee was quite clear that the firm had carried out their appropriate function of adequately advising the client that his costs may exceed his insurance cover, albeit that they were not in a position to give him an exact figure as to those costs.
The Law Society of Scotland said that the Committee concluded that it was clear that the client had a liability for fees after May 2002 and that they did not consider it unreasonable for the firm to delay issuing a fee note whilst the complaint was being dealt with by the Law Society of Scotland.
The Law Society of Scotland declined to accept the Ombudsman’s recommendation that they reinvestigate the issues of concern she had highlighted in regard to the complaint about the firm.
Complaint 2 – Factual Background
On 31 July 2007, the Ombudsman issued an Opinion in respect of the Law Society of Scotland’s handling of a complaint about a firm of solicitors who acted in a matter before the courts. The complaint included claims that the firm had failed to follow instructions to advise the court of relevant issues and had failed to advise the client of contractual discrepancies.
A Reporter for the Law Society of Scotland prepared a report upholding the complaints of failure to follow instructions and failure to advise. A Solicitor Reporter prepared a second report upholding only the complaint of failure to follow instructions. The case was referred to a Client Relations Committee, which dismissed the complaint in its entirety.
The Ombudsman’s Recommendations
The Ombudsman recommended that the Law Society of Scotland reconsider its decision to dismiss the complaint of failure to follow instructions. She said that the Committee’s reasons for departing from the view of the Reporter and Solicitor Reporter were unclear. She also said that it was not apparent from the Committee’s decision whether they had considered all the evidence.
The Ombudsman also recommended that the Law Society of Scotland reconsider their decision to dismiss the complaint of failure to advise. She said that the Committee’s decision failed to demonstrate that they had given sufficient consideration to all the relevant issues, details of which the Ombudsman provided in her report.
The Law Society of Scotland’s reasons for not accepting the Ombudsman’s recommendations
The Law Society of Scotland said that the Client Relations Committee had reached decisions which were appropriate and reasonable in all the facts and circumstances of the case. They said that the complaint of failure to follow instructions was unfounded and the Ombudsman was referred back to the Committee’s minutes. With regard to the complaint of failure to advise, the Law Society of Scotland said that the Committee’s minutes had been clear and that the firm had not been instructed to act with regard to the matter in issue.
The Law Society of Scotland declined to accept the Ombudsman’s recommendation that they reinvestigate the issues of concern she had highlighted in regard to the complaint about the firm.
For further information please contact Rob Bartram, Legal Advisor to the Legal Services Ombudsman of England and Wales on 0161 830 5661.
The Legal Services Ombudsman for England and Wales oversees the handling of complaints about legal service providers by the professional bodies responsible for setting and maintaining standards within the profession.
The current Legal Services Ombudsman for England and Wales is Zahida Manzoor CBE who was appointed in 2003.
Failure of the Law Society of Scotland to comply with recommendations from the Legal Services Ombudsman for England and Wales arising out of Opinions of the Ombudsman in respect of the Law Society’s handling of two complaints.
Two complaints were referred to the Legal Services Ombudsman for England and Wales (the Ombudsman) by the Scottish Legal Services Ombudsman under provisions that exist in statute which allow them to undertake each other’s casework where there is a conflict of interest.
Complaint 1 – Factual Background
In April 2005 the Ombudsman issued an Opinion in respect of the Law Society of Scotland’s handling of a complaint about a firm of solicitors instructed with regard to a personal injury claim. The complaint was about lack of costs information, continuity, advice and guidance and particular difficulties over the abandonment of the case at the time of the proof.
The Ombudsman was not satisfied that the firm had demonstrated that they had provided a clear warning to the client that his insurance policy was unlikely to cover the defender’s costs if his case went against him or was lost for any reason; that they had enquired of him how he would fund the defender’s costs in such an eventuality or that they had carried out a cost/benefit analysis before allowing him to take the decision to proceed to proof. She recommended that the Law Society of Scotland reopen their file in order to allow the firm to address those issues.
After attempts to conciliate the matter failed, the Law Society of Scotland reopened their file but, on 1 March 2007, their Client Relations Committee decided not to uphold any aspect of the complaint. The matter was referred to the Ombudsman again.
The Ombudsman’s recommendations
The Ombudsman was not satisfied that the decisions of the Committee were reasonable. She recommended that the Law Society of Scotland reopen their file in order to consider whether the firm had complied with their obligation to communicate effectively the cost of abandonment of the case and to consider whether the advice they gave him regarding the possibility that his costs would exceed the limit of his insurance cover could be deemed to be adequate professional service, given its timing and the apparent lack of any indication of the extent of any possible liability or discussion as to how he would fund any shortfall.
The Ombudsman recommended also that the Law Society of Scotland ask the firm to demonstrate what advice they gave the client as to his liability for their fees after May 2002 in order to satisfy themselves that the service provided in respect of costs information was adequate.
The Law Society of Scotland’s reasons for not accepting the Ombudsman’s recommendation
The Law Society of Scotland said the Committee had had the benefit of extra evidence from the advocate dealing with the case and from a solicitor from the firm that the client had been advised of his liability for the defender’s costs at the meeting on 12 March 2003 when the decision was made to abandon. They said that the decision made was reasonable having regard to all the evidence and that there was no necessity to reconsider it.
The Law Society of Scotland said that the Committee was quite clear that the firm had carried out their appropriate function of adequately advising the client that his costs may exceed his insurance cover, albeit that they were not in a position to give him an exact figure as to those costs.
The Law Society of Scotland said that the Committee concluded that it was clear that the client had a liability for fees after May 2002 and that they did not consider it unreasonable for the firm to delay issuing a fee note whilst the complaint was being dealt with by the Law Society of Scotland.
The Law Society of Scotland declined to accept the Ombudsman’s recommendation that they reinvestigate the issues of concern she had highlighted in regard to the complaint about the firm.
Complaint 2 – Factual Background
On 31 July 2007, the Ombudsman issued an Opinion in respect of the Law Society of Scotland’s handling of a complaint about a firm of solicitors who acted in a matter before the courts. The complaint included claims that the firm had failed to follow instructions to advise the court of relevant issues and had failed to advise the client of contractual discrepancies.
A Reporter for the Law Society of Scotland prepared a report upholding the complaints of failure to follow instructions and failure to advise. A Solicitor Reporter prepared a second report upholding only the complaint of failure to follow instructions. The case was referred to a Client Relations Committee, which dismissed the complaint in its entirety.
The Ombudsman’s Recommendations
The Ombudsman recommended that the Law Society of Scotland reconsider its decision to dismiss the complaint of failure to follow instructions. She said that the Committee’s reasons for departing from the view of the Reporter and Solicitor Reporter were unclear. She also said that it was not apparent from the Committee’s decision whether they had considered all the evidence.
The Ombudsman also recommended that the Law Society of Scotland reconsider their decision to dismiss the complaint of failure to advise. She said that the Committee’s decision failed to demonstrate that they had given sufficient consideration to all the relevant issues, details of which the Ombudsman provided in her report.
The Law Society of Scotland’s reasons for not accepting the Ombudsman’s recommendations
The Law Society of Scotland said that the Client Relations Committee had reached decisions which were appropriate and reasonable in all the facts and circumstances of the case. They said that the complaint of failure to follow instructions was unfounded and the Ombudsman was referred back to the Committee’s minutes. With regard to the complaint of failure to advise, the Law Society of Scotland said that the Committee’s minutes had been clear and that the firm had not been instructed to act with regard to the matter in issue.
The Law Society of Scotland declined to accept the Ombudsman’s recommendation that they reinvestigate the issues of concern she had highlighted in regard to the complaint about the firm.
For further information please contact Rob Bartram, Legal Advisor to the Legal Services Ombudsman of England and Wales on 0161 830 5661.
The Legal Services Ombudsman for England and Wales oversees the handling of complaints about legal service providers by the professional bodies responsible for setting and maintaining standards within the profession.
The current Legal Services Ombudsman for England and Wales is Zahida Manzoor CBE who was appointed in 2003.
Wednesday, 12 December 2007
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Source: http://www.slso.org.uk/notices.shtml