France: no fixed view on publication
The three main professional bodies have all set out their stalls against lawyers being “named and shamed” if found guilty by the Legal Ombudsman (LeO) of providing an inadequate service.
The Bar Council has this week joined the Law Society and Institute of Legal Executives (ILEX) in criticising the idea, saying its members should only be identified if they requested it. By contrast, the Legal Services Consumer Panel has strongly backed the suggestion.
While “barristers are not afraid of being told off in public” by judges who are often “quick to complain”, they should not be named in LeO decisions for two reasons, the Bar argues in its response to a LeO consultation. First, because fellow lawyers – from whom barristers receive work – “are dutiful readers of law reports”, any LeO finding would likely lead to career damage. Secondly, the prominence of barristers in the legal process leaves them “peculiarly exposed to complaints from unhappy lay clients”.
The Bar strongly supports identifying barristers found guilty of professional misconduct, it said. But since cases determined by LeO are “likely normally to be complaints of some kind of shoddy work or lack of sensitivity”, the balance should come down in favour of individual privacy rather than transparency in the work of a public body.
Other factors against a policy of naming include that it would risk failing to comply with the statutory ban on publishing details that could identify a complainant and relatedly, that a dishonest client could make a career-threatening allegation under the cloak of anonymity. It also creates pressures on lawyer “to settle baseless complaints”, the Bar warned.
In their responses, both ILEX and the Law Society highlighted what they said was the disproportionate impact that naming and shaming would have on ethnic minority and sole practitioners, who often work in “emotional” areas of law, such as family and immigration and asylum work, that tend to attract more complaints.
On the question of the impact on minority groups, the Bar said it would be another factor discouraging barristers from developing practices in the fields of criminal and family work, which are already made less attractive by low legal aid fees.
All three representative bodies strongly argue that where a complaint is dismissed by LeO, a policy of not naming the lawyers involved is necessary to avoid the “no smoke without fire” factor in the minds of the public.
If the LeO did go ahead with a naming policy, the identification of lawyers should be removed after a short time, preferably two years, the Bar said, after which any reports of the decision should be anonymised.
Chief ombudsman Adam Sampson and Elizabeth France, chairwoman of LeO’s board, have both emphasised that they had no fixed view on publication prior to the consultation.
It must follow that if a lawyer is named and shamed for failing to resist a complaint, a complainant should be named and shamed for losing too. The Bar is already keeping informal lists of vexatious and dangerous complainants – it would be easy to publish them if this latest stick is used to beat the Bar, whether the LSB do so or not. The Bar is much stronger than people believe and our patience is wearing very thin. We are hard working people in the front line dealing day to day with clients in extreme situations. Please leave us to get on with the job. Marc Beaumont, (specialist in defending lawyers in disciplinary cases)