In the Canadian legal press, England and Wales is often presented as something of a regulatory boogieman. We are continually warned that, if we don’t shape up, we will lose the ability to self-regulate, just like those poor English lawyers! An equally strong undercurrent of anxiety percolates around English forays into non-lawyer ownership of law firms. References to “floodgates” and “earthquakes” abound; our calm Canadian sensibilities are aflutter. For a population that so often asserts itself as “not-American”, it seems like a new rallying cry has taken hold for many in the legal profession: anything but England!
Often lost in the midst of all this hand-wringing about English shifts away from self-regulation and towards alternative business structures are some of the other, more subtle regulatory changes that have taken place in England in recent years. Among the most interesting of these oft-overlooked developments is the new “ombudsman scheme” introduced by the Legal Services Act, 2007.
The Legal Ombudsman for England and Wales operates as an independent body for receiving and resolving client complaints against lawyers. The Legal Ombudsman works to achieve informal resolution of complaints by facilitating a mutually agreeable solution between the parties, but also can make formal directions against lawyers where agreement cannot be reached. Among other things, a lawyer may be directed to:
make an apology to the client; do more work to correct or mitigate an error or omission; refund or reduce legal fees; or pay compensation for losses suffered or for inconvenience or distress experienced by the client.
In terms of how this plays out in practice, the Legal Ombudsman’s annual report for 2011/2012 (its first complete year of operation) indicates, among other things, that:
- it received around 75,000 inquiries, which translated into around 8,400 cases for investigation;
- 7,455 cases were resolved during the year;
- just over 50% of all complaints were resolved within three months and over 80% were resolved within six months;
- 42% of cases were able to be resolved on an informal basis;
- although the Legal Ombudsman can award up to up to £50,000 in compensation, most compensation awarded is significantly lower (in the final quarter of 2011/2012, the most commonly ordered amount of compensation was £299 or less);
- cases were resolved at a “unit cost” of £2,281 (i.e. as determined by dividing the total cost of operating by the number of cases completed); and
- 72% of clients and lawyers who had used the service said that they would speak highly or neutrally about the Legal Ombudsman.
The speed and efficiency with which the English Legal Ombudsman operates is remarkable, as is the apparent lawyer and client satisfaction with its operations. When these successes are coupled with the breadth of relief available to clients under this scheme – ranging from apologies to redone work product to financial compensation – one sees a model of complaints resolution that seems a lot more limber and meaningful than what is currently available to Canadian clients: either pursuing a civil claim in the courts or making a complaint to the relevant law society. For many clients, civil claims are disproportionately expensive to pursue in relation to the losses that they have suffered at the hands of their former lawyers. While making a complaint to a law society does not hold the same high price tag, disciplinary processes are focused on questions of if and how a lawyer has misbehaved and what sanctions should be imposed on him or her rather than on providing redress to aggrieved clients.
The English Legal Ombudsman model overcomes these limitations by providing an additional and alternative mode of recourse to clients where more “minor” claims of lawyer misconduct can be addressed quickly, inexpensively and in a manner that focuses on providing meaningful remedies.
For example, among the cases summarized on the Legal Ombudsman website is a case of a client who had approached a law firm to defend a claim being made against her deceased husband’s estate. She had been advised that all the work would cost no more than £1,000, but then was told at a meeting the next day that costs to date had been £750, and that the meeting would cost £350. The client complained, saying that the firm had not given her sufficient information about costs. The case summary reports the Legal Ombudsman decision as follows:
We decided that the firm’s estimate of £1,000 was unrealistic because they knew that the work that they had done before the meeting had pushed their costs past that level. In addition, they hadn’t made Mrs G aware that they had already incurred those costs before the meeting. We therefore decided that the firm should write off £600 of their bill.
This would seem to be a clear example of the type of case well-suited to the quick and less formal dispute resolution process provided by the Legal Ombudsman. It is also probably similar to many complaints that Canadian clients have against their lawyers, but for which they find it difficult to achieve recourse either before the courts or through law societies.
So, should Canada follow the English lead and adopt a similar ombudsman scheme here? Alice Woolley has already considered this question elsewhere and has pointed out that the fact that the Canadian legal profession is provincially regulated gives rise to serious cost and practical issues: a number of provinces and territories simply do not seem to have sufficient lawyer populations to justify putting an entirely new regulatory body into place to operate alongside the courts and the law societies. But, as Woolley acknowledges, that doesn’t mean that the Legal Ombudsman model doesn’t provide any insight on how we might improve lawyer regulation in Canada. She suggests, among other things, that the dispute resolution function of the law societies be separated into a distinct regulatory entity that could both adjudicate disciplinary cases and mediate client disputes in a similar fashion to the English Legal Ombudsman model.
Woolley’s proposal should be seriously considered. At the very least, even if Canadian jurisdictions do not undertake this sort of structural reform, we ought to start looking at what steps might be taken within existing systems to improve Canadian clients’ access to meaningful resolutions when they have problems with their lawyers. Programs like the Law Society of British Columbia’s Fee Mediation Program which offers “a free, informal process for dealing with fee disputes quickly and efficiently without having to go to court” would seem to be a positive start. Additional innovation is warranted and needed. Clients need more affordable and meaningful ways to seek redress when they have problems with lawyers.
As the English Legal Ombudsman office continues to operate and evolve, Canadians should be watching with a close and curious eye. Instead of retreating to a protective “anything but England” stance, embracing an inquisitive “what about England” attitude is likely to get us further. Who knows what lessons we might draw for improving our responsiveness to client concerns and complaints?