A luxury the profession can no longer afford

Elizabeth Davidson asks what the future holds for the OSS and if it will be forced to become independent from the Law Society.

The Office for the Supervision of Solicitors (OSS) could face radical change if the Government steps up its drive to improve value for money for legal services.

The Lord Chancellor, Lord Irvine, has said many times since the election that the public deserves value for money when pursuing justice.

The OSS has not been conspicuous for its efficiency. Every solicitor pays one third of his u430 practising certificate fee to the OSS, which swallows u17m-worth of Law Society money every year. As the OSS deals with about 30,000 complaints a year, that works out at almost u600 per complaint.

The OSS has also been swamped by a backlog of 5,000 case files, as revealed by The Lawyer last week. And in the previous week, the OSS released first-quarter results showing that it had failed to meet most of the efficiency targets it had set itself.

With the number of complaints to the OSS increasing by 30 per cent this year, it is not surprising that many people are questioning the organisation's ability to cope.

Many critics – including consumer groups, solicitors, MPs and clients – have also suggested that the Law Society's role of regulator and trade union is a conflict of interest.

These are radical times for the legal profession, with the Government restructuring the landscape of legal services. Is it time the OSS was rethought, scrapped, replaced, or made independent?

Law Society spokesman David McNeill told The Lawyer that the OSS would come under scrutiny early next year, in the second phase of the Law Society's internal review.

Law Society vice-president Robert Sayer says he believes self-regulation is a “crazy mess, past its sell-by-date” and no longer valid from a consumer point of view.

Sayer says: “It is the nature of the job – not who does it – that is important. There should be one regulator for all legal services. Everyone would be licensed by the same body and would operate under the same rules.”

Sayer adds that about a third of complaints made to the OSS are filed by rival solicitors, and that this practice reached epidemic proportions in the notoriously cut-throat criminal courts of Liverpool several years ago.

He suggests that a small charge of about u10 to lodge a claim would discourage dubious complaints.

Another option is to make the OSS an independent body, charging fees to solicitors for handling complaints. However, this might give the OSS an incentive to unnecessarily draw out investigations.

The OSS could also be given increased disciplinary powers, as opposed to the current situation where serious complaints are referred to the Solicitors Disciplinary Tribunal (SDT), governed by the Lord Chancellor's Department (LCD).

This would resolve the existing situation, where the SDT occasionally declines to strike off solicitors with criminal convictions, so forcing the Law Society to continue to issue them with practising certificates.

Whatever the scenario, the Government looks likely to act soon. The LCD has been keeping an eye on the matter. Earlier this year Labour MP Gerry Sutcliffe presented LCD minister of state Geoff Hoon with a file of case studies detailing the “horrendous” experiences of those who had complained to the OSS.

Hoon replied in July that it was “premature” to intervene in the workings of the OSS, but added that he had a “keen interest” in the issue and would be following events.

The disasters that have beset the OSS are not all man-made. In April, flooding put the ground floor of its Leamington Spa HQ under four feet of water, destroying 1,000-2,000 files and delaying the installation of its new Regional Office Authorisation Device computer system.

Nevertheless, the OSS cannot blame everything on the floods.

That solicitors' clients have for too long had a raw deal is evident in the following example. One car crash victim told The Lawyer that she submitted her complaint to the OSS four years ago, received an acknowledgement eight months after the original submission, and has still not had the matter resolved.

When she phoned last week, the OSS blamed the delay on the floods.

Calls for an end to self-regulation are not new. In June, the Fabian Society called for the creation of an independent regulator staffed by a majority of lay people, with the Law Society becoming a purely representative body.

The National Consumer Council's head of legal policy, Marlene Winfield, has repeatedly called for an independent OSS, and told The Lawyer this month: “Law Society rules are either not tough, or not specific enough.”

The Consumers' Association (CA) issued a report this month calling on Trade and Industry Secretary Peter Mandelson to review the way all professions are regulated, and singling out the Law Society as engendering public “mistrust”.

The CA report, Leave it to the professionals? Professional Regulation in the 21st Century, argues: “Self-regulation can only be acceptable if it is clearly seen as there to protect consumers, rather than promoting the interests of the profession.”

Lord Irvine's Access to Justice Bill proposes that law centres and advice workers should play a greater role in providing legal services, and that a community legal service should be introduced.

Multi-disciplinary partnerships, on-line legal services and greater rights of audience for solicitors are all on the cards and point to a future where the public will turn to a wide range of advisers for the solution to their legal problems.

As the legal profession comes under scrutiny and legislative change diversifies the provision of legal services, self-regulation may be a luxury the profession can no longer afford. An independent regulator monitoring all legal services, might go some way towards alleviating the scepticism many members of the public feel about the profession.