494 / 736
concern about his ability to pay or the number of un
settled debts recorded against him. It is probably too
much to expect that a system for the striking out of
unmeritorious claims should be adopted
immediately.
But the new system will contain within it the seeds of
growth towards a more elective approach to the use of
state machinery for the enforcement of private debts.
The new Northern Ireland scheme retains the final
sanction of
imprisonment for a contemptuous refusal
to pay or co-operate with the enforcement office.
It is, however,
the way
in which
the system
is
operated which is of crucial importance in this context,
not the legal form under which the ultimate sanction
is
imposed or
threatened. There
is a need
to
lend
credibility to the legal obligation to pay, and to remind
the debtor that the system means business. But debt
is also a social problem. The debtor often needs help
in organising his affairs. An enforcement office with
general control over all the debtor's legal obligations
will clearly be in a better position for this purpose than
any
judge,
registrar or bailiff under
the
existing
fragmented system.
—(The New Law Journal, 19 March, 197Q)
COMPLAINTS AGAINST LAWYERS
The cause and the remedies
"-ompted by a suggestion from Mr. Ben Whitaker,
M.P., Justice set up a committee, under the chairman
ship of Mr. Geoffrey Garrett, to consider "the question
whether complaints against members of the legal pro
fession should be investigated by or with the assistance
of persons other than lawyers." For
the purpose of
considering that question, the committee also assessed
the incidence of complaints, their subject matter and
the adequacy of the present machinery for investing
them, under the aegis of the Bar Council and the Council
of
the Law Society. The committee's
report, now
published,* considers all these matters in great detail, in
the light of the evidence it received from various sources
The following are
its general conclusions.
A substantial number of complaints are made each
year against members of
the
legal profession—4,000-
5,000
to
the Law Society alone—and "a significant
number of complainants are left unsatisfied that their
complaints have been fully or properly investigated.
"We believe that to a great extent this is due. in the
case of solicitors, to the sheer inability of the available
staff and resources of the Law Society to deal with the
volume of cases received by them." In some areas (e.g.
Birmingham)
the
local
law society has
instituted a
voluntary system which has helped
to alleviate
the
situation.
A "very high proportion" of complaints originate in
or involve a "failure
to communicate." This applies
both to complaints about a solicitor's conduct and to
complaints that the original complaint has not been
properly
investigated. Dissatisfaction
is
a
"state of
mind" and often "prevents a clear statement of its own
cause;" but the committee were compelled to conclude
from their enquiries that "most dissatisfied complainants
make two main criticisms—first a failure to keep them
fully informed of the progress of the investigation and
secondly a failure to provide an explanation for the
.
.
.
rejection of their complaint." There may be simply
insufficient
information or
the use of unintelligible
language;
there may be delay or failure
to answer
enquiries, or
lack of understanding or
interest- The
committee believe that "the profession does not always
sufficiently
realise
that
its
services
are
no
longer
rendered mainlv to those who are accustomed to consult
ing [lawyers] on business or family matters" or, on the
other hand,
to
those "who,
through
ignorance, will
accept the handling of their affairs without question."
A new kind of client consults a solicitor, not in order "to
give him instructions." but in order to be told how to
deal with a particular siuation; he may not understand
the need for many steps and requirements which are
commonplace to lawyers, and is "entitled to a proper
explanation as to what has to be and has been done,
and failing it will blame the lawyer concerned and
possibly the whole profession."
All lawyers, and particularly solicitors, should there
fore accept it as "as positive and normal duty to take
adequate steps
to ensure that the lay client is kept
informed;" what is "adequate" will vary widely from
case to case, but, in general, "the client should always
be made aware of what is being done and wh" what
has to be done and when, and roughly what liability
for costs
[will]
be
incurred. .
.
Persistent or gross
failure should merit serious treatment and, at the least,
some kind of reprimand." This may be the Law Societv's
practice now, but the committee feel "the standard
should be raised."
What is suggested, it may be objected, will put a
greater burden on the practitioner, but "the proper
fulfilment of
the
relationship of
lawyer and client
demands adequate communication."
In practice
the
extra effort required may well in the long run save
the solicitor a great deal of work and expense by
obviating
complaints,
for
it was
evident
to
the
committee
that "a hieh proportion of complaints .
.
.
start in an atmosphere of confusion, misunderstanding
and insufficient factual details." This was confirmed by
the professional bodies and is inevitable where proper
communication is lacking or the problems involved un
familiar to the client and in view of the complexity of
the law itself.
In a lawyer's mind, the presentation of a complaint
is a legal process demanding precision, order and some
formality; to the layman this is not so. No special pro
cess
or
form
is
officially
required
for
lodging
a
complaint, so
that a complainant frequently presents
his case badly and the effective and expeditious disoosal
of it is seriously hampered. The available time of th_e
Law Society's staff is so heavily engaged in investigating
complaints and enquiries relating to solicitors' conduct
that complex cases cannot be properly dealt with and
badly presented complaints
tend to be
rejected
too
readily. It is essential, the committee believe, to use the
voluntary services of members of the profession on a
broader basis for the preliminary sifting and untangling
of the confused situation from which complaints usually
arise :
"The profession owe
it
to
the public
to be
willing to assist in
this way and it is a debt which
should not be left merely to the few." Hence the new
procedure outlined
(infra), whose central feature
is
a preliminary process directed
to eliminating wholly
unjustified complaints and to the withdrawal of others
through a conciliation process, so that only the more
substantial complaints are brought before the official
bodies or directed into civil actions where appropriate..
The committee recognised that only
lawyers could
effectively
and
speedilv
undertake
the preliminary
investigations, but they accepted also the need "to meet
the criticism that lawyers are acting as judges in their
own cause" and
that
laymen had
therefore
to be
introduced into the system. A complaint which reached
the stage of official examination must be
treated as
involving a possible
injustice and also
as having a
serious potential effect on the profession's public renute;
"every complainant hould feel that he has been justly
treated after a fair and unpredjudiced hearing." A "verv
common complaint" has been that no solicitor would
take up a complainant's case against another solicitor,
particularly in the same locality : "If the image of the
40