So far studies on the matter of complaints against barristers have been limited to the collection of statistics with little suggestions on the improvement of the complaint handling mechanism.
Without any studies as to how complaints against barristers can be handled; I propose to look into the effect of publishing complaints against barristers as a means to handle the complaints and raise the current standard of our legal services.
The very important decision to publish information about complaints levelled against barristers will be met with mixed opinion. Some would see the merits in publishing such information; however the majority is likely to be unhappy about such publication.
For those in favour of publishing the said complaints, they would tend to feel that:
- Barristers who are aware that they are offering a service to their clients would be happy to be held accountable for any mistakes or errors that occur;
- Publishing information about the complaints would bring greater transparency to the legal profession and possibly demystify the work undertaken by the barristers;
- Publication could improve the quality of service provided by barristers as each case would act as clarification about service issues. Barristers would feel it would also be advantageous to read how chambers/firms and sole practitioners improve their procedures to guard against possible future complaints; and
- Publishing would enable barristers to know more about their competitors.
Those who would be less happy about the publishing of information relating to complaints would be concerned about:
- Complaints damaging the reputation of the firms/chambers/sole practitioners , publication of information that is currently not available to the public, together with the name of the law firm or chambers would affect public opinion of the barrister;
- The opportunity for ‘problem clients’ to purposefully damage the reputation of chambers, firms or sole practitioners. A number of barristers will take the view that the publication of complaints data as issuing a ‘call to arms’ to problem clients who might manufacture complaints in order to tarnish the reputation of certain barristers;
- The barristers would not have a ‘right to reply’. Barristers would be concerned about the non-involvement of the barristers in the publication of the complaints;
- Publication of information about complaints could be open to misinterpretation. Barristers would be concerned that however the information is published, it would not communicate the true complexity of the law and therefore allow the reader to make their subjective interpretation of the facts;
- Publishing the said complaints would have a particularly negative impact on sole practitioners. Although practicing barristers would be concerned about publication, the majority of barristers would recognise the potential impact on sole practitioners due to their reduced anonymity and reliance on a smaller client base. Larger practices would potentially be better able to deal with complaints, hence less likely to be worried about the impact of damaging complaints;
- Clients do not use formal and/or official information to select their barrister. Clients most often select barristers based on word of mouth or reputation. Therefore the argument that the publication would help clients to make more informed decisions about legal service providers would be void;
- Data protection issues. Client anonymity would be cited as a concern for barristers, especially when a published complaint deals with a sensitive matter such as divorce or probate. The level of information and detail shared in the publication should ensure that the identity of the clients is kept protected at all times;
- Some Chambers, firms or sole practitioners could become target driven, concentrating on improving their place on the complaints’ ‘league table’. However, would the complaints information be indicative of the quality of service?
- Some, possibly more cynical barristers would see the publication of complaints as an attempt to generate publicity and validate the existence of the new organisation rather than having a genuine vested interest in the legal services sector; and
- The use of complaints’ information by the media would also be a source of worry for most barristers whereby the media would build a story around dissatisfied clients.
If the complaints were to be published to the public at large, I think the following should be born in mind:
- The context of the complaint, so as to enable the reader to make a fair and impartial assessment of the complaint;
- The size of the law firms, chambers and/or the practical experience of the barristers therein;
- The response of the barristers as to how their procedures and/or policies have changed in response to the complaint. This would alleviate the fears of the clients;
- The role of the client in the case. In order to bring balance to the presentation of the complaint, the conduct of the client as well as the barristers should be included in the published information; and
- Finally, the explanation of the remedy used to understand the seriousness of the complaint.
In the past, complaints as to fees of barristers have been a rather good source of revenue to the press.
Those publications have gone to ‘prove’ the everyday Joe’s assumption; that barristers do charge enormous amounts of money for their services. However, those publications do not provide a complete picture as they do not allow the barristers to justify their fees. It is often left to the barrister to intervene to do so. I think part of the solution would be for the barristers to provide a breakdown of the fees so that the client can have a clear idea where his or her money is going.
On a wider spectrum, I think that an independent committee should be set up by the Mauritius Bar Association so as to provide guidelines to barristers on how to receive, manage and remedy to the complaints. Ultimately that committee should be referred to as a measure of last resort; where the remedy proposed by the barrister falls short of the prejudice suffered.