LSRA criticises solicitor delays on undertakings

The Legal Services Regulatory Authority (LSRA) has published the first of its bi-annual reports on complaints against solicitors and barristers, which shows that it received 636 complaints in the first five months of the new independent complaints-handling regime.

The LSRA began receiving and investigating complaints against legal practitioners on 7 October 2019. The report contains statistical data from that date to 6 March 2020.

Chief executive Dr Brian J Doherty says in his foreword: “We have been busy. Consistent with our expectations, the volume of both queries and complaints has been significant.”

Absent

Poor, infrequent or absent communication has driven most legal complaints, Doherty says in the report.

“Many of the complaints made to us, to date, may well have been avoided altogether had correspondence from clients been replied to in a timely fashion.

“There is an obligation on legal practitioners to ensure that their clients are well informed as to the risks involved in legal proceedings, the time that the proceedings will take, and the cost of those proceedings.”

He also says that careful compliance with new obligations, which require legal practitioners to clearly set out the legal costs that will be incurred in relation to any matter, will lead to a reduction in complaints of this nature.

Volume of complaints

With regard to inadequate services, a notable volume of complaints related to probate, with 28% concerned with the administration of estates.

The section includes allegations that solicitors have

• not prioritised this work,
• have drafted wills poorly,
• and have been involved in potentially quite complex matters, without the necessary expertise.

In some cases, firms have inappropriately delegated this work to staff that are not sufficiently experienced.

Allegations

Allegations that estate accounts have been delayed and/or were inadequate have also, frequently, been made.

However, the LSRA report says that, while it may be understandable that complainants who are will-beneficiaries may assume that the administering solicitor is the person with whom they should communicate, in fact, this responsibility lies with the executor(s).

This is often an issue with large families, some of whom might be resident abroad, the report says.

The LSRA report is also critical about delays with legally binding undertakings, which account for 11% of the total complaints made.

Sale proceeds

The most common example is an undertaking given by the seller’s solicitor to pay off their client’s mortgage from the sale proceeds. Failure to comply with an undertaking is a professional conduct issue.

The LSRA is concerned at the length of time some undertakings are alleged to have been outstanding. Many are over a decade old, so there is a risk that the undertaking may not now be complied with.

Delay

Delay on the part of some financial institutions in making these complaints is one issue, but the fact that solicitors may have left their clients’ purchases unregistered for so long is something that still has to be addressed, the report says.

Barristers have made complaints to the LSRA where they allege that they have not received payment for work they have undertaken, and where they believe that payment should have been made by this point.

Solicitors should be aware that such complaints can be made to, and dealt with, by the LSRA should the complaint meet the admissibility criteria. So far, a number of these complaints have been resolved at the pre-admissibility stage.

Counsel

Solicitors, of course, have a responsibility to ensure that the barristers they instruct are paid, but should also ensure that they communicate with counsel as soon as possible, should any issues arise, rather than simply leaving fee notes unpaid.

Of the 636 complaints, 633 related to solicitors, and three related to barristers.

A total of 342 complaints (54%) alleged misconduct, with 238 (37%) of complaints relating to alleged inadequate services, and 56 (9%) relating to excessive costs (overcharging).

A total of 187 complaints have been closed, while the balance of 449 complaints remain under consideration by the LSRA. The complaints and resolutions unit received a total of 1,884 phone calls and emails requesting information and/or complaint forms.

Among the areas of legal services complained about were wills and probate, litigation, conveyancing, and family law.

Criminal activity

A total of 14 complaints involved issues relating to alleged criminal activity. The majority of these include allegations made against what is suspected to be a bogus law firm. These were referred to An Garda Síochána.

The Legal Services Regulation Act 2015 places informal complaints resolution at the heart of the new independent regime, and the LSRA’s qualified staff are affiliated to the Mediators’ Institute of Ireland.

A total of 36 complaints were resolved informally at what is known as the pre-admissibility stage – that is before the LSRA makes a determination that a complaint is admissible.

Theme

An overarching theme from the complaints received is the need for legal practitioners to communicate with their clients in a clear and timely fashion.

The report highlights emerging themes in complaints, and identifies areas where it may be possible to learn lessons and to raise standards.

The report also includes anonymised case studies, which are aimed at helping both consumers and legal-service providers to learn from the LSRA’s examination of individual complaints.

Function

The Legal Services Regulation Act 2015 requires the LSRA to publish a report on the operation of its complaints function every six months. The LSRA says it is keen to ensure that these bi-annual reports are useful to both the public and to legal practitioners.

The second complaints report for 2020 will be published in October.