Clause 17

Legal Services Bill [Lords] – in a Public Bill Committee at 11:45 am on 19th June 2007.

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Offence to pretend to be entitled

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

I beg to move amendment No. 269, in clause 17, page 8, line 22, at end insert—

‘(4) All persons claiming to be entitled to carry on any activity which is a reserved legal activity shall have a duty to make clearly known to each client, at the beginning of their dealings with each other—

(a) their professional title and qualifications; and

(b) the most senior member of the firm to whom they are accountable.’.

As the Minister knows, I have trailed this amendment; it complements the clause that we are about to debate. It is a good clause in that it makes it clear that somebody who holds himself out as being entitled to act as a solicitor, even though he is not, is committing a criminal offence. If we are to have a reputable set of professions, it is important that we do not let people get away with pretending to be something that they are not. Although such cases might not be as publicly odious as those of the people whom we occasionally discover practising as doctors, gynaecologists and others when they are not, this is an important matter. People could be badly misled and lose a huge amount of money if they took legal advice from somebody who was incompetent and unqualified to give it.

The amendment is designed to make it a bit clearer to consumers who they will be dealing with when they go into the world of dealing with lawyers, who are the people regulated by the clause. It is therefore self-explanatory, although I do not pretend that it is perfectly drafted. I am keen that the Minister should be sympathetic to it and, in her usual considered way, take it away and think about how we might achieve that objective. I say that not because I have a theoretical obsession about the issue, but because I know that it is a matter of practical concern.

I know that some, if not many, people will have come to you, Mr. Cook, in your surgery or elsewhere, saying that they have been to see a solicitor or similar, yet when you have looked at their papers you have discovered that they have had no dealings or communication with anybody who is legally qualified. All the people with whom they have dealt have had lesser, or even no, qualifications; some might have been students or new trainees. I do not disparage the work that such people do, but I am keen that people should know with whom they are dealing.

There are examples of good practice and good conduct, and of solicitors who give good advice. However, we are not considering good solicitors. A reputable, long-standing south London firm with which I have dealt, as have my constituents and those who represent them, is Anthony Gold. It is committed to good legal work and community support. It has taken on new areas of work such as housing law and the cases of people who want to take their local authority to court, as well as personal injury and such things. It has a very good reputation. If one   goes to see it, one is contacted in writing when one’s engagement with it is confirmed. The person writing explains his role within the firm, names the principal to whom he is accountable and says what to do if one has a complaint. That is good practice and it is done by most firms. It should be done by all firms.

However, I can think of an immigration case that went badly wrong when one of my constituents went to a small firm and dealt with somebody whom he believed to be a qualified lawyer with competence in immigration and asylum matters. The person was not a qualified lawyer and, as I discovered when I inherited the case, had no competence. The Government rightly introduced a new system for regulating people who give immigration advice, which was welcome. An agency was set up to deal with it. I am sure the Minister understands my general point—we are trying to ensure that there is some onus.

It may be that the matter would be better governed by requiring the professional bodies, to which we will come in a minute, to place a duty on all the people who work for them. However, some people slip through the net by not belonging to any of those professional bodies. To take a ridiculous example, somebody who works for a very reputable firm—or a less reputable one—without being legally qualified in any way is the cleaner. It is ridiculous but it is not impossible that one day, a rush of blood might go to the head, somebody might come through the door and the cleaner, the last one left in the office, might decide to try their hand in giving legal advice. If they are creditable, who knows? The person might well leave thinking that they have been given good advice.

I can think of one example of somebody—I defended him many years ago—who was wonderful at persuading people that he was who he said he was. He went around to lots of establishments in London pretending that he came from the environmental health department. He was very good at lying. He would go to inspect a kebab shop or a Chinese takeaway, and on every occasion he would find a dead mouse or rat. That was not surprising, as he had just it put it there. Then, of course, he charged rather a large sum not to report it. He lived comfortably for a long time, commuting regularly every week from his family in Scotland to his job in London. [Interruption.]He was English; let me not malign the Scots. He had a girlfriend and a child in Scotland, so he would fly up on a Friday, fly down on a Monday and do the job.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

Not to my knowledge, although one hopes that everybody is capable of redemption, including in their voting habits. Eventually he got caught when he went to the same kebab shop twice and they recognised him coming around for the second time.

I exaggerate. It is a funny story, but it is a true story; it happened. There are serious concerns. I am keen that the Minister should tell us how she envisages that they will be addressed. They must be addressed, because some are still misled in the world of legal advice by people who they think are qualified and competent professionals when they are not.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I welcome the intention behind the amendment. A couple of weeks ago, a constituent was in my surgery who had been the victim of a gentleman  who presented himself as offering a legal service, when the advice in his letter was not worth the paper that it was written on. The constituent was frustrated in trying to seek some redress for her undermined claims. When she went to the police, they did not know what to do. Other clauses and regulations will hopefully deal with the matter in more detail, and we support that.

I welcome the general concern for client care. Client care and the code of conduct are a natural part of the day for every solicitor who gives advice. It is a natural part of the first letter to the client—those who are cynical might say as natural as asking for money on account. It is always there, without people thinking twice about it. It is also the case—it is particularly important when considering the clause’s merits—that such matters are explicit in the solicitors’ code of conduct. The code of conduct provides strict regulation in rule 2 about taking on clients. It is ingrained in the lives of every solicitor and designed to help both solicitors and clients to understand properly each other’s expectations and responsibilities, and explicitly to ensure that clients are given the information necessary to make appropriate decisions about whether and how they might wish to proceed.

Rule 2.02 of the code of conduct—it is worth putting it on record to see whether the situation merits such a clause—says explicitly:

“You must, both at the outset and, as necessary, during the course of the matter:

(a) agree an appropriate level of service;

(b) explain your responsibilities;

(c) explain the client’s responsibilities;

(d) ensure that the client is given, in writing, the name and status of the person dealing with the matter and the name of the person responsible for its overall supervision; and

(e) explain any limitations or conditions resulting from your relationship with a third party (for example a funder, fee sharer or introducer) which affect the steps you can take on the client’s behalf.”

The question is whether that needs to be explicit in the Bill. Given that the Bill seeks to extend the provision of legal services and to widen ownership, there is merit in careful consideration. My view, and that of my hon. Friends, is that we should avoid over-legislating and that such matters should be left to the regulators. However, if one were to include that in the Bill, one would have to question whether it should be limited to the two aspects contained within the clause and not incorporate all the elements within rule 2.02 on client care, which has served many solicitors well.

Photo of John Mann John Mann PPS (Rt Hon Richard Caborn, Minister of State), Department for Culture, Media & Sport 12:00 pm, 19th June 2007

I am not sure whether the amendment does what it intends to do. It is a probing amendment. If someone claims to be entitled to carry on a reserved legal activity, they could be claiming something which, in some of the examples, they should not be able to claim at all. There are two angles on which I would be interested to hear the Minister’s comments. The first concerns a solicitor who pretends to be the authorised solicitor of a trade union but is not. In the case of AMS Law and the miners compensation scheme, AMS Law added a UDM claims handling unit logo to the solicitor’s headed paper. In other words, it falsely gave the impression that it was a trade union’s in-house claims handling unit. Is such an example covered by the   clause? If so, who should regulate against that kind of pretence, which misleads the consumer? AMS Law misled a lot of people in my area and elsewhere.

My second angle uses another example of the miners compensation scheme. My constituents believed that a number of people were solicitors when they were not. I cite the example of Mr. Stuart Bell of Stuart Bell Associates of Worksop. Mr. Bell was not a solicitor and never had been a solicitor. He was allowed to represent individual miners and present cases to the Department of Trade and Industry, because he was acting under a High Court ruling which stated that everyone had the legal right to the equivalent of their day in court. Who should be responsible for dealing with that abuse? People could not seek a remedy from the Law Society because Mr. Bell is not a solicitor—they had to go to the civil courts. I suggest that Mr. Stuart Bell of Worksop is not the only example of someone who has taken on a claim as if they were a solicitor. Certainly all my constituents assumed that Mr. Bell was a solicitor. Should the responsibility of investigating, both under present measures and under the Bill, go to the legal profession and its regulatory bodies? I think that that would be a good opportunity for the legal profession to defend itself against those who purport, by illusion if not explicitly, to be part of that profession and leave the consumer with the invidious proposition of having to go to a solicitor in order to take legal action against a non-solicitor whom they presumed was a solicitor.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The hon. Member for Bassetlaw raises another interesting point. If someone is not conducting litigation but merely advising somebody and acting in their own person, that is not a reserved legal activity, so it would not fall under the Bill. Although this is a probing amendment, it is important because the client needs to know at the start of the process whom they are dealing with and under what circumstances. I urge the Minister to consider whether we should confirm more precisely that somebody is regulated by the Legal Services Board, whether they are part of an alternative business structure or of a different organisation, and that they fall inside a particular regulated line.

Another relevant issue is the factors that need to be considered on engagement. I accept that a client engagement letter refers to the rates, how much things might cost and so on. That is important, but should not certain things be included in the Bill? Obviously, I concur with my hon. Friend the Member for North Southwark and Bermondsey on such matters. In public family law, in particular, it is common practice for a firm of solicitors to work for both the local authority and the parents. It is not working on the same case, but one day, it works for the parents; the next day, it works for the local authority, and, the day after that, it works for the parents. I am not sure whether that is proper practice, although the Law Society says that it is.

Let us suppose, however, that the clients go to a firm of solicitors expecting it to fight their corner. Having lost their new-born baby, they find out in retrospect that the firm also works for the local authority. The clients should have been told before they started using the firm that it had two masters: themselves and the local authority. Whether that provision should be put into statute is an  interesting question. We have referred to conflicts of interest. We cannot ignore them, however inconvenient they are. The Law Society’s argument is that it would be difficult to find people without conflicts of interest to undertake such work. That is probably not the way in which we should approach matters, so I urge the Minister to consider the problem.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I agree absolutely that transparency is the key to maintaining consumer confidence. When consumers engage a firm of solicitors, they should expect the best advice that the firm can provide for the price that it charges. If they then find that the advice comes from someone else—hopefully, not the cleaner—that might undermine their confidence in it, and not surprisingly so. That does not necessarily mean that the advice is wrong; some firms of solicitors are staffed by a variety of qualified lawyers, some of whom will be “authorised persons”, using the Bill’s language, while some will not be solicitors, but will be authorised for other reasons, and will include legal executives, barristers and conveyancers. I do not want anyone to be under the impression that a particular authorised person is somehow second best; it is just who is appropriate in the circumstances.

It is possible, too, that non-authorised persons may provide reserved legal services direct to clients, but only under the supervision of authorised persons who still remain responsible for the provision of the service. Having said that, there is a lot of merit in the amendment tabled by the hon. Member for North Southwark and Bermondsey. I take on board what was said by the hon. Member for Enfield, Southgate and I want to explain why I shall take the amendment away and consider it. It is clearly in the consumer’s interest to be informed of the way in which their case is handled. Not only is that helpful to them, but it lets them know where they stand and what their rights are, all of which the Bill is supposed to be about. It is important, too, that the Bill makes it clear to the consumer what that particular solicitor or legal adviser can or cannot do so that there is less scope for misunderstanding.

However, there are a couple of small gaps in the amendment, the first of which concerns enforcement. It would be best to provide for that subject as part of the duty in the regulatory arrangements. As the hon. Member for Enfield, Southgate said, the codes of conduct already include something along those lines. We may want to consider redrafting the amendment so that the primary duty lies with the regulator rather than the individual adviser. In that way, the regulated people would have to comply with the duty and action could be taken if they did not do so. Secondly—although a minor point—the duty might not arise in full in all circumstances. Barristers in independent practice, for example, all have the same level of qualification. They are also practitioners, and not accountable to anyone in that sense, so we would have to consider how their code of conduct would apply in that situation.

Finally, an important feature is missing. Although the consumer could know the body to whom the adviser is accountable, the amendment does not go far enough because it does not say to whom the consumer can complain or what the complaints process is. Many codes of conduct contain a complaints procedure, so we need to take that into account, too. I am happy to  consider the amendment, but I urge the hon. Member for North Southwark and Bermondsey to withdraw it so that we can consider how we will incorporate it, taking into account all the points that have been raised.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Party Chair, Liberal Democrats

I am grateful for the contributions of my hon. Friend the Member for Birmingham, Yardley and of the hon. Members for Enfield, Southgate and for Bassetlaw, and for the Minister’s response. There is a problem, and the amendment was a first stab at trying to address it. I do not want to be over-prescriptive or over-regulatory—that was never my intention—but I am happy to seek to withdraw the amendment and work with the Minister and her officials to get it to fit comfortably in the Bill, the codes and other things. Some people never get beyond the first encounter, and the amendment is intended to deal with circumstances in which the outcome of someone’s relationship with a firm is decided by the person with whom they deal. The position of that person, their authority and their confidence entirely determine that relationship.

If people do not know whom they are dealing with and do not understand their background or skill, or if they understand it wrongly or are misled, that will entirely influence how they decide to proceed. For example, let us take the case cited by my hon. Friend the Member for Birmingham, Yardley. In family law cases that deal with difficult issues, a person might eventually summon the courage to take legal advice on how to take action to protect the interests of their child in a disputed case in which there are allegations of abuse or something similar. They see someone and come away thinking that they have received authoritative advice, when in fact the advice was provided by someone who had been there a week. That is the sort of thing that we need to ensure that people are clear about, and that is the nature of my concern. I am grateful for the Minister’s response, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.