Submitted (as a comment) by Amused
…our laws are based on the presumption of innocence unless guilt is proved. Guilt can only be proved upon both sides of the matter being heard and considered or upon a preponderance of proof being provided. That proof requires far more support than simply “I told you so”.
If you name a lawyer or any other professional, it has to be assumed, since it can never be proved (as to extent) that you have caused them damage. In any case, the type of definition covering the naming of a lawyer in something published is “libel” and libel is always actionable without proof of damage.
Then you get to the economic facts. For a lawyer to sue you costs them, usually, only filing fees and other disbursements. For you, it costs those disbursements plus legal fees. Also, as the matter has to go through a judicial or quasi-judicial process, the lawyer knows all the rules of procedure required by the court. On the other hand, if you act for yourself (as is your right) you don’t and you will make mistakes on simple matters of filing alone. The court has to take the view that, as these rules are codified, you are presumed to have read and to know them; including the lawyers’ scale of allowable fees. So the court is only really allowed to cut you a very limited amount of slack. Then, if you lose, you have to pay costs (yours and your opponents – which is only fair if you have launched a case and expensed them without legal grounds – or Heaven forbid, without any grounds at all, which can happen). You almost certainly will have to pay damages estimated on the losses your opponent has sustained.
So, it is not something to be lightly undertaken cost-wise. As I have said, there are some counsel who, disgusted with the way in which some attorneys practice law, will take these matters on as a service to their profession in general, if not necessarily for the complainant. However, you have to convince them that you have a viable case before they are prepared to risk their input, both financial and in terms of time, taking them on and, in effect (not that these Carriers of the Flame, as I call them, give a damn) risking the possible lack of cooperation from their fellow members of the legal profession that might arise. That lack of cooperation, if it occurs, would have a very detrimental effect on their ability to properly service their other clients. It takes a brave lawyer and a strong case.
The answer? Is there one? Yes! And it too is breathtaking in its simplicity.
The legal profession must start to EFFECTIVELY police its own. At the moment, while the mechanics of policing exists, it is a joke and never exercised. All that needs to be done is the establishment of a sort of ombudsman within the Bar Association the loyalty of which is to the consumer and not to the lawyers. And, of course, a court of appeal that is prepared to kick said ombudsman in the ass if it fails to do its job. Maybe the answer is for Government to establish a separate and distinct authority to deal with these complaints.
Sorry, David, the solutions are simple indeed, but so hard to achieve. But, you have made a start by putting the issue firmly in the public forum. Please do not let it fall from view – keep hammering it.
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