Tuesday, June 24, 2008

Rough Justice for clients as new complaints commission refuses to investigate cases mishandled by Law Society

Amazingly or not, the work of watering down the intentions of the Legal Profession & Legal Aid Act (2007) goes on.

The latest salvo fired by the legal profession against clients takes the form of rigid conditions imposed by the new Scottish Legal Complaints Commission, itself now mostly staffed by employees of the Law Society of Scotland who have transferred over to the new 'independent' regulator .. which has now definitely lost the tag of 'independence' by any measure of the word.

As reporter in last week’s article but now confirmed, the Scottish Legal Complaints Commission has now categorically stated that it will refuse to handle any complaints regarding any legal work instructed prior to 1st October 2008, the date the new Scottish Legal Complaints Commission begins its work as regulator of 'service' complaints against Scotland's 10,500 solicitors.

This may spell disaster for clients whose complaints are now caught in this tricky period, where it is rumoured, the Law Society are binning complaints against lawyers at an alarming rate before the new Commission takes effect, dishing out infinite measures of 'rough justice' to clients who have fell victim to crooked members of the legal profession.

The SLCC has also decided, after apparently receiving 'counsel's opinion' on complaints handling, that it will refuse to examine historical cases of complaint mishandled by the Law Society of Scotland. A small reminder to readers that ‘Counsel’ would of course, be a member of the Law Society of Scotland ! – so it’s hardly surprising the Law Society would want its old mishandled cases re-examined by the new complaints body.

Being unable to examine cases of the past, may not be such a bad thing though, as the SLCC itself is staffed by many members of the Law Society of Scotland who have performed questionably on complaints against solicitors in the past - and I doubt they would be so willing to reexamine their own work and find against how poorly they had treated clients beforehand while working at the Law Society.

The Law Society of Scotland are of course, very happy about these two policy decisions. It was the Law Society who asked for it, and they have got it. That shouldn't surprise anyone, it was always the goal of the Law Society to ensure the new Commission was 'brought to heal' like an errant puppy, and it has certainly achieved that by populating the new Commission with its staff and lay committee members.

After all, the legal profession is to pay for the new Complaints Commission, so they will definitely want a say in how that money is spent, while ensuring continued control of the regulatory process via former staff from the Law Society who will no doubt continue in the vein they have become accustomed to.

Jane Irvine, the new Chairman of the SLCC confirmed in a statement the Scottish Legal Complaints Commission won't be looking into complaints prior to work instructed before the first of October 2008.

Jane Irvine : "The simple fact is the SLCC's powers to award redress, particularly compensation, would be as limited as those of the Law Society if we re-opened old cases. We wished therefore to avoid re-opening old cases where we could have little effect and instead would probably simply inconvenience parties by taking them through our investigation system. The SLCC will therefore focus on work instructed after 1-10-08"

I have to say, on the whole, I agree with Jane Irvine that the SLCC is not a safe venue to reexamine old cases where the Law Society of Scotland deliberately or incompetently mishandled complaints against solicitors.

We can't have the same people who worked for the Law Society and may have worked on many of these mishandled complaints, re examine their own work now they are based at the new Scottish Legal Complaints Commission. It simply is not on at all. How on earth could they be trusted to come up with an impartial view of their own work or that of their colleagues ? Simply not possible in the real world ... and it would only malign the name of the SLCC further.

There is no doubt that old cases must be reopened - there are many to consider, where the Law Society has let crooked lawyers off the hook but a new body must be created to do that, if only for that task, as I pointed out in my Petition PE1033.

You can read about my ideas for re examining historical cases of injustice caused by the legal profession & the Law Society of Scotland in the following articles :

The polluter pays - Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

Law chiefs & politicians who left Scots denied access to justice should move to heal legal system's sins of the past

There .. not too difficult is it now - and it doesn’t involved rocket science .. only needing the will to clean up the sins of the past and do some good, for maligned clients, the legal profession, the justice system, and the general public interest. Has to be a good idea, surely !

Truth & reconciliation is the way ahead, but putting together the legal profession, maligned clients, politicians who must lead the process or at least encourage it, and consumer organisations is not the easiest of tasks but it is definitely the way to proceed on this difficult and thorny issue, itself which has led to the changes in legislation and the creation of the new complaints commission.

It seems apparent there will have to be an independent Commission created for the purpose of re examining injustice caused by past mishandled cases of complaint against solicitors.

To achieve this, I hope the Scottish Government can see their way to bringing political leadership to this issue, by way of a fully independent Truth & Reconciliation Commission, ensuring a fair hearing for many people who have most certainly been denied such a right by the legal profession in the past - and are now seeing their rights abused again by what was to be a new broom in the legal world, now sadly losing its bristles before it even begins its work.

Hoping to repair the situation somewhat, the Scottish Consumer Council has also been campaigning for historical cases of poorly handled complaints against solicitors to be re examined by the new Commission, and has replied to the SLCC's rules consultation, pointing out inadequacies in the way the SLCC's remit and complaints handling is to be implemented.

In fact, looking at the SLCC’s remit, one could be forgiven of thinking it was … written by the Law Society of Scotland ?

The Scottish Consumer Council's response to the SLCC's consultation can be viewed here : Rules of the Scottish Legal Complaints Commission 2008 Consultation Draft (in pdf format), and is reprinted below.. You can read more about the SLCC consultation HERE

10 June 2008

Dear Jane

Rules of the Scottish Legal Complaints Commission 2008 - consultation draft

Thank you for consulting the Scottish Consumer Council (SCC) on the draft rules of the Scottish Legal Complaints Commission. We welcome the opportunity to comment on the consultation draft.

General comments

While we understand the need for the rules to be formal and precise, it is important that complainers are able to understand how they operate.

We hope, therefore, that the rules will be supplemented by clear, easily understood guidance for complainers on the Commission’s rules and procedures.We understand that the Commission is also to set up a ‘gateway team’ to advise and assist complainers, and we welcome this.

We are concerned that the Commission does not intend to consider re-opening historic complaints, particularly in relation to complaints about endowments sold by solicitors. We consider these to be a class of complaints which may merit being re-considered, for the reasons which we have previously outlined to the Commission.

Specific comments Rule 3 – making a complaint etc.

We are concerned about the implications of draft rule 3(6), which go beyond the issue of historic cases. As the draft rule stands, where the conduct or service complained about relates to a matter in which the practitioner was instructed by the complainer before 1 October 2008, the Commission will not accept the complaint.

This means that such cases will continue to be dealt with by the relevant professional bodies. This could mean that those bodies will have to continue to deal with such cases for many years after the work was carried out – where, for example, there has been a mistake in a conveying a property or in drafting a will, the problem may only be discovered many years after the event.

We presume that this also means that anyone who has a complaint falling into this category will only be entitled to the level of compensation which the professional body was able to award at the time the work was carried out, rather than the maximum £20,000 which the Commission will be able to award.

While it is understandable that the Commission wishes to start with a clean sheet, it seems unlikely that this situation is what the Scottish parliament intended. It also seems unfair on the professional bodies who could continue to receive such complaints for many years.

We would suggest that an appropriate compromise might be to apply rule 3(7) to cases falling within rule 3(6) (a), which would allow the Commission to deal with genuine long-term cases, without opening the floodgates. This would also mean that the professional bodies would know that there was a clear cut-off point for them beyond which they would not have to deal with service complaints. We would expect this date to be 1 October2009, on the basis that they will only accept complaints for up to one year after 1 October, which we understand is the intention of the Law Society of Scotland.

Rules 13-14: hearings

We are concerned that the terms of these rules – which refer to ‘hearings’, ‘evidence’ etc.- suggest an adversarial procedure, although the Commission has made clear it intends to operate in a more inquisitorial fashion.

Rule 21: quorum

We would suggest that draft rule 21(2) should provide that a quorum of any committee should include at least one non-lawyer member and one lawyer member.

Rule 22: reasons for determination

We would suggest that the Commission should give written reasons for its determinations, decisions etc.

Draft application form

It is not clear whether this is intended to be a paper form or if it can be completed electronically. Presumably the need for a signature means that even if it can be filled in electronically, it will need to be printed off and signed.

Again, we assume that the form will be accompanied by guidance explaining the meaning of terms such as ‘instructed’, ‘practitioner’ and ‘professional body’.

Question 1 – it may be helpful to make clear that an approximate date will be sufficient, where the complainer is unsure as to the exact date when they instructed the practitioner.

Question 2- it would be helpful to clarify from whom the details might be kept confidential – presumably the practitioner complained about. It could also be made clearer that not all of the possible types of contact details are required - only a name and postal address are needed in terms of the rules. Clearly, however, other forms of contact may be helpful to the Commission and would also be more convenient for the complainer.

Question 3 – is there a need to state here, as in relation to Question 6, that if the complainer refuses to allow the form to be copied to the practitioner, the Commission cannot investigate the complaint?

Question 4 – it is not clear what happens if the person filling in the form is not the client. Presumably if the Commission is to make a determination under draft rule 3(4) as to whether it is appropriate for that person to make the complaint on the client’s behalf, it will need further information about the substance of the complaint, as set out in the rest of the form.

It is not clear whether this question is also intended to cover the situation where the complainer wishes to complain about a practitioner’s service, but is neither the client nor acting on behalf of the client. This might be someone else who has suffered as a result of the practitioner’s alleged poor service/negligence, such as a beneficiary of a will or the client of a solicitor on the other side of a transaction, for example.

Question 9 - we are not convinced that complainers should be asked about why they want a particular resolution. This could be seen to be intrusive and is not necessarily relevant to the complaint. We would suggest that instead, question 8 could be opened up a bit more – to ask the complainer what ‘other action’ they would like to see, for example.

Finally we would have expected to see a question in the form about whether the complainer has already complained to the practitioner / firm / been through the firm’s complaints procedure. While the new process requires people to go through this stage before going to the Commission, not everyone will be aware of this.

I hope that these comments are helpful.

Martyn Evans Director


reader said...

Yes I was wondering when you would highlight that 'little policy' of not investigating work before 01.10.08.

Pretty rotten the whole thing considered.

Anonymous said...

Yes theres no doubt Mr Cherbi - the Law Society are making a real mess of this but as you point out it was all intended to happen anyway.

Good thing you keep exposing these events.Keep it up.

Anonymous said...

Is it really true "that ‘Counsel’ would of course, be a member of the Law Society of Scotland!"? I had thought that 'counsel' meant advocate, and therefore would have to be a member of the Faculty of Advocates rather than the LSS (and from what I can see, the Faculty sure as Hey! don't sing from the same songsheet as the LSS - the two bodies appear to be engage in a polite but fierce undeclared war at the minute).

Anonymous said...

Good to see the Consumer Council are taking issue with this quango but I think Jane Irvine's hands are tied.I'm sure she means well and hoped she might have a better remit than what it is turning out to be.

Anonymous said...

I read your earlier work on the SLCC and how it can be acceptable that both the Law Society and this new set up can investigate complaints is just silly.

Regulation must be taken away from the legal profession as you say.After that there will be no stick which disgruntled clients can use to beat solicitors with and we will all be happy for that.

Peter Cherbi said...

# Reader @ 10.45am

As ordered to do so by the Law Society of Scotland no less ...

# Anonymous @ 11.15am

Thanks and I agree with you. Pity the political leaders are allowing it to happen ...

# Anonymous @ 11.29am

Yes, its true.

Advocates still retain their membership subscriptions to the Law Society of Scotland, as well as being a member of the Faculty of Advocates.

Additionally, Advocates (Counsel) also subscribe to the same Professional Indemnity Insurance Scheme run by Marsh UK on behalf of both the Law Society of Scotland & the Faculty of Advocates - the same rather corrupt insurance scheme which saw Douglas Mill interfere in financial claims against solicitors ..and perhaps advocates ?

Sometimes the Faculty & Law Society appear to be at each other's throats ... but appearances can be deceptive ...

# Anonymous @ 11.48am

I agree. I think Jane Irvine hoped for more, but has definitely got less - this all taking place under the watchful eye of the Justice Secretary of course ...

# Anonymous @ 12.33pm

I agree with you. Many people including even solicitors have been saying exactly that for a long time, but as you can see, the Law Society has a policy of retaining regulatory control at all costs ...

Anonymous said...

"Yes, its true.

Advocates still retain their membership subscriptions to the Law Society of Scotland, as well as being a member of the Faculty of Advocates"

Quite correct Mr Cherbi.How very observant you are !

You will also know the Faculty also requires Advocates to carry Professional Indemnity Insurance just as the Law Society of Scotland does to solicitors.

Anonymous said...

Very good article Peter and pleased to see this new SLCC is getting itself into such a mess it has no credibility !

The only way I think we will ever get a fair hearing against lawyers it to make whatever they do a criminal offence and throw the buggers all in jail.

Keep up the good work !

Anonymous said...

So if I understand this correctly :

lawyers are members of the Law Society of Scotland

Advocates are members of the Law Society of Scotland and Faculty of Advocates

You need both to sue a lawyer yet both are insured by the same people and are investigated by their own colleagues.

Clients who then complain get no fair hearing and anyone who tries to claim against a lawyer or an advocate using lawyers and advocates to sue them gets nothing because all the lawyers and advocates cover up for each other so their insurance premiums don't go up.

Why has this been allowed to on for so long ? It is all VERY CORRUPT !

Anonymous said...

You were just waiting for all this to happen anyway because you wrote about it in the Herald ! Good work !

wee rab said...

Well spotted Mr Cherbi.

I doubt the SLCC will be allowed to make any difference from the way the Law Society regulated complaints against solicitors.

Another round of corruption please !

Anonymous said...

No justice for the public with this SLCC.You would all be better going abroad to get lawyers or at least over the border!

Why bother using Scottish lawyers if you are always going to get ripped off?

Anonymous said...

I agree with everyone else.This is just another sham to be able to claim their is some kind of independent regulation but no matter how you cut it when a pedofile says he is reformed no one believes him so it should be this bunch from the law society wont be believed either just because they've jumped ship to the new quango

Hands up people who have better ideas to sort out lawyers who are crooked !

Anonymous said...

Despite what you say I get the feeling you are being listened to and something will happen about these old cases probably thanks to you.

Good to see someone doing something productive in society so keep at it Mr C.