Thursday, July 17, 2008

Lawyers retreat on complaints changes as Law Society attempt more subtle control of 'closed shop' regulation

After my earlier article featuring correspondence from the Scottish Consumer Council to the Law Society of Scotland on the subject of the lack of client involvement in the complaints process under the new procedures for conduct complaints after 1st October 2008, the revelation of a new letter from the Law Society, mysteriously dated one day before the letter from the SCC Director on the same subject, document a climb down from the Law Society on removing clients from much of the complaints process.

Coincidence some may call it, but those in the know are well aware that coincidence is non-existent when it comes to all things law in Scotland, and particularly all things involving the Law Society of Scotland, who are determined to maintain control of the complaints process against lawyers for themselves.

A misdated letter ? The Law Society react to criticism before its made

Law Society to SCC - Climbdown on Complainers Status & right of representations

Mary McGowan, Deputy Director, Client Relations Office :

"Further to my letter of 10 April 2008 I thought you might be interested to learn that the Society has taken on board comments made during its consultation period, particularly in relation to the status of the complainer in the new system.

I attach a briefing note and diagram explaining the process as now envisaged.

Complainers will retain the status they currently enjoy with the current system which is to be involved at all stages and have a right of representations on the report which forms the basis of the decision in the complaint. Naturally, we will require to build an appropriate alert to ensure that non- client complainers do not receive information to which they are not entitled."

For comparison you can read my earlier article on the Law Society's ideas of removing client's rights to input into the regulatory process here : Law Society of Scotland to allow 'secret reports' from lawyers against clients amid prejudiced complaints handling reforms

So, the Law Society has decided to climb down on removing the rights of a client to see & respond to the complaints investigation report itself, but it still appears that solicitors will still be able to make private submissions to Complaints Committees which clients may well not be able to see - or as the Law Society of Scotland calls it 'entitled to see' ...

As I have reported in earlier articles, the submissions made by solicitors themselves directly to the Complaints Committees have often turned a complaint decision on it's head against clients .. with clients unable to get hold of the solicitors representations, due in many cases it seems to the highly personal and defamatory content of them, the Law Society considering their release far too dangerous for the legal profession as a whole.

The Law Society is of course, trying to make the best of things, but all the while ensuring they retain control of the complaints process, and the Society has definitely achieved hat, with many of their former members of staff now working at the Scottish Legal Complaints Commission, and several Law Society Committee members appointed to either "lay" or key professional positions within the SLCC itself.

Here follows the Briefing Note on the Draft Conduct Complaints Process - from the Law Society's viewpoint :

Musical Chairs : How the Law Society re-arranges complaints procedures to maintain an overall air of whitewash

Law Society to SCC - Brief None on Draft Conduct Complaints Process Page 1Law Society to SCC - Brief None on Draft Conduct Complaints Process Page 2

1. Commission Liaison

This will be the Society’s reception point for complaints. The Scottish Legal Complaints Commission will exercise the gateway function in respect of all complaints. Some complaints will involve both service with the commission and decide by whom and in which sequence such complaints will be handled. Once complaints are remitted to the Society, they will be investigated.

2. Investigation – Planning

Both the process and merits of a case will be handled by a Society employee known as a Complaints Investigator. This investigator will have access to a panel of experts should that be required. Investigations will be conducted according to a flexible investigation plan, approved by the investigator’s Line Manager.

3. Investigation – Ingathering Evidence

The Complaints Investigator’s job is to gather information in an appropriate way to build up a picture of the complaint and it’s context.

4. Investigation – Analysis

Once all information is ingathered, the Case investigator will prepare a report which will set out a precis of the complaint; a summary of the investigation; a narration of the facts found; an indication as to whether the conduct constitutes professional misconduct, and satisfactory professional conduct or neither and, lastly, a recommendation as to action to be taken. Where the complainer is a client, a copy of this report will be forwarded to both parties for representations. Where the complainer is not a client, the Society must be careful not to disclose any confidential information.

5. Decision

Once representations have been made on the report, a set of papers will go before a committee called the Professional Conduct Committee which will take a decision on the complaint.

6. Powers of the Society

Professional Misconduct

The Society’s role where professional misconduct is concerned is investigatory only. If the Professional Conduct Committee is satisfied that the complaint appears to amount to professional misconduct, then its only power is to prosecute that complaint before the Independent Solicitors Discipline Tribunal. It cannot take a decision of professional misconduct itself.

Unsatisfactory Professional Conduct

The Society has been given powers to decide these complaints and apply sanctions. These are :-

(1) Censure (mandatory)

(2) Compensation to the complainer up to £5000

(3) Fine the solicitor of up to £2000

(4) Order retaining

(5) A combination of any of the above

7. Appeals and Referrals

Either party has the right to appeal against a decision of unsatisfactory professional conduct to the Scottish Solicitors Discipline Tribunal. In addition, the complainer only has a right to refer any dissatisfaction with the handling of the complaint to the Scottish Legal Complaints Commission which will adopt a role similar to that of the Ombudsman in the present system.

Flowchart to a whitewash - New system of conduct complaints show low levels of consumer protection against rogue lawyers

Law Society of Scotland - Draft Complaint Process after 1st October 2008

Essentially nothing much has changed from the Law Society in terms of how they regulate complaints against their own members - in fact, it looks now as if Conduct Complaints are going to be one of the ways in which the Law Society may well attempt to get lawyers in trouble 'off the hook' if caught on serious service issues which the SLCC might be brave enough to investigate - but only perhaps after serious media pressure to do so.

Overall, the recent changes and adjustments made by the Law Society of Scotland to complaints procedures, end up clearly showing the problems of having a dual regulation system for Scotland's legal profession where there should of course only be one, and a fully independent regulator for legal services at that.

Continuing the role of the Law Society of Scotland as a regulator in any shape or form will only bring lower levels of public confidence in Scotland's legal profession, which have currently hit rock bottom - and the spectacular infiltration of the Scottish Legal Complaints Commission by the Law Society itself will do nothing for clients rights or increased consumer protection against rogue solicitors, of which there are now more than there should be, due to the Law Society’s poor management of Scotland’s legal profession over the years.

22 comments:

Anonymous said...

So the Law Society got wind of the SCC's letter before it was sent and in any case that SCC letter would have been written a couple of days before that date I think.

It all looks bad for the Law Society at the end of the day.I support your belief there should

Anonymous said...

So more smoke and mirrors from the Law Society - or a typing error?

Perhaps the Scottish Consumer Council should write and demand an explanation.

One thing is certain however, the Law Society continues to retain its monopoly over all aspects of regulation - regardless of the name of the Committee hearing complaints.

Anonymous said...

Utter nonsense from the Law Society but you have to give them full marks for doing the dirty once again!

Anonymous said...

last time I saw someone write a letter before the other side did they had inside info - is this the same type of thing or are the Law Society just a bunch of clairvoyants ?

good story and really shows up the lawyers for what they are

keep it up !

Peter Cherbi said...

# Anonymous @ 5.51pm

Yes you are probably correct.There isn't much happens in the field of regulation of lawyers that doesn't come to the attention of the Law Society first ...

# Anonymous @ 6.21pm

I don't think the Law Society will respond truthfully to any request for explanations ... and you are correct - the Law Society continues to have a stranglehold on regulation of complaints against lawyers - and that was certainly not the intention of the LPLA Act as it was created.

# Anonymous @ 9.41pm

I agree with you entirely.

Anonymous said...

All very interesting Peter but you fail to mention no sign of Philip Yelland in these letters.

Why is the Deputy Director being allowed to make policy statements when it should be the Director himself,or is Mr Yelland keeping his hands out of the dirty washing in case some of it spreads to him ?

Keep up the good work of course.

Anonymous said...

The Law Society would just say the letters crossed in the mail but we all know they are bloody liars anyway.
Good story as usual and a pity the papers didn't feature more of this but too many threats from the lawyers will block that.

Anonymous said...

Who made the comment in the consultation that complainers have no input into report and who said they should have ? I can't find any link on the Law Society's website to any of the submission forms like what is usually posted on the Scottish Parliament's website.

I presume this is because most of the forms submitted to the consultation on standards were from lawyers themselves or even made up ones from the Law Society ?

wee rab said...

Disgraceful set of letters from McGowan to the consumer council.Client Relations should be wound up along with the rest of the Law Society.They will never change as is proved in their actions.

Anonymous said...

Another own goal for the Law Society of Scotland but as you say they will probably be allowing lawyers to make statements under the table so no one gets to see except themselves.

Why doesn't the SNP just scrap self regulation all together.

Anonymous said...

laughable - they can't even fix the dates on their letters properly !

Anonymous said...

That chart showing the way a complaint is to be handled is a nonsense.No wonder people like you are able to pick holes in the Law Society's way of doing things.

All in all I think you hit the nail on the head sometime ago when you said the problem is the Law Society itself so its a case of best rid of bad rubbish as they will never change.

Good luck - you have admirers in the profession as I'm sure you know yourself.

Anonymous said...

Nice try Mrs McGowan but your letter is entirely unbelievable as is the way you are treating members of the public.

Its time we had some BIG changes in the way lawyers get to control us over how they rip us off.Just look at whats happened to the banks lately so now its time to target the lawyers too and bring them off their perch.

Anonymous said...

just to agree with everyone else - this is a complete mockery of doing something about complaints and the blame for this obviously lies with MacAskill because he is allowing it to happen.

Very sick for Scotland.Sick Sick Sick.

Anonymous said...

Dear Mr Cherbi

Our lawyer has told us he wont hand over the titles to my late father's house unless we pay him a bill of over £5000 he claims is for photocopying the titles and all my late father's papers.

We have been to the Law Society and they said there was no case to answer but he has produced no proof of his work there is no copies of the titles in the file which we have seen one day when we went there while he was on holiday and now one of his staff tells us he had a meeting with someone from the planning office about the house which she claims he is trying to get for himself.

Please could you help us as this is becoming very bitter the lawyer has caused a lot of trouble for my wife's job and is almost hounding us daily.

Anonymous said...

If lawyers think they will win confidence in themselves with that tripe about complaints they have another thing coming.
Looks like its a good time to launch a national campaign against lawyers fees now ?

Anonymous said...

If the Law Society are allowing lawyers to steal peoples title deeds they should be hung up from the nearest tree and the Police called of course.

Get that story into the papers and name that bloody lawyer !

Anonymous said...

Not surprised at the comments on what the Law Society is doing.Just another round of whitewash as you say in your article and nothing which will encourage anyone to go anywhere near a lawyer or feel safe about doing so.

Anonymous said...

Far from a retreat on this the law society has made it more difficult for people and no one will believe for one minute they wont allow bent lawyers to have a quiet word with these committees.

Why not just send these lawyers to jail anyway rather than keep these complaints as civil matters ? Why do they have to be regulated with lawyers when everyone else who rips off people like lawyers do get charged by the Police instead.

Anonymous said...

First chance this week I've had to sit down and read your blog Mr Cherbi and I can tell you from reading what the Law Society of Scotland want us to believe no wonder its time to end their time investigating the complaints of public against solicitors.

A good expose of a very corrupt system of lawyers being able to ruin any part of a person's day to day life.I will refer to your work in an upcoming seminar.

Anonymous said...

Well the Law Society letter shows one thing - never trust a lawyer even with dates on letters !

Maybe Scots should start using lawyers from the rest of the country if their own are too crooked, since it looks like they definitely are too crooked to touch !

Peter Cherbi said...

Thanks for all your comments, and it seems the Law Society have had a bit of a climbdown on their stance, although of course even if the Law Society says clients who complain will have their present entitlements within the investigation process maintained, that isn't very much going by the way the Law Society has been treating complaints all these years.

# Anonymous @ 6.38pm

Please email me with futher details of your case, what the Law Society did and what is currently happening with your solicitor. It certainly isn't right or fair he is keeping a hold of the title deeds of your late father's house.