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

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

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

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.