Independent regulation 'only solution' to feuding solicitors' regulators as court rules against Scottish Legal Complaints Commission

Law Society of Scotland wins court victory against 'independent' SLCC. THE DANGER of having two regulators of complaints against solicitors in Scotland has been brought into sharp focus with a recent Court of Session ruling over a decision by the Scottish Legal Complaints Commission to send a complaint from a third party against a solicitor to the Law Society of Scotland. The judges ruled by a majority verdict in favour of the Law Society, stating the SLCC should have rejected the complaint as totally without merit.

I initially reported on the Law Society’s court appeals against the SLCC in an earlier article during April of this year, here : Bitter feud between regulators as Law Society of Scotland take Scottish Legal Complaints Commission to Court of Session over complaints role

The complaint made by Mr Glenn McIntosh and Mrs Janet McIntosh to the Scottish Legal Complaints Commission, stated they had received “an overly aggressive, intimidating and threatening letter” from a firm of solicitors, Mr Alistair Dean, solicitor, of the Alistair Dean Law Practice Ltd, Edinburgh, alleging trespass and threatening interdict proceedings over the McIntoshs’ alleged access through land owned by Mr Dean’s client, Mr Allan Pryde of Pryde Homes Ltd. The letter accused the McIntoshs’ of damage to a septic tank and drainage, which was denied in the McIntoshs’ complaint to the SLCC.

The McIntoshs’ told the SLCC : "We have received an overly aggressive, intimidating and threatening letter dated 6 July 2009 from adlp which was delivered while we were on holiday. In this letter we are accused of a continuing transgression through land allegedly owned by an Allan Pryde, Pryde Homes Limited. … We admit to accessing the field to the north which is owned by a local farmer Mr Miller, via the boundaries of our neighbour's property, in this letter you will see we are accused of causing damage to the septic tank and drainage and that access is prohibited, you will see our response to this in the letter we sent to adlp dated 28 July 2009 to which we have not yet had a reply. We also enclose a copy plan showing exactly where the equipment referred to is situated.”

“The majority of this letter is based on inaccurate facts and untruths and we think it is an absolute outrage that solicitors are sending this type of correspondence to people. My wife has shown the letter to Trading Standards who were equally shocked by the content and this has prompted our communication with you".

The Scottish Legal Complaints Commission considered matters, and determined the complaint should be remitted to the Law Society of Scotland for investigation and determination as a conduct complaint in accordance with section 6 of the LPLA (Scotland) Act 2007. The Law Society challenged the SLCC’s decision, and filed the resulting appeal at the Court of Session.

While Lord Kingarth & Lord Reed both sided with the Law Society of Scotland, finding the complaint to be totally without merit, and the SLCC’s decision to send it onto the Law Society wrong, Lord Malcolm gave a differing view, supporting the SLCC’s actions, detecting no error of law in the Commission’s approach to the complaint.

Lord Malcolm’s opinion in full : The appellants' (Law Society) concern is that in general the respondents (SLCC) are too reluctant to consider the merits (or demerits) of a complaint when assessing whether it is or is not "totally without merit" for the purpose of deciding whether to refer it to the professional body for investigation and determination. On the other hand the respondents stress that the public interest in the proper regulation of the profession demands that it should be alerted to any circumstances where there might be professional misconduct or unsatisfactory professional conduct. The present case has been selected from a number of appeals which raise similar issues.

His Lordship continued : [48] Parliament has decided that, notwithstanding the creation of the Scottish Legal Complaints Commission ("the Commission"), the relevant professional body (in this case the Law Society of Scotland) should remain responsible for the investigation and determination of a conduct complaint. This suggests that when considering whether or not a complaint is "frivolous, vexatious or totally without merit" in terms of section 2(4) of the 2007 Act, any inquires carried out by the Commission should be no more than is required to allow it to answer that question. Were it otherwise, there would be a risk of duplication of effort, unnecessary delay, complexity and confusion. The Commission might be drawn into an investigation and consideration of the merits of a complaint, something which is specifically the responsibility of the Society. It was plain from the discussion at the hearing on the appeal that the Commission is anxious to avoid usurping the exclusive jurisdiction of the professional body to police conduct issues.

[49] A flavour of the correct approach to the phrase "totally without merit" can be gained from the link with "frivolous" and "vexatious" complaints. In my view, the test of "totally without merit" is different from a test of "without merit". The latter would require consideration of the substance of the matter, allied to any necessary investigation. The statutory formula does not require this. It allows the sifting of complaints which, on their face, are obviously unworthy of any consideration or investigation by the professional body. It covers hopeless complaints where it is clear that further inquiries could make no difference. A conclusion that a complaint is unlikely to succeed would not meet the test for dismissal by the Commission at the preliminary stage. ("Succeed" may not be the correct word since it connotes a dispute or adversarial process akin to litigation, whereas for a professional body the fundamental purpose of a complaints system is to facilitate its duty to protect the public and to promote proper professional standards). The hurdle set by the phrase "totally without merit" is very low. While not exact, the nearest equivalent which occurs to me is the "clearly unfounded" test for certification of an asylum claim under section 94 of the Nationality, Immigration and Asylum Act 2002, around which there is a developed jurisprudence. It stresses that certification should be granted only if it is absolutely clear that, if put before an immigration judge, the claim would be bound to fail. Anything more than a fanciful prospect of success, perhaps after and depending upon the outcome of appropriate investigations, would prohibit certification: see A K (Sri Lanka) [2009]

EWCA [Civ] 447.

[50] Contrary to a submission made by counsel for the Commission, for rejection of a complaint as totally without merit under section 2(4) it is not necessary that it be identified as an abuse of process. That submission is based on an unwarranted gloss on the statutory wording. A complaint may be totally without merit, yet not an abuse of the process. An example is given later in this opinion.

[51] The creation of the Commission and its "single gateway" role was, at least in part, prompted by a concern that the previous regime was "run by lawyers for the benefit of lawyers". Such perceptions were damaging to the standing of the profession. The policy was "to build public confidence in the system for handling complaints against lawyers" by instituting procedures which "put the users of legal services at the heart of regulatory arrangements" (paragraphs 6 and 26 of the Policy Memorandum relating to the Legal Profession and Legal Aid (Scotland) Act Bill). Thus the Act set up a body independent of the profession which, amongst other things, would decide whether the relevant professional body should be required to investigate a complaint. Previously the Justice 1 Committee of the Scottish Parliament had offered the view that such a system "could reassure the public that complaints could not be unfairly rejected as invalid by the professional bodies", there having been expressions of concern that they were too quick to find reasons for declaring a complaint to be ineligible (paragraph 5.8 of the Report "Reforming Complaint Handling, Building Consumer Confidence" May 2005).

[52] This background suggests that, when dealing with complaints, the Commission (and the relevant professional body) should try to keep in mind how things might appear to a lay person. Whatever the outcome, it should try to resolve complaints in a manner which avoids a feeling on the part of complainers that their concerns have been swept under the carpet. This indicates that a complaint should be rejected by the Commission as being "totally without merit" only in a clear and unambiguous case. One approach would be to ask whether a sensible person could think that there may be something to be gained from a referral to the professional body.

[53] There may be cases which, though not focused by the complainer, raise topics of general concern or interest, which the professional body might consider to be of value or significance from the point of view of reviewing and perhaps improving standards and general practice. Proper professional conduct is not set in stone. The present case might prompt the Society to reflect on what is to be expected of a solicitor who is instructed to write a letter directly to lay people threatening court action on the basis of alleged wrongdoing. For example, guidance might be given that solicitors should make it clear that they cannot and do not associate themselves with the allegations, but are simply acting on the instructions of and on the basis of information provided by their client. While lawyers may understand all this, lay people may not. If the allegations are unwarranted, the recipients may consider that they are being bullied and intimidated by a professional person. For many people, a letter in such terms from a solicitor will be an unusual and worrying thing. In most people's eyes it will have a special status. Furthermore, language which appears normal and measured to a lawyer may well come across quite differently to a lay person. The court was informed that throughout the whole process the solicitor made no response to either the complainers or the Commission. In these circumstances the Society may wish to consider whether it is satisfactory for the solicitor to ignore rebuttal letters, especially if in the meantime he neither raises the threatened court proceedings nor says anything further on the subject, thereby leaving the people concerned in a state of uninformed limbo.

[54] In summary, if a complaint raises issues which may be of general interest to the professional body with responsibility for reviewing conduct and standards, I would not expect it to be rejected by the Commission under section 2(4). The contrary approach would involve an overly restrictive concept of the term "merit". All of this follows if it is understood that such a complaint is not analogous to an adversarial dispute, nor to a summons in a litigation. A summons necessarily imports notions of onus, specification and relevancy, but in my view it would be wrong to translate similar concepts to the present context.

[55] During the hearing there was some discussion as to whether, for the purposes of section 2(4), "the complaint" should be restricted to the specific concerns focused by the complainer. Given the wider public interest issues involved, I would not expect the professional body to consider itself so constrained if it identified other matters deserving of its attention. I would not expect a complaint to be dismissed as being wholly without merit simply because, for whatever reason, the complainer had not articulated a matter which deserves investigation. Typically complainers will not be lawyers. I see no reason to adopt a different interpretation of the provisions of the Act, including section 2(4). Thus, in my view, the Commission should not adopt a narrow view restricted to the specific concern or concerns as expressed by the complainer. Rather it should decide the preliminary issue on the basis of the whole circumstances arising from and relating to the complaint. The same will apply if the court is considering whether to exercise its powers under section 22 of the Act to substitute its decision for that of the Commission.

[56] The 2007 Act expressly allows for complaints of "unsatisfactory professional conduct", a much broader, easier to establish concept than the more serious matter of professional misconduct. When considering its task under section 2(4), the Commission should ask itself whether there is any possibility that the relevant professional body would consider that the complaint merits consideration, with or without further inquiries. In other words, and putting the matter colloquially, "might there be something in it?". If the answer is "possibly yes", the hurdle is cleared and the Commission must refer the complaint to the professional body. An example discussed at the hearing where the answer to this question would be "clearly no", concerned a complainer criticising his advocate for referring the judge to a recent Supreme Court authority adverse to his client's interests, which had been overlooked by his opponent's counsel. It is wholly understandable that this might irritate the client, and leave him feeling aggrieved. Such a complaint could not be described as frivolous, vexatious or an abuse of process. However, it is beyond doubt that counsel was simply fulfilling his duty to the court and no amount of further investigation could alter that fact. This would be an example of a complaint which was totally without merit within the meaning of section 2(4).

[57] Where the Commission is of the view that further investigation is needed, it does not follow that the Commission must carry out that investigation before it can determine the section 2(4) issues. On the contrary, a need for investigation is likely to demonstrate that the complaint is not totally without merit. This remains so even if the likelihood is that further investigation will exonerate the solicitor. In my view, the phrase "whether or not" in section 2(4) does not compel the Commission to resolve any uncertainties. In a case where further investigation might be relevant, it is the professional body, not the Commission, that should undertake that investigation.

Contrary to what might be deduced from certain submissions made on behalf of the Society, it is important that when considering its task under section 2(4) the Commission does not reach conclusions as to what the outcome of such investigations might be, for example because of assumptions that the solicitor will not have acted improperly. The dangers of such an approach are obvious. Equally, neither the professional body nor the practitioner should be offended or disturbed by a decision by the Commission to refer, since this involves no judgment on the merits of the complaint.

[58] In the grounds of appeal the Society emphasises the stress and other difficulties which a complaint can cause for a solicitor. No doubt an investigation by one's professional body can be stressful and unwelcome, but there are powerful public interest considerations lying behind Parliament's decision that conduct complaints should be fully and properly considered by other members of the profession. The emphasis should be on protection of the public and safeguarding the reputation of the profession: see Graham v Nursing and Midwifery Council 2008 SC 659 (Extra Division) at paragraph 13.

[59] Notwithstanding all of the above, I am of the view that counsel for the Commission was wrong when he appeared to suggest that once a complaint is lodged the Commission can ask no further questions of the complainer. That submission is contradicted by the terms of section 17 of the Act. Even without that provision, I would have concluded that the Commission has an implied power to seek clarification of the complaint or the factual basis for it, though, as indicated earlier, any such inquiries ("investigation" is perhaps the wrong word) should be no more than is necessary to allow the Commission to decide the preliminary issue under section 2(4). With regard to the hypothetical example proffered by counsel for the Society during the hearing, if a complainer says only that X is a thief, there is nothing to stop the Commission from asking "why do you say that?". If the answer is because X is a red head and all red heads are thieves, then clearly the complaint should be dismissed as frivolous, vexatious or totally without merit, or perhaps all three.

The Present Appeal
[60] Turning now to the circumstances of the present appeal, when considering whether the complaint is or is not totally without merit, I would expect the Commission to have in mind two matters. Firstly, that it is possible that the allegations in the letter sent to Mr and Mrs McIntosh are wholly inaccurate, and that it might be understood by them as the solicitor asserting that the allegations are true, particularly having regard to the terms of the first, second, sixth and penultimate paragraphs. Secondly, that it is at least possible that the Society would take the view that a solicitor should appreciate that the recipients might be alarmed and distressed on receiving such a letter from a solicitor. I have in mind the statement that "if there is a repeat of your accessing the land in question, our client has instructed us to raise court proceedings, in the form of an interdict action, without further notice", allied to the reference on the next page to a report of malicious damage to the police. Given the terms of the reply from Mr and Mrs McIntosh to the solicitor, the view may be taken that he should have appreciated that if he failed to reply to that letter, then they may be left in a state of worry and uncertainty. Further, and especially should the true facts be as asserted by them, absent any response to their letters, and with no court proceedings being raised, they may be left with the overall impression that there was never any real intention to bring the matter to court, and that a solicitor's letter was simply being used to bully and intimidate them. It was common ground at the hearing that it would be at least unsatisfactory conduct for a solicitor knowingly to participate in such an exercise. In these circumstances the complainers might expect the Society to at least check that the solicitor was not privy to or party to any such objective. In my view the issue is not whether the solicitor had instructions, but what those instructions were. An outright rejection of their concerns by the Commission without any consideration by the professional body may well leave the complainers with the impression that their concerns had not been addressed.

[61] None of this involves any assertion on my part that there has been unsatisfactory or improper conduct on the part of the solicitors. However, in the overall circumstances, I agree with the Commission's decision that the complaint should not be dismissed at this stage. Such a decision is wholly neutral as to the proper disposal of the complaint. If the matter was referred to the Society, it would remain open to it to conclude that on no view of the facts has the solicitor transgressed any rule or fallen below a satisfactory standard of conduct. Further, a referral does not oblige the professional body to any course of action other than to apply its mind to the complaint, carry out such inquiries, if any, as it thinks fit, and reach a reasoned decision on the complaint. I do not interpret section 47 of the Act as imposing an elaborate procedure where none is required. However, at a minimum, one result of a referral might be some consideration as to whether a solicitor should make it clear in letters such as that sent to Mr and Mrs McIntosh that he is simply acting on the basis of information provided to him, and, when a detailed response is received, that the threat of interdict proceedings should not be left hanging in the air. At the hearing, counsel for the Society indicated that a solicitor would be expected to respond to a letter from another solicitor. Without some explanation from the Society, members of the public are unlikely to understand why a lay person is not entitled to the same courtesy.

[62] The Society's grounds of appeal suggest that a solicitor can never be expected to do more than proceed on the basis of a state of facts presented to him by his client when writing a letter alleging wrongdoing. (A contrast is drawn with the obligations on a solicitor when drafting court pleadings). I am reluctant to endorse that as an absolute rule in all circumstances, and it can be noted that the letter did threaten interdict proceedings without further notice. I do not interpret the complaint as an allegation that the solicitor should have, in effect, warranted that the stated facts were true before writing the letter. Plainly that would be impracticable and beyond any reasonable requirements on a solicitor asked to write such a letter. Also, I am not suggesting that after receipt of the letter from Mr and Mrs McIntosh the solicitor was then obliged to adjudicate on the dispute. However, I would disagree with any proposition that, whatever the circumstances, a solicitor's obligations begin and end with his duties to his client, fellow professionals and the court. There is no such limitation in the phrase "unsatisfactory professional conduct" which, in broad terms, is defined in section 46 of the Act as covering sub‑standard professional conduct. Obviously from time to time lawyers cannot avoid writing letters which will cause upset, but equally I do not agree with counsel for the Society's submission that, when considering a complaint of this nature, the likely effect of the letter on its recipients must always be treated as wholly irrelevant.

[63] At least some of the above considerations were in the mind of the author of the Commission's document headed "Determination under section 2(4)". Writing in November 2009 he observed that there had been "no response of any kind received by Mr and Mrs McIntosh to their letter of 28 June 2009". He also noted that the solicitors had made no response to a second letter of 14 August, which was sent on the advice of the Commission. From the terms of paragraph 3.4 of that document it is plain that there was a concern that the terms of the solicitor's letter were too assertive as to the accuracy of the information being supplied to the solicitors, and "gave no opportunity to Mr and Mrs McIntosh to explain their version of events". For myself I see no defect in the reasoning contained in the determination when, as the author clearly stated, the only question was whether the complaint was or was not totally without merit. For the reasons explained above I also have no difficulty in following the potential relevance of the solicitor's failure to respond in any shape or form to the letters of 28 June and 14 August.

[64] I detect no error of law in the Commission's approach. Even if, as indicated in the opinion of your Lordship in the chair, there was an element of misunderstanding in the author's mind as to the proper role and duty of a solicitor in these circumstances, nonetheless, for the reasons given earlier, it would not cause me to regard the decision itself as vitiated, nor to substitute a different one. In the whole circumstances, I regret that I find myself unable to agree with your Lordships. I would refuse the appeal.

Despite winning the appeal, the Law Society of Scotland strangely did not issue the usual media release promoting itself as the world’s worst best regulator of solicitors, it’s 20 year reigning Director of Regulation Philip Yelland choosing rather to make a brief comment in the Journal Online.

Rosemary Agnew, the interim Chief Executive of the Scottish Legal Complaints Commission issued a brief statement : “Although the Lords found for the Law Society of Scotland by majority, and so the Commission lost the appeal, we recognise the opinions expressed in the decision are of vital importance to our future operations and are giving the matter measured consideration.”

However, a source close to the SLCC said the blame for origins of this case, and others of a similar nature currently going through the Court of Session lay firmly with the Scottish Parliament’s Justice 2 Committee’s consideration of the Legal Profession & Legal Aid Bill during 2006.

She said “As the Justice 2 Committee considered the LPLA Bill during 2006, MSPs & the Scottish Executive must have realised from testimony the Committee heard the Scottish Legal Complaints Commission should have been put in charge of all complaints against solicitors, rather than the Law Society being allowed to retain conduct complaints & discipline. These failures are now causing significant problems for the SLCC’s complaints handling remit.”

I reported on the progress of the LPLA Bill during 2006 on many occasions, reporting on the bill’s final passage through a Scottish Parliament vote, here : Legal Profession & Legal Aid Bill finally passed by Scottish Parliament, with amendments. Make no mistake, the LPLA Bill was as butchered by the Law Society of Scotland then, as the current Legal Services Bill is being butchered by the same vested interests bent on retaining their power over what is little more than a money making ‘business’ to the legal profession, which the Scots public must rely on for access to justice.

A legal insider commenting on the Court of Session’s ruling said it set a dangerous precedent for the treatment of third party complaints raised by non-clients.

He said : “Firstly I would like to make clear I believe there must be an effective mechanism for dealing with third party complaints against the legal profession. However, one has to wonder at the motives of the SLCC for sending this particular complaint to the Law Society in the first place, when one of its own staff had already judged the complaint to be without merit.”

He continued : “It is a matter of record there are now two recent favourable rulings to the legal profession in terms of how the Law Society & the SLCC handle complaints. Both these rulings do not in my view benefit the public, rather they show a pattern of both regulators apparently trying to gain court backing for their handling of complaints, necessitated by the ludicrous situation of having two regulators handling complaints against the legal profession, both vying for the spot of top dog, while doing little to instil any public confidence in their operation.”

A solicitor speaking this morning to Diary of Injustice said : "Questions must now be asked regarding the SLCC & the Law Society’s conduct in this case and the other appeals, which are ultimately being funded by the profession in a rather odd situation where solicitors are effectively paying a complaints levy to see two regulators run up huge court costs over questionable decisions. I for one am not happy with this state of affairs.”

Clearly independent regulation of the legal profession in Scotland would resolve these problems where the SLCC finds itself having to send off conduct complaints to the Law Society of Scotland, for what we all know amounts to a complaint’s certain death, however, as we have witnessed over the past two years, the Scottish Legal Complaints Commission has underperformed on an almost unimaginable scale in terms of its public expectation of cleaning up complaints against solicitors.

If fully independent regulation of the legal profession is to come in Scotland, the SLCC is not in my view the body to be trusted to do it, and the Scottish Parliament appears too weak to create an effective truly independent body which could live up to the task. After all, one really has to ask oneself what kind of people, after hearing the kinds of testimony which came out during Holyrood’s consideration of the LPLA Bill would be stupid enough to leave a discredited regulator such as the Law Society of Scotland in charge of even a duck house …?