THE MAD, THE BAD & THE SAD: Scots financially ruined by rogue lawyers are ridiculed at secret briefing with Scottish Legal Complaints Commission as solicitors demand their victims should be forced to pay for complaints

Secret discussions held at ‘independent’ regulator on reducing complaints & making victims of dodgy lawyers pay for a slap on the wrist. DOCUMENTS obtained under Freedom of Information legislation have revealed that pro lawyer lobby group the Legal Defence Union (LDU), and the ‘independent’ Scottish Legal Complaints Commission (SLCC) which is staffed mainly by lawyers who are supposed to investigate complaints against corrupt lawyers, held private briefings where fee paying clients of dodgy Scottish solicitors were targeted & verbally abused as “mad, bad and sad” in secret discussions containing a wide variety of proposals aimed at silencing members of the public who complain against their solicitor.

And, in an effort to dissuade financially clients ruined from making complaints against their lawyers to the multi million pound SLCC which is kept afloat by contributions recouped from clients fees to the tune of nearly £3million a year, it has been proposed, with the knowledge of the Law Society of Scotland that victims of dodgy lawyers who have already been ripped off, may be forced to pay large sums of money to the regulator itself, otherwise complaints against crooked lawyers WILL NOT be investigated.

So serious are the proposals to force victims to pay for an investigation into crooked lawyers, a legal insider close to the discussions has revealed that figures as high as ONE THOUSAND POUNDS per complaint have been secretly discussed by a number of pro-lawyer groups intent on defending their colleagues from being investigated for ripping off their clients.

The plan, to force victims of dodgy lawyers to cough up even more money for regulators to investigate complaints which usually only end up with a slap on the wrist anyway, also appears to have JUDICIAL BACKING after legal insiders involved in the discussions made it clear that senior members of Scotland’s judiciary have been consulted on, and have given unofficial support to the moves aimed at preventing members of the public from being able to have any complaints against lawyers properly investigated.

One member of the judiciary, who has previously heard civil claims against solicitors in the Court of Session, and who is known to have close links to the Law Society, has even suggested the move would help prevent clients from being able to take their lawyers to court in cases the judge described in a remark as “boring, time consuming and irrelevant”.

In a further account of activities at the Scottish Legal Complaints Commission days after the briefing with the Legal Defence Union had taken place, apparently staff at the regulator broke into laughter and told rounds of jokes about clients who had approached them for help after being financially ruined by their solicitors. However, there are no records of any disciplinary action being taken at the SLCC over these incidents which allegedly continue to present day.

The Scottish Legal Complaints Commission has not published or made any comment on why clients who approach the regulator for help in dealing with rogue solicitors continue to be treated in this way by its staff and organisations which influence the regulator’s day to day workings, including how complaints are investigated.

And it is still the case that many clients of Scottish solicitors who approach the SLCC for help are often treated to a months, if sometimes years long hell where often complex complaints alleging fraud committed by Scottish solicitors are curiously ditched after lawyers have their say.

You may be mad, bad or sad, but only after your lawyer took all your money – Secret Legal Defence Union briefing to regulator says spare the lawyer, fleece the client for a little more.

Guiding Principle

The LDU believe that it is an essential requirement of any complaints process that it is fair and impartial and seen to be fair and impartial both to the complainer and the complained against party. That is the starting point and guiding principle in considering any amendment of the 2007 Act.

Meeting on 21 March

I have reported back on the notes of the meeting on 21st March to my colleagues in the Legal Defence Union but there has not been opportunity for response for the meeting planned today.There is one point however upon which I would like to comment on immediately. That is in relation to point 4 - third party complaints.

Third Party Complaints

... are a source of a great concern not only to the LDU Board but also to practitioners in general who express horror and disbelief that such a "wide" definition is allowed.

I am greatly encouraged that the group have identified that these are in the main impractical and a cause for concern to practitioners and I agree that they mismanage expectations of complainers.

I am willing to be corrected but I do not think that this applies to other professions like Accountants, Architects or Surveyors. It is also a source of abuse towards practitioners.

"The Elephant in the room"

1. This touches upon the thing that nobody seems to want to talk about. Most complaint systems are bedevilled by complaints by the mad, the bad and the sad and which may have no basis. We believe the time has been reached for a sum of money to be lodged as a "good faith deposit" towards expenses in such cases.

2. There is no doubt that if a complainer had something to lose then his mind would become focused on whether he would wish to proceed with a complaint. In practice the idea would be that the good faith deposit would be returned if the complaint was upheld but otherwise would be forfeit.

3. Perhaps this goes too far for the present WG but I make no apology for bringing this issue up and I really would welcome a debate on this problem that no one wants to talk about, probably as Complaint bodies do not want to be the first to do so. It is a general point for all complaints processes. There is constant abuse of complaint processes and someone needs to tackle it.

Third party complaints against Solicitors are such an unusual concept and the subject of such abuse by complainers that we do think that a financial incentive or disincentive is required. Ideally this should be related to the cost in processing a complaint that is unsuccessful but as a first step any financial penalty would be of assistance in deterring unjustified complaints by third parties.

Other suggestions

1) In addition to exclusion of "vexatious" and "frivolous" "totally without merit" complaint there should also be excluded, (in relation to third party complaints only) complaints where the Solicitor is simply doing his job. The current test of whether the complainer has been affected by the Solicitor's actings is far too wide. If a Solicitors letter or cross-examination etc does not affect another person then the Solicitor is not doing his job!

The Solicitor's job is to represent his own client and that may involve telling another person truths that the other person will not like. Cross-examination by a Solicitor frequently is designed to challenge a witness's account or truthfulness and has to be robust. Therefore excluding complaints about the Solicitor doing his job would assist.

2) Also "totally without merit" is very difficult to demonstrate and a new wording could be say, "without substantial (and demonstrable?) merit". Do not forget that third parties can sue the solicitor if they can prove their case but the Complaints process main purpose is to ease complaints by the client not a third party and the two should not be equated.

Points raised by James McCann - Chairman of LDU

1. IPS awards and compliance by "set-off,.

The right of the Solicitor to exercise a right of "set-off" was generally accepted by the Law Society of Scotland (LSS) under the former complaints regime although it never needed to be determined by a Court judgement so far as we know. It is a general matter that applies not just to Solicitors but to anybody in a debtor and creditor relationship and is an invariable aspect of business dealings at common law and under a very old Compensation Act.

The basic idea of course is that if the Solicitor is owed money by the client then any IPS award should be set off so as to reduce the amount that the Solicitor has to pay or to reduce the amount which the complainer has to pay to the Solicitor.

This is at variance with SLCC policy document in paras 4.45 to 4.57. This appears to be ultra vires of SLCC. It is difficult to see why SLCC should want to remove or limit such a common sense and time honoured device as set off. Indeed in mediation cases the complaint issue and the claim for balance of fees are incorporated as natural parts of the same discussion and that is certainly so in the vast majority of conciliations that are reached so as to settle a complaint even before it comes to SLCC.

2. Anonymous committees.

There are still anonymous committees sitting on determination of service complaints. Under the former complaints regime LSS published the people who sit on various committees. The new SLCC procedures appears to have taken a step back.

An SLCC Case Investigator (who is indentified) will often produce a commendably detailed and careful analysis of the file and find no basis for criticising the Solicitor. It can be infuriating when (after the Solicitor through his advisor accepts that recommendation as a sensible and practical way of dealing with the case) you can suddenly receive from an anonymous committee an unexplained decision which reverses what the Case Investigator has done. Often when that new and adverse view appears in the form of a draft determination an advisor might try to change it but it is too late.

The LDU do not think there is any place for anonymous committees in a modern regulatory system. We frequently hear the term "transparent" policies and procedures and this has to be a cornerstone of any fair and impartial complaints service

3. Hybrid complaints.

The method of dealing with these is absurd.

The problem is that there is a complete lack of sift at the point in time when cases are going to LSS. The Act provides for an appeal but this has to be taken back at the beginning of the whole procedure when the matter comes through the single gateway at SLCC.

A client could put in a list of 10 to 15 headings of complaint of which two or three are deemed potentially "hybrid". It makes no sense at all to be appealing the admission of any conduct elements at that stage when they are only a "add on" to the whole list of service issues and where on any view the service issues are going to be admitted for consideration.

Once the service issues are resolved there is then the hybrid issue having to go all the way through the LSS system as they were seen at the original point of admission (perhaps a year or so before) as having some conduct element. It is expensive for LSS and indeed for the LDU to pay for a process which (assuming all the service headings have been dismissed in the first place) seems hardly likely to produce a conduct issue for LSS. Surely the construction of a conduct (sift) at the point in time when the supposed conduct issues are actually going to LSS could be devised and constructed.

4. Duty to liaise and consult

We have concerns that Section 5 of the 2007 Act imposing a duty on the SLCC and LSS to liaise and consult is not visible and not being maximised.

Section 5 can only be construed as intending a careful process at the point of admission of a conduct issue against the Solicitor and effectively a duty to sit out non complaints.

END OF PAPER

FRIENDS TOGETHER - LEGAL DEFENCE UNION & ‘INDEPENDENT’ REGULATOR:

The Legal Defence Union’s briefing to the Scottish Legal Complaints Commission is part of a history where the LDU and the SLCC have met to shape policy.

An earlier investigation by Diary of Injustice into dealings between the Scottish Legal Complaints Commission and the Legal Defence Union, -  linked to blocked criminal prosecutions of legal aid fraudster lawyers and the suicide of a married Oban family man in the SLCC’s 2009 report into the Master Policy, revealed a series of cosy meetings between the regulator & pro-lawyer lobby group at expensive Edinburgh hotels which the heads of both organisations agreed to keep off the record and away from public gaze. Read more here: Investigation reveals Scottish Legal Complaints Commission's links, secret 'off the record' dealings with lawyers lobby group Legal Defence Union

Legal Defence Union helped negotiate away Legal Aid complaints against soliictor accused of nearly £700K claims. The Legal Defence Union has also found itself in the media spotlight during an investigation into Niels S Lockhart, a Kilmarnock sole practising solicitor who scooped nearly £700K of legal aid funds in three years, and was only stopped after the Scottish Legal Aid Board filed complaints to the Law Society of Scotland. The Legal Defence Union ultimately brokered a secret deal between SLAB and the Law Society which allowed Lockhart to remove himself from the legal aid register.

Niels Lockhart was the subject of lengthy investigations by the Scottish Legal Aid Board which were uncovered by Diary of Injustice & the Sunday Mail newspaper, reported earlier here : One law for lawyers : Secret Report reveals Legal Aid Board, Law Society & Legal Defence Union ‘cosy relationship’ in Lockhart case

The Legal Defence Union then intervened again when the Scottish Legal Complaints Commission received complaints against Niels Lockhart, featured in an article here: SCANDAL : Legal Defence Union intervene in SLCC investigation over £670K Legal Aid lawyer who made Pensioner HOMELESS, STARVED to pay legal bills

Diary of Injustice also published the Scottish Legal Aid Board’s S31 complaint report on Niels Lockhart to the Law Society of Scotland, also obtained after a Freedom of Information disclosure, here : SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART