Lawyers regulator proves no deterrent to poor legal services. SCOTLAND’S ‘independent’ regulator of legal services has admitted complaints against rogue solicitors & law firms have again risen in the past “challenging year” according to the latest Annual Report 2016-17 of the Scottish Legal Complaints Commission (SLCC).
The SLCC’s past year was marked by the Anderson Strathern appeal, in which Court of Session judge Lord Malcolm – real name Colin Campbell QC - ruled unlawful the SLCC's previous practice of classifying certain single issue complaints as hybrid (raising issues of both service and conduct).
However, an investigation of the ruling by Lord Malcolm – who is also a Privy Councillor – revealed a top QC who was identified in complaints relating to the acceptance of £5,000 a time cash payments and accusations of misrepresenting clients in a case directly involving Lord Malcolm - escaped investigation as a result of the same Court of Session ruling on 31 August 2016.
Earlier this year, the SLCC was branded a “toothless waste of time” by Alex Neil MSP (SNP Airdrie and Shotts) – who called for major reform of the Scottish Legal Complaints Commission after a Sunday Mail investigation revealed the SLCC refused to investigate serious complaints & cash payments involving ‘top’ planning law QC John Campbell (67) of Hastie Stable & Trinity Chambers.
Speaking to the Sunday Mail, Alex Neil said: “These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change.”
Mr Neil continued: “Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.”
“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”
A full report on the John Campbell case impacted on by Lord Malcolm’s ruling can be found here: CASH ADVANCE: QC says ‘Can I have £5k cash on the way to the Law Society?’ - MSP calls for reform of ‘toothless’ Scottish Legal Complaints Commission as regulator turns blind eye on Advocates cash payments scandal.
Further litigation occurred with the Law Society of Scotland over the SLCC's power to then reclassify cases, in which the court eventually found for the Legal Complaints Commission but resulted in a large number of complaints being suspended, with no progress made until the ruling in June.
Over the year, complaints received rose from 1,132 to 1,155, up 2% on top of the previous year’s 12% rise.
However, an analysis of the complaints statistics, and contact with persons raising complaints with the pro-lawyer Scottish Legal Complaints Commission reveal the SLCC is more often than not – too eager to knock back complaints against solicitors – in a similar manner once practiced by the Law Society of Scotland.
In the past year, a total of 414 cases were accepted for conduct or service investigation, or a combination of the two (previous year 408), and 171 (compared with 226) were deemed ineligible as time barred or being "frivolous, vexatious or totally without merit".
A further 251 cases (previous year 188) were resolved, withdrawn or discontinued without a formal investigation.
Solicitors accounted for 410 of the complaints accepted while 4 of the cases related to members of the Faculty of Advocates.
However, this year, the success rate of mediation was much lower – indicating perhaps complainants have become wise to a process dubbed as “rigged” by some, after it was discovered some ‘independent’ mediators have connections to some of the law firms facing complaints investigations.
In the past year, mediated resolutions were achieved in only 27 complaints (44 the previous year), a lower success rate than previously at 58%.
Sixty three cases were resolved during or at the conclusion of the investigation stage (down from 128), and the number receiving a final determination by a committee of commissioners fell from 102 to 95, of which 44 (down from 58) were upheld in whole or part.
The number of investigations in hand at the year end rose from 664 to 807, having jumped from 473 at the start of the previous year.
Residential conveyancing was again the most frequent area of complaint, at 22% of those received, closely followed by litigation (21%), then executries, wills and trusts (14%), family law (10%) and crime (7%). Commercial property and leasing accounted for 4%, as did "personal conduct". Other categories of work, each comprising fewer than 3% of complaints, accounted for the remaining 18%.
Regarding the nature of the complaint, however, failure to communicate effectively was a clear leader at 26% (but down from 43%), followed by failure to advise adequately (20%, up from 14%), failure to provide information (14%, down from 15%), failure to prepare adequately (11%, up from 6%), failure to follow instructions (10%, up from 6%), and delay (unchanged at 8%). Other categories made up 6% of cases.
The accounts for the year, also published today, disclose a net operating loss up from £114,000 to £194,000, though income rose from £2.714m to £2.763m. Net assets fell from £675,000 to £421,000.
This year the current Chair, Bill Brackenridge, comments on coming to the end of his statutory term after five years as well as this year’s performance: “the SLCC has sought to drive efficiency within the current statutory process whilst making bold calls for reform. This year we were pleased to see the Scottish Government announce an Independent Review of the Regulation of Legal Services, and we will continue to contribute to work to improve the regulatory and complaints system for consumers and lawyers”
“This year complaints against lawyers continued to rise, a further 2% on top of 12% last year. We recognise that complaints form a tiny proportion of overall transactions in which lawyers support clients, but increasing case load continues to be a key factor in performance and costs. This year we have also seen a continuing trend towards more complaints entering the later stages of our process. To tackle this we’ve worked to support consumers and the sector with guides to reduce the common causes of complaints.”
SLCC Chief Executive Neil Stevenson added “this has been a challenging year, with significant litigation that has driven delays and costs and which was outwith our control. We are delighted the court upheld our position, and hope we can now move beyond some of these challenges to work with others in the sector to improve confidence in regulation.
On a personal level one of the organisational achievements we all contributed to, and which I am most proud of, is a significant improvement on our staff engagement survey results. I’m also delighted that we are in the rare position of gender pay parity.”
In the past NINE years since the Scottish Legal Complaints Commission was created in 2008, the Law Society backed ‘independent’ regulator of complaints against legal practitioners in Scotland – including solicitors and advocates – has more often than not seen year on year rises in complaints while becoming involved in protracted orchestrated arguments with lawyers over funding for the legal quango.
In reality, funding for the SLCC – running at around £3million a year - is secured from a client sourced complaints levy – where hikes in solicitors legal fees to clients & consumers are used to pay for the upkeep and operation of the Scottish Legal Complaints Commission.
Since 2008, the SLCC has received nearly £30 million of client sourced funds - yet it is now clear the pro-lawyer quango has had little impact on the generally poor standards of expensive legal services available in Scotland.
Currently the Scottish Legal Complaints Commission is involved in lobbying against a Scottish Parliament investigation into self regulation of the legal profession, a full report on this can be found here: LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services.
The SLCC, along with the Law Society of Scotland and other legal interests have made submissions to the Scottish Parliament’s Public Petitions Committee calling for MSPs to hold off on hearing petitions calling for independent regulation – until a Scottish Government review on regulation of legal services reports back at the end of 2018. The ‘independent’ review, is in actuality being run by lawyers.
ANOTHER DAY IN COURT – Unidentified Law firm accused in client complaints fails in bid to overturn investigation
The Court of Session recently ruled in favour of the SLCC in refusing an application by a firm of solicitors for leave to appeal one of the Commission’s decisions. The application came from a firm seeking leave to appeal a decision that a number of issues of complaint were accepted as eligible services complaints and were not frivolous, vexatious or totally without merit. It was unusual in that only some issues of complaint accepted were being appealed.
The full findings – by Lord Glennie are available here: NOTE OF REASONS delivered by LORD GLENNIE in the application for leave to appeal by X LLP AND OTHERS (Appellant) against SCOTTISH LEGAL COMPLAINTS COMMISSION (Respondent).
However, it should be noted the Court ruling does not identify the law firm involved.
The SLCC’s eligibility determination that some issues of complaint should be accepted for investigation represents what is essentially a sifting function to establish whether issues of complaint require investigation. The Court endorsed the already established view that at this stage there is a low bar for accepting issues of complaint, Lord Glennie’s Notes of Reasons stating “the Commission has to decide in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if it decides the complaint is any or all of these things, it must reject the complaint and notify the relevant parties. That is a high test to be applied or, to put it another way, is a low threshold to be crossed.”
Mark Paxton, one of the SLCC’s Case Investigation Managers, explained “there can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute. We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage. We know others can think the eligibility decision is an early indication of eventual substantive outcome, which is not the case - it is simply a decision that matters need formally investigated to have sufficient information to make a decision. We are also aware that, for practitioners, the fact that this is a formal “decision”, appealable to the Court of Session, suggests that it is somehow already a stain on the practitioner’s record – which again is just not the case.”
Lord Glennie went on to reiterate that “the nature and extent of the investigation to be carried out by the Commission, and how they go about it, is pre-eminently a matter for the Commission itself.” Having considered that there was no basis for establishing that the SLCC had erred in law or acted irrationally the Court refused leave to appeal the decision.
What was also highlighted in this case was the time and resource expended by the SLCC in carrying out this sifting function. The Court also made reference to the detail in which the SLCC had dealt with this determination, stating “The Commission’s decision in the present case is very fully reasoned… The decision deals with each complaint individually and over a number of paragraphs”.
The resources expended by the SLCC in relation to appeals bears a significant financial cost to the organisation. In this particular case, costs will be recovered following the decision of the Court to award expenses. However such an award is unlikely to recompense the full cost of all work done in relation to the appeal, and the process of contesting appeals continues to be a significant factor which the SLCC has to contend with in managing its budget.
Neil Stevenson, CEO added: “The expense of appeals has been a key driver of increasing cost in the last two years. Looking at other complaints bodies and ombuds it is very unusual for a right of appeal, especially to such a senior court, to be provided for in a complaints process on a decision simply that something needs investigated. Our current proposals for statutory reform recommend that a more proportionate approach should be considered.”
The SLCC itself was created at a cost of over £2 million pounds of public cash in 2008 – by a Scottish Government team led by Angela McArthur - who was since appointed as Chief Executive of the Parole Board of Scotland from 2009 to present day.
Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission - A history of pro-lawyer regulation.