LOOKING AFTER LAWYERS: Scotland’s THIRD attempt in 20 YEARS at reforming complaints against lawyers is doomed to fail at the hands of vested interests - but there is a Scottish Government consultation you can all participate in - for purposes of PR & distraction politics

Clients, their lawyers, & complaints reform. IN THE past TWENTY years since the Scottish Parliament came into being, there have been two earlier attempts at creating a transparent, independent body to investigate complaints against the legal profession.

As many readers will be well aware, both previous attempts at reforming self regulation of lawyers in Scotland failed miserably - after two Justice Committee probes of how the legal profession regulates itself.

It was inevitable, that the combined vested interests of Scotland’s legal profession – the Law Society of Scotland, Faculty of Advocates, along with all their sub-groups, backed up by the judiciary - lobbied to remain in charge of looking after their own.

And, Scotland’s legal profession did exactly that – looked after their own.

Headline after headline, investigation after investigation, and even when BBC Scotland deigned to come along in 2014 with “Lawyers Behaving Badly” - albeit using fantastical cases resembling dubious, ever altering cave paintings carved in fossilised stone from the Jurassic age to put their point across - about dodgy legal regulators looking after their own rogue lawyers – nothing changed.

Yes, it is true – the Scottish Legal Complaints Commission (SLCC) came along in 2008 – as a response to an ‘extensive’ probe by the Scottish Parliament’s Justice 2 Committee in 2006 of complaints against lawyers and how the Law Society of Scotland ‘handled’ clients & consumers who complained against the legal profession - to the point of destruction.

However, twelve years on from the creation of the Scottish Legal Complaints Commission, anyone with a serious & geniune complaint who has used it, knows the SLCC as more of a Cayman Islands front company for lawyers to look after their own, rather than the allegedly ‘independent’ SLCC was created and put in place by civil servants who had little clue or knowledge what they were actually doing.

Sadly, the Scottish Legal Complaints Commission spent the last twelve years mirroring the work previously done by the Law Society of Scotland where lawyers were protected time & again, while clients were often targeted by the legal profession after complaints had been submitted to the ‘independent’ SLCC.

In any case, there is now a third attempt at reforming complaints against lawyers, and you can participate in it.

On 23 December 2020, the Scottish Government published the latest consultation on reforming complaints about the legal profession - along with a questionnaire for those who like that sort of thing to fill out, and send back in the forlorn hope your views and experiences will be taken into account.

You can download the Scottish Government consultation documents here: Scottish Government Consultation: Amendments to Legal Complaints (pdf) and here Respondent Information Form and Questionnaire (docx)

The details are as follows:

Complaints against lawyers and legal firms in Scotland: consultation

Published: 23 Dec 2020

This consultation sets out proposals and seeks views on potential improvements to the legal complaints system, within the current legislative framework of the Legal Profession and Legal Aid (Scotland) Act 2007.

The handling of complaints is one of the most important parts of any regulatory system. It is crucial that users of legal services have access to an efficient, effective and fair process for dealing with their complaint. Equally, legal professionals rely on a complaints system which is efficient, effective and can resolve complaints in an impartial manner.

There is a compelling case for the consideration of amendments to the current regulatory framework for dealing with complaints that would seek to improve the way in which the legal services complaints system operates.

The objectives behind these proposals

This Consultation seeks views on whether these proposals would meet the objectives of:

1. Reducing the overall time taken to deal with complaints.

2. Achieving greater proportionality in the complaints system, allowing the SLCC to identify earlier in the process which issues are more likely to require investigation.

3. Reducing the cost of the complaints system.

4. Continuing to ensure an independent and fair system.

5. Providing greater flexibility in the system.

The changes proposed in this paper seek to build on previous changes made in 2014[1] and are based on 10 years’ working knowledge of the current legislation and the experience of the current system.

The current proposals in this Consultation on which views are sought, and which are intended to have a cumulative effect in meeting the objectives, fall into three categories:

1. Changes to the process of complaint categorisation;

2. Changes to the process of complaint investigation, reporting, determination and conclusion of cases; and

3. Changes to the rules for fee rebates.

The proposed changes listed at 1 and 3 can be viewed as standalone amendments but those listed at 2 should be viewed as a package of amendments in order to gain the maximum impact from the changes.

The proposals - a summary

The aim of the proposals detailed below is to explore options to create a more flexible and proportionate complaints system, that will be more efficient yet just as effective, if not more so. Views on whether these proposals address stated frustrations of those who have been involved in the complaints system, who often perceive it to be time consuming and overly complex, are also sought in response to this consultation.

Why is this important?

Those who make or are subject to complaints in respect of legal services have indicated that they would wish for a speedy, robust and proportionate response to each complaint. While all complaints are equally important, there is a recognition that not all complaints are the same. Those who manage the complaints process, as well as many of those who have experienced it, have stated that they consider the current statutory framework insufficiently flexible to enable the process to be adapted to the specific subject of the complaint in each individual case.

While a one-size-fits-all-approach provides consistency in the application of the complaints process, there is an argument that this does not always lead to an efficient system, with the result in the current system that the end of the complaints process can often be some time away from the time of the original incident that led to the complaint. This can be unsatisfactory for all of those involved in the process. These proposals are intended to reduce this time period and improve efficiency while continuing to maintain a robust and fair system.

Costs

The cost of the legal services complaints process administered by the SLCC is met by way of levies on the legal profession. These take the form of an annual general levy paid by all legal services providers[1] as well as a separate complaints levy[2] which is payable only by those legal professionals who are subject to a complaint which is upheld.

Should the proposals set out in this Consultation be taken forward then they will likely take time to be fully implemented. There is also likely to be a cost implication for implementation. Depending on the range of amendments ultimately decided to be taken forward, implementation in year one is likely to have associated costs in terms of changing rules, process and IT systems. These costs will be borne by the SLCC and it is not presently expected that these will require an increase in funding to either of the above levies. However, in the first full year of operation, and likely after set-up costs are offset, the proposed changes in this Consultation could lead to longer term savings.

A. About this Consultation

The objective of this consultation paper is to offer an opportunity for targeted views to be gathered on the technicalities of making specific changes to the legal complaints system in Scotland.

The main proposals relate to possible changes to the categorisation of complaints to introduce hybrid-issue complaints as well as changes to the processes of assessment, investigation, reporting, determination and conclusion of complaints. Possible changes to the rules on fee rebates are also proposed.

Responding to this consultation

The Scottish Government are inviting responses to this consultation by 20 February 2021.

Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/iustice/amendments-to-legal-complaints/. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 20 February 2021.

If you are unable to respond using our consultation hub, please complete the Respondent Information Form to:

Access to Justice Unit Scottish Government Justice Directorate St Andrew’s House Edinburgh EH13DG

Or by email to: LegalServicesRegulationReform@gov.scot

An earlier report on the Esther Roberton review, and how it began, is here: LOOK AFTER THE LAWYERS: Law Society proposals to pro-lawyer legal review seek to reclaim control of regulation & complaints, appoint ‘window dressing’ ombudsman & criminalise ‘misuse’ of the term “lawyer”