TRENDS IN LAW: Legal services regulator SLCC calls for transparency over Law Society complaints procedures allowing lawyers to investigate & prosecute themselves

Lawyers investigating their own criticised by regulator. LESS than a week after the Scottish Legal Complaints Commission (SLCC) announced Law Society of Scotland insider Neil Stevenson as their latest Chief Executive, the pro-lawyer regulator has released a report calling for more transparent processes in the Law Society’s handling of complaints where lawyers investigate themselves.

The report - compiled before the Law Society took back control of the ‘independent’ SLCC last week - analyses trends in how the Law Society of Scotland handle conduct complaints about solicitors from 2009 to 2014.

Conduct complaints about Scottish solicitors: Trend analysis report, draws attention to trends in:

the numbers of conduct complaints;
the timescales involved in investigations; and complaint outcomes.

It also covers the two different outcomes available to the Law Society of Scotland’s Professional Conduct Committees when they uphold a conduct complaint - Unsatisfactory Professional Conduct and potential Professional Misconduct.

The report reveals that although conduct complaint numbers and timescales are generally decreasing, on average, hybrid complaints – those which incorporate elements of both conduct and inadequate service – take 2 years to be dealt with.  This increases to 3 years if a prosecution against the solicitor for Professional Misconduct is then raised at the Scottish Solicitors’ Discipline Tribunal.

Whilst the number of decisions being made by the Law Society of Scotland and the number of complaints upheld is steadily increasing, the level of compensation, fines and training orders remains low.  Compensation, fines and training orders are all available as sanctions when the Law Society of Scotland Committees uphold a complaint as Unsatisfactory Professional Conduct.  Although there is a tariff and written guidance relating to compensation, no guidance exists for levels of fines. Neither the compensation guidance nor the Unsatisfactory Professional Conduct decisions are made available to the public.

If the complaint is upheld by a Committee as potentially being Professional Misconduct, the Law Society of Scotland appoints a fiscal (usually a solicitor) to prosecute the solicitor named in the complaint at the Scottish Solicitors Discipline Tribunal. In at least 13 instances, the fiscal referred the complaint back to the Committee for the decision to be reconsidered. The SLCC said they question whether it is right that the Law Society of Scotland Committee subsequently revisits its decision – based on the advice of one individual, the fiscal.

In the report the SLCC recommends that the Law Society of Scotland:-

* Considers fast-tracking certain types of complaints.
* Continues to work with the SLCC to improve the effectiveness and efficiency of complaint handling, particularly in relation to hybrid complaints.
* Reviews the consistency of sanction awards.
* Revises and publishes written guidance and/or a tariff for Unsatisfactory Professional Conduct sanctions.
* Considers publishing information in relation to Unsatisfactory Professional Conduct decisions.
* Reviews the involvement of the fiscal in the determination process and remitting complaints back for secondary decisions.

The report follows a previous report on trends in service complaints.

Under the Legal Profession and Legal Aid (Scotland) Act 2007, the SLCC is the ‘independent’ single gateway for complaints about solicitors and other legal practitioners in Scotland, complaints about conduct are then referred to the professional bodies to investigate – leading to lawyers investigating their own colleagues – even when evidence of law breaking is uncovered.

In addition to investigating complaints about inadequate service by solicitors and firms, the SLCC – which has cost Scots clients a staggering £20 million plus since 2008 - has a role in investigating “handling complaints” – complaints about the professional bodies’ investigations – and in monitoring trends in complaints.

The SLCC has done little to curb the excessively pro-lawyer conduct of Law Society investigations and has had little effect at the Scottish Solicitors Discipline Tribunal (SSDT) – at one stage being criticised by the SSDT for not presenting enough cases for prosecution.

DODGE GUIDE FOR ADVOCATES: ‘Independent’ legal regulator launches guide for Faculty of Advocates - on how to deal with allegations of poor legal services & dodgy court performances

Regulator's guide for advocates written by advocates.. ADVOCATES who face complaints over poor provision of legal services & sub par performances in Scotland’s courts now have a new weapon in dealing with complaints - in the form of a ‘help guide’ on how to deal with dissatisfied clients.

The nine page booklet, issued yesterday by Scotland’s ‘independent’ legal regulator – The Scottish Legal Complaints Commission (SLCC) - was developed with the co-operation and input of the advocates own lobby group - the Faculty of Advocates.

SLCC CEO Matthew Vickers welcomed the guide, saying: “Improving standards of complaint handling and service is an important part of our work. We’re pleased to see the interest shown by members of the Faculty of Advocates in the guide we’ve produced.”

The guide, published below, covers six basic principles of complaints handling and three steps to effective complaint handling.  It also includes an example of a model complaint handling process for Scotland’s highly paid, mega earning advocates.

However the guide’s references to transparency & fairness appear far from the reality of how the legal profession deal with complaints against its own in the environment of self regulation – where on occasion, advocates have used law firms to threaten clients who make complaints about their conduct. In at least one instance known to the media, an advocate even used Police Officers in an attempt to escape a complaint.

The guide states: At the outset, the approach to the complainer should be empathetic and not defensive - a defensive response will usually prove counter-productive. Try to see the complaint from the client's perspective and engage openly, demonstrating an understanding of the issues which the complainer has raised. Bear in mind that it may have been difficult for the complainer to raise the matter by way of a complaint, particularly where they are emotionally involved.

It then goes on to claim: To achieve and maintain credibility it is important that the complaints process is transparent and fair. Complaints should be dealt with in a consistent approach which is, at the same time, proportionate to the complaint. The response to the complaint should be based on the facts surrounding the matter complained of rather than on assumptions. Each individual advocate is responsible for handling any complaint against him or her, but communications may be passed through Counsel's Clerk. Guidance can also be obtained from a Faculty Office Bearer or from the Dean's Secretariat.

A list of ‘dos and don'ts’ to advocates on the run from complaints contain the following suggestions:

• Be alert to any expression of dissatisfaction which should be regarded as a complaint, or at least a potential complaint, and treat it as such. Remember that this could be received by your Clerk or a member of FSL staff dealing with an outstanding fee.

• Engage with the client to understand the issue at hand. Do this through your Clerk if you wish to maintain some distance.

• Be empathetic with the complainer, be aware of the impact which the issue may have had on the complainer, including the emotional impact of bringing the matter to your attention.

• Don't avoid the problem or hope that it will go away; always respond to a complaint.

• Don't delay dealing with the complaint - the last thing you want is an additional complaint about concerns not being dealt with in good time.

Finally, don't ignore complaints from third parties - the SLCC can accept complaints from parties other than a practitioner's own clients and you need to treat these as seriously as a complaint from your own client, although it is important to bear in mind any confidentiality issues

Commenting on the guide, former MSP and now Vice-Dean of Faculty Gordon Jackson QC said: “As the SLCC indicated in its most recent annual report, there are very few complaints about advocates. As a result, it is helpful to have been able to produce a guidance document for those members who may not have had to deal with a complaint," said Gordon Jackson, QC, Vice-Dean of Faculty.

"The Faculty is and always has been committed to promoting the provision by its members of the highest quality legal services. It is important that the public should know that if an advocate receives a complaint, it will be handled properly and in accordance with standards approved by the SLCC. We have therefore been pleased, in the course of revising our complaints and disciplinary procedures, also to have worked very closely with the SLCC to prepare guidance for our members on complaints handling."

Vice Dean Mr Jackson - who once lost a £50K claim for slipping on ice covered pavements on Johnston Terrace in Edinburgh after temporary judge Gordon Reid QC said he had no relevant case against Edinburgh City Council – also sought to reassure the public over how complaints about advocates are handled.

He said: “The Faculty is and always has been committed to promoting the provision by its members of the highest quality legal services. It is important that the public should know that if an advocate receives a complaint, it will be handled properly and in accordance with standards approved by the SLCC.”

The guide was formally launched at an event on 8 January at the Faculty of Advocates by the SLCC’s Head of Oversight and the Dean of Faculty.  The guide follows a previous guide for solicitors.  Both guides are available on the SLCC’s website at Guidance and Advice for Practitioners pages.

Have you had a bad experience with an advocate, or made a complaint about an advocate and found the regulation system failed to deal with it? Tell us about it at scottishlawreporters@gmail.com