The Law Society has a statutory duty to investigate conduct complaints which are referred to it by the SLCC in terms of the Legal Profession and Legal Aid (Scotland) Act 2007. There is scope for the situation to arise whereby our ability to investigate and determine those complaints is hindered by the inability of the solicitor respondent to engage with the investigative process by virtue of his or her state of mental health, or severe physical impairment.
Please read our drop down menu below for further information on the policy and process.
The Society obtained legal advice in the form of an Opinion from Senior Counsel in June 2015, which concluded that it has the discretion to either suspend an investigation, or to continue with it in such circumstances.
This policy sets out the considerations which ought to be taken into consideration by the Society in deciding whether an investigation ought properly to be suspended where a solicitor respondent (or an agent on his or her behalf) has indicated that the respondent is unable to fully participate in the investigation as a result of issues of mental health or severe physical impairment.
The Society must give careful consideration to all relevant factors before exercising its discretion to either suspend an investigation, or to proceed with an investigation without the full participation of the solicitor. In particular, the Society must consider the following factors:
- any medical evidence relating to the solicitor's health;
- the medical prognosis (including the question of whether a delay in the disciplinary process may impact adversely upon the mental or physical health of the solicitor), and the likely timescale for any recovery by the solicitor;
- (a) whether the solicitor has, at the stage the question of suspension arises, already provided a response to the complaint; or (b) if, at the point at which the question of suspension arises, the solicitor has not yet provided a response to the complaint, whether it may be possible for a representative or other party eg. a business partner on his or her behalf to do so;
- the extent to which the full participation of the solicitor is required in order to complete a fair investigation (including the question of whether the principal evidence as to the facts of the matter will be the testimony of the solicitor, or existing documentary records etc);
- the seriousness of the complaint, and of the potential sanctions which may be imposed upon the solicitor if it is made out;
- the impact, if any, upon the complainer or any other party by a delay in the investigation by virtue of its suspension;
- the period of time which has already elapsed since the alleged conduct event and/or the point at which the complaint was made;
- the public interest;
- the interests of the profession.
The weight to be afforded to each factor will depend on the particular circumstances of the complaint.
Where, in the course of a conduct complaint investigation, a solicitor respondent, or another party on that solicitor's behalf, has intimated that he or she is unable to fully participate in the investigative process by virtue of issues of mental health or severe physical impairment, the procedure which should be adopted by the Reporter to the Professional Conduct Sub Committees (Reporter) is:
- Analysis of the situation and preparation of a summary of the circumstances against the preceding factors for retention on the investigation file.
- Summary to be discussed with a member of the Management Team.
- Where the manager is not satisfied that the investigation can be conducted fairly without the full participation of the solicitor, the investigation will be suspended, and the normal suspension policy will then apply.
- Where the manager is satisfied, having regard to all the preceding factors (and having documented a consideration of those factors), that the investigation can be conducted fairly without the full participation of the solicitor, then he or she may exercise the discretion to proceed with the investigation.
- If the investigation is to proceed, the Reporter will write to the solicitor (or his or her representative) confirming that a decision has been taken to proceed with the investigation. The communication will set out the reasons for the decision, and will also make it clear that the solicitor has the right (where that right exists) to make a handling complaint to the SLCC in respect of the decision.
- The Reporter will continue to monitor the position and will review, with a member of the Management Team, the decision to continue with the investigation if there is any intimated change in the solicitor's state of health.