As the Scottish Legal Complaints Commission goes live, the Society's continuing investigatory processes are changing in line with it

The system for handling complaints against solicitors has undergone a number of significant changes in recent years, though it is now only a matter of days until the most dramatic shift yet is upon us. The need to provide information and advice to solicitors and clients will never be greater when the Scottish Legal Complaints Commission opens its doors for business on 1 October.

Yet, while the Commission has a statutory duty to advise the public about the complaints process, there is no obligation to provide a corresponding service for solicitors. With that in mind, it is worth giving an overview of how the new system will work.

The Commission will act as a gateway for all complaints against lawyers, and by mediating, resolving or determining complaints about service and sifting out those that are frivolous, vexatious or without merit. Conduct matters will be passed on to the professional organisations, though the Commission will oversee the way conduct complaints are handled as well as taking over the Scottish Legal Services Ombudsman’s current overseeing powers. 

Society’s continuing role

However, the Commission will only consider complaints about service where the business was instructed after 1 October. The Society, therefore, will continue to deal with service complaints relating to business instructed before 1 October. A one-year time limit for making complaints will apply when the Commission is fully operational.

In addition to considering those service complaints, the Society will continue to handle professional misconduct matters, with prosecutions still going before the independent Scottish Solicitors’ Discipline Tribunal. However, a new category of complaint has also been created – unsatisfactory professional conduct – which is the responsibility of the Society to investigate and decide. Unsatisfactory professional conduct falls short of professional misconduct, but carries its own sanctions – a mandatory censure and potentially a fine of up to £2,000, compensation to the aggrieved complainer of up to £5,000 or an order to undergo training, or a combination of these.

In-house system

Mary McGowan, the current Deputy Director of the Client Relations Office, explains some of the changes. “As the Society will continue to deal with service complaints where the business was instructed before 1 October, reporters will still have a role to play in handling those cases. We are incredibly grateful to the reporters for everything they’ve contributed, but felt it was time to bring in a different system in line with modern complaints-handling regimes. As a result, in-house complaints investigators will investigate and report on conduct complaints for business instructed after 1 October, making recommendations to the Professional Conduct Committee.

“Making findings of unsatisfactory professional conduct will be a particular challenge for the Society as we have no precedents or case law, so we will have to start from scratch and build up our jurisprudence. We will look at the particular circumstances of the case when judging unsatisfactory conduct. The decisions taken by the Professional Conduct Committee and on any appeals to the SSDT will help to mould the process.”

Not only has a streamlined system of professional complaints investigators been put in place to replace volunteer reporters, but a new team has also been created specifically to liaise with the Commission, offering information and advice to solicitors and the public. This team is being financed from the restructuring of the former Client Relations Office.

Mary McGowan will lead the unit as the Head of Regulation Liaison. She says: “The new regulation liaison team will provide a particularly valuable service for solicitors in the new regulatory landscape. It will give information and advice to the profession at every stage of the complaints process and about how the Commission works. We know it might be confusing when there are suddenly two organisations to deal with, but we are there to help. In fact, we will be able to do everything short of representing the solicitor – we cannot do that because of the possibility of a conduct complaint arising out of the service complaint.”

In liaising with the Commission, the new team will be responsible for dealing with any correspondence and issues that arise, for instance how to go about investigating a hybrid complaint with elements of both service and conduct.

Up to speed

Mary McGowan adds: “Solicitors and clients will have to get used to the new process – all complaints going initially to the Commission, the transfer of the Ombudsman’s powers to the new body, appeals heard before the Court of Session, and so on. But whatever the issue, we will do everything possible to help out. The Commission staff are gradually getting up to speed and we are working constructively with them. There has been some uncertainty during recent months and years but we know what we must do and are ready for the challenges that lie ahead.”

Craig Watson is a freelance writer specialising in legal affairsr

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