B1: Restricting complaints
New Guidance has been developed to clarify and emphasise that solicitors should not attempt to prevent or discourage clients (or others) from exercising rights to complain to the SLCC; seek to have clients purport to agree to any disapplication or limitation of the Society’s practice rules; or seek to prevent clients from making truthful comments about the services received.
The Guidance, which is effective from 1 November 2024, emphasises that such behaviour may call into question a solicitor’s compliance with practice rules, particularly those within B1 (Standards of Conduct), or the professional principles (as defined in s2 of the Legal Services (Scotland) Act 2010).
Guidance is also now provided on the interaction of s61A of the Solicitors (Scotland) Act 1980 (Solicitors’ Fees) with other statutory or regulatory requirements.
The Guidance was developed in response to enquiries made to the Society and the increasing trend in posting online reviews of solicitors.
The full text of the Guidance is set out below. The Guidance is published on the Society’s website, in the Rules and Guidance section, as Guidance related to Rule B1 (Standards of Conduct). Links to the Guidance have been added from Rules B4 (Client Communication) and B5 (Client Relations Manager) or from existing Guidance relating to those rules.
This Guidance relates to all the Rules at B1
You should never attempt to prevent or discourage clients or others from making complaints to the Scottish Legal Complaints Commission (‘the Commission’), whether by means of provisions in your Terms of Business, or by any other means. Any attempt to do so may call into question your compliance with the Standards of Conduct (particularly but not exclusively B1.2, B1.3, B1.4, B1.7, B1.9, B1.16 and B1.17) or other practice rules or your adherence to the professional principles (see section 2 of the Legal Services (Scotland) Act 2010).
Where you have reached and implemented an agreement with a client or third party as to the resolution of a complaint, and the client or third party nevertheless proceeds to make a complaint to the Commission about the same matter, you should advise the Commission about the agreement. It is a matter for the Commission to consider what, if any, impact any such agreement is to have in relation to the Commission’s decision-making in terms of the Legal Profession and Legal Aid (Scotland) Act 2007.
Disapplication or Limitation of Practice Rules
You should never seek to have any client (or other party) purport to agree (by contractual means or otherwise) any amendment to, or disapplication or limitation of, any rule or regulation made by the Society that would otherwise apply to you or your practice unit. Rules and regulations made by the Society apply in accordance with their terms and are not capable of amendment, limitation or exclusion by operation of any agreement between solicitors (or practice units) and their clients (or others).
Any attempt to seek to have any client or third party agree to any such purported amendment, limitation or exclusion may call into question your compliance with the Standards of Conduct (particularly but not exclusively B1.2, B1.3, B1.4, B1.7, B1.8 B1.9, and B1.16) or other practice rules or your adherence to the professional principles (see section 2 of the Legal Services (Scotland) Act 2010).
Written Fee Agreements, Taxation and s61A of the 1980 Act
It should be noted that Section 61A of the Solicitors (Scotland) Act 1980 (the 1980 Act) only prevents a court from remitting a solicitor’s account for fees for taxation in the circumstances set out in that section. The provision does not prevent complaints about fees being made to the Scottish Legal Complaints Commission, or prevent or inhibit the operation of the complaints or disciplinary processes set out in the Legal Profession and Legal Aid (Scotland) Act 2007 Act or the 1980 Act. The provision does not override either the Society’s practice rules (see, in particular, rule B1.11) or other relevant legislative provisions (see, in particular, s39A of the 1980 Act).
Restricting Public Comments by Clients
You should never attempt to prevent or, save as part of the resolution of any complaint, discourage clients or former clients from making truthful public comments about the service they have received from you or your practice unit. Any attempt to do so may call into question your compliance with the Standards of Conduct (particularly but not exclusively B1.2, B1.3, B1.4, B1.7, and B1.9) or other practice rules or your adherence to the professional principles (see section 2 of the Legal Services (Scotland) Act 2010).