1. Records to be kept (Rule B5.5.1)
It is not intended that the record keeping exercise should simply be an administrative one. Experience shows that keeping records of complaints received can assist a practice unit in identifying areas which need to be improved in the service to clients and often point up either problems with systems or the way in which a member of staff may be dealing with matters. It is considered that the Client Relations Manager of a practice unit should hold a record of all complaints received even if the practice unit itself splits into various different departments for business. That way the Client Relations Manager can get an overview of the work being carried out and where difficulties may be arising.
It is recommended that the central record follow the form set out in this template, which may be downloaded from the Society's website, certain fields of which may be populated using the standard terms therein.
Whilst practice units are free to record separately such additional information as they consider necessary for their own internal processes, the central record must show the following information:
- File reference
- Date the complaint was made;
- Description of the substance of the complaint;
- Category of personnel against whom the complaint was directed (ie. unqualified; trainee; solicitor; or principal);
- Type of business in respect of which the complaint was made;
- Action taken by the practice unit in relation to the complaint;
- Date the complaint was closed;
- Whether or not the complaint was resolved;
- Learning outcomes from the complaint.
This type of record should help a Client Relations Manager see at a glance if there is a common theme to complaints being made, or common issues that might need to be tackled; and will enable the Society to monitor trends in areas of practice which may be generating complaints. It is recommended that records of individual complaints should be retained for five years from the date the matter is resolved or closed.
The recommended format has been devised to obviate, or at least minimise, any requirement for details on the central record to be redacted by practitioners prior to delivery – the generic information recorded ought not to require to include material from which the identity or confidential affairs of a complainer could be readily derived. Practitioners will nonetheless require to exercise their judgement in that regard so as not to reveal to the Society in any disclosure of the central record any information which would otherwise be confidential or privileged. If it is necessary for a central record containing redactions to be delivered to the Society, then an explanatory note setting out why the redactions have been made should accompany it.
Records deliverable to the Society (Rule B188.8.131.52)
Where the Society requests delivery of a practice unit's central record, it should be delivered promptly within 21 days from the date on which the request is made.
2.2 Written procedure (Rule 5.5.2)
In September 2001 a protocol was published in the Journal (page 8) for handling complaints within firms. The principles set out in that protocol have not altered in the intervening years. It is believed that where a client or any person wants to make a complaint they should be given clear written information about what to do, who to contact, and how to set out the complaint. It is suggested that the written procedure should be kept as simple as possible and can be contained either in a leaflet or on a single A4 sheet of paper which can be handed or sent to a client, or sent to any other person who indicates they wish to make a complaint.
The essentials of the procedure are considered to be as follows:
1. Who should the complainer contact in the first instance if they have a concern?
It could be the solicitor a client is instructing, the departmental head or the Client Relations Manager.
2. What should they do if they are dissatisfied with the answer they receive?
At that stage should they contact the Client Relations Manager or if they have been to the Client Relations Manager they can be advised to contact the Scottish Legal Complaints Commission.
3. What information does the practice unit need from them to enable them to investigate the complaint?
4. What timescales will be involved in dealing with the complaint?
5. Will the matter be dealt with in writing or will the complainer be offered a meeting to discuss matters?
6. How will the matter be finalised?
7. Will a letter or other form of communication be sent confirming the outcome of any attempt to resolve matters or set out, if matters are not resolved, why they have not been resolved?
There is a need to be aware of the Equality Act 2010 and to vary the procedure if the complainer either has difficulty in reading or writing, or has language or other difficulties which would make communications in writing a barrier to them.
Responding to third party complaints (Rule B5.5.2)
Historically, some solicitors who have received complaints from third parties have been under the misapprehension that they have no professional duty to respond to them. That is not the case, and they should be treated as seriously as any other complaint. Responses to such complaints do, however, require to be framed subject to the duties which practitioners owe to their own clients. Regard ought therefore to be given to the following considerations:
1. It is possible that not all the information a practitioner holds on behalf of their own clients is confidential or privileged. There may be matters which are in the public domain or otherwise which can be disclosed in order to answer complaints. A practitioner may be able to refer to other sources from which information can be obtained. It is a matter for the professional judgement of the practitioner.
2. The practitioner must nevertheless act with extreme caution to ensure that any information or documentation which is confidential to their client is not disclosed to the complainer, the SLCC, the Law Society or otherwise without the specific written consent of its owner, usually the client; or a direction by the court.
3. In doing this, the practitioner should speak with their client, and explain that a complaint has been raised which they are obliged to answer. The extent to which the practitioner is able to disclose confidential or privileged information will depend on their instructions, by which the practitioner is bound. If the client agrees to disclose confidential or privileged information, the practitioner should ensure that such authority is obtained in writing.
4. In advising a client, a practitioner will require to bear in mind that many of the SLCC’s decisions are subject to appeal in the Court of Session, and that the Law Society's decisions may be subject to appeal to the Scottish Solicitors' Discipline Tribunal and the Court of Session, or judicial review, in which event information which is disclosed in the course of answering a complaint may become very public.
5. Practitioners may also wish to consider, and advise their client, of any impact a complaint may have on ongoing proceedings. Both the SLCC and the Law Society have policies which permit postponement or suspension of investigations in appropriate circumstances, one example being the prevention of prejudice to ongoing cases. It may be that any response a practitioner makes to a complaint can be more comprehensive if made at the correct time.
6. Practitioners may wish to consider whether any complaint made by a third party brings them into conflict with their own client and, if so, whether they require to withdraw from acting for them, or advise them to seek independent advice.
7. Even if a practitioner's client has instructed him or her not to correspond with a third party, the practitioner remains under a duty to deal with a complaint received from that party. The practitioner should explain to the client that he or she is under that duty, and has a professional obligation to correspond with the third party to the extent necessary to deal with the complaint.