The Law Society of Scotland has announced that, to protect the public interest and trust in the legal profession, it has commenced legal action to challenge the steps taken by the Scottish Legal Complaints Commission (SLCC).
The action has been taken in order to seek clarity on how certain types of legal complaints should be handled and where the SLCC wishes to use a recent court decision to restrict the Law Society’s ability to investigate matters already referred to it for investigation.
In August, the Court of Session ruled that single issues within a legal complaint must be categorised as either service or conduct. The SLCC’s practice of classifying an issue as both, a so called ‘hybrid’ issue, was ruled unlawful.
New complaints made following the judgment on 31 August will now be categorised as either service or conduct issues by the SLCC. However, the Law Society has raised concerns over the decision of the SLCC to recategorise around 200 complaints already in the system, with many now being classed as “service only”. This was despite an earlier analysis which identified conduct issues for investigation by the Law Society as the professional body.
The SLCC’s decisions remove the Society’s power to investigate and, if required, pursue disciplinary action against individual solicitors in these cases.
The Society has also questioned the legal power of the SLCC to recategorise complaints. There is also concern that revisiting decisions already taken risks calling into question historical cases where disciplinary action has been taken.
As a result, the Society has lodged appeals to the Court of Session, questioning the SLCC’s decisions over a number of cases as well as the principle of recategorisation itself.
Eilidh Wiseman, President of the Law Society of Scotland, said: “The most recent issues arose because the approach taken by the SLCC towards the handling of hybrid issues was ruled to be unlawful. This is why it is so important for the SLCC’s response to be legally sound and preserve the integrity of the complaints system.
“The SLCC wants to recategorise around 200 complaints already referred to us as conduct matters. Reclassifying complaints as ‘service only’ means we cannot investigate and, if needed, pursue action against a solicitor to the independent discipline tribunal. As the body entrusted by parliament to protect the public interest and uphold standards, we cannot allow this to happen.
“We also have strong independent legal advice to suggest the SLCC does not have the statutory power to undertake this recategorisation work. We believe its approach is unlawful and risks establishing a precedent which could undermine the current complaints system.”
Over the last two months, the Law Society has offered to work collaboratively with the SLCC and take forward a joint Special Case to the Court of Session. This could clarify the law and agree the appropriate way forward.
Eilidh Wiseman added; “Our preferred option was to work jointly with the SLCC and seek a clear ruling on how current complaints should be handled. A joint Special Case would have allowed this. Despite the dialogue and hard work of both our legal team and the Commission’s, the SLCC has yet to agree to the principle of taking forward a Special Case. Given the legal uncertainty, steps have now been taken to ensure that the Courts will resolve the matter one way or another.
Notes to editor
The Court of Session decision in the case of Anderson Strathern vs. SLCC (CSIH 71XA16/15) was in relation to an appeal against an SLCC decision on the categorisation of a complaint.
The Scottish Legal Complaints Commission is the gateway organisation for all legal complaints in Scotland. It was set up under the Legal Profession and Legal Aid Act (Scotland) 2007 and has the power to handle service complaints against legal professionals. Conduct complaints about solicitors are passed to the Law Society of Scotland to be investigated.
Conduct and Service complaints
A conduct complaint is about a practitioner's behaviour, their fitness to carry out work and how they have behaved either in carrying out a transaction or outside of business. A service complaint is about the quality of work a solicitor has carried out during the course of a transaction.
In a service complaint matter, the solicitor may require to refund or abate fees, put matters right or have to pay compensation to the client.
For more serious matters of conduct, the Law Society will investigate the case. Following investigation the professional conduct committees, which are 50/50 solicitor and non-solicitors, decide if the matter should be prosecuted before the independent Scottish Solicitors’ Discipline Tribunal. The tribunal has a range of sanctions at its disposal including censure, imposing fines or suspension. In the most serious cases, the SSDT can strike a solicitor from the roll.
In addition to dealing with conduct complaints the Law Society also provides other client protections through its master policy professional indemnity insurance scheme which all solicitors must be part of to be able to practice. We also have the client protection fund for cases of dishonesty on the part of a solicitor or one of their members of staff, who are not covered by professional indemnity insurance.