Only privileged material can be kept from SLCC: court
The Scottish Legal Complaints Commission has the power to recover all material it considers may be relevant to a complaint, other than that covered by legal professional privilege, the Inner House has ruled.
The court gave its decision in a follow-up to an earlier ruling that s 17 of the Legal Profession and Legal Aid (Scotland) Act 2007, which gives it power to examine documents in a legal practitioner's possession, did not entitle the Commission to recover material subject to legal professional privilege (news report here).
At a by order hearing following the initial decision, the solicitors argued that the court's order should be expressly confined to such material as was relevant to the complaint under investigation. Intervening, the Law Society of Scotland and Faculty of Advocates argued that only a court order, as opposed to a s 17 notice, could oblige the recipient to deliver material subject to a solicitor's general duty of confidentiality regarding the client's affairs. Furthermore, a solicitor should not be required to produce material other than that relevant to the specific complaint.
Delivering the opinion of the court, Lord Malcolm said the Commission was invested with a discretion as to which documents it set out in a s 17 notice. The solicitors' earlier challenge was limited to the apparent obligation to give up legally privileged material, on which the court has ruled in their favour; there was no suggestion that the notice was flawed beyond that.
"We are not persuaded that the court’s order should be qualified as suggested by the solicitors", Lord Malcolm stated. "That would place the decision on relevance in the hands of those subject to the complaint. That would be an odd state of affairs."
On the interveners' submissions, he continued, "service of a s 17 notice relieves the practitioner of the general duty of confidentiality. This is in accordance with the words used in the legislation and with the regulatory regime as a whole... There is no need for a court order before such a duty is overridden".
The judge added in conclusion: "Before leaving the matter we wish to say that the court expects the Commission and practitioners to act in a cooperative manner when issues of this kind arise. For example, if a solicitor subject to a third party complaint considers that the Commission is seeking material unrelated to the complaint or is trespassing on legally privileged material, there should be a professional discussion of the issues with a view to identifying a satisfactory method of resolving the situation which balances the client’s and the Commission’s respective interests. Section 17 notices, and even more so court proceedings, should be exceptional."
Welcoming the decision, the Commission said: "The SLCC was set up to deliver an efficient and effective complaints service. That can only happen if solicitors abide by their regulatory duties to provide files and responses to the SLCC when required.
"This decision makes clear to the profession that a request from the SLCC for information is one they must comply with, including in cases where the complainer is not the client. Lawyers can do so in the knowledge that the court recognises the legislation setting up the SLCC overrides their duty of confidentiality. We can also reassure lawyers that the SLCC will act to protect client confidentiality in the way it handles such information, given the public interest in the SLCC being able to investigate complaints thoroughly and fairly."
Murray Etherington, President of the Law Society of Scotland commented: "The Court of Session has considered the concerns we raised around confidentiality. The opinion provides a clear direction on what is expected of solicitors in relation to third party complaints to ensure that they can be properly investigated. We are pleased that the intervention has upheld the importance of legal professional privilege.
"Following today’s opinion, we will review our guidance for our members."