The Scottish Legal Complaints Commission has been granted a Court of Session order requiring a firm of solicitors to deliver relevant files and documents to support the investigation of a client complaint – the first time it has resorted to litigation against a law firm.
It has also issued a warning that other firms failing to comply with their legal obligations will in future be taken to court.
The SLCC said it had raised the action following ongoing concern over the level of non-cooperation from a significant number of solicitor firms in dealing with complaints.
Although solicitors have a statutory duty to hand over client files relating to complaints, the SLCC regularly complains that a significant number, around 40% over the last few years, have failed to do so.
It made allowances for difficulties caused during lockdown, but the issue goes back further and the level of non-compliance has remained broadly constant.
SLCC chief executive Neil Stevenson pointed out that failure to comply caused additional delays and worry for clients in hundreds of cases each year, "and calls into serious question the behaviours and ethics of a section of the profession".
He continued: “It also causes entirely unnecessary expense, running into tens of thousands of pounds, which is borne by other law firms who fund the complaints process, and it impacts the reputation of the whole profession.
"For several years we have flagged this issue in our annual reports and to key stakeholders, such as the Law Society of Scotland. We had hoped communication, engagement and education would lead to improved compliance.”
Litigation was a last resort, as it caused further expense, but "as we have not seen any discernible improvement, we’ve now made the decision that all solicitors failing to comply with the statute will be taken to court. This increases costs further in the short term, but we hope sends a strong signal that compliance with the law is not optional for lawyers."
He warned: "We have instructed counsel in two further cases, seeking to build a body of case law and test the courts' willingness to award expenses against these law firms. We are also considering naming law firms that fail to comply."
Mr Stevenson added: "I'd of course also take this opportunity to thank the 60% of law firms that do respond timeously and helpfully. Complaints can happen to any firm, and we know it can be stressful for those complained about. There are excellent examples of client care and complaint handling in the sector, and it is deeply unfortunate that some firms are letting their colleagues down by failing to engage."