The Law Society of Scotland is taking legal action against the Scottish Legal Complaints Commission to settle the question of how certain complaints should be handled in the wake of a Court of Session ruling.
Nineteen separate appeals have been lodged in the court, together with a separate judicial review understood to be in order to protect the Society's position, alleging that the SLCC is acting unlawfully in cases affected by a recent Court of Session ruling, after the Society failed to persuade the SLCC to join it in asking the court to rule on a way forward for these cases.
In August this year, three appeal judges ruled as outwith its powers the SLCC’s practice of treating certain complaints as “hybrid” – raising both issues of inadequate professional service, which are investigated by the SLCC, and professional misconduct, which the Society investigates and if necessary prosecutes. The court ruled that single issues within a complaint had to be classed as either service or conduct.
While the two bodies have since been working to ensure that any complaints brought since the ruling can still be referred to the Society where necessary, they are at odds over what should happen to complaints that the SLCC classed as hybrid before the ruling was given and which were still in hand.
The SLCC set about recategorising around 200 complaints, in some cases marking them as service only instead of both service and conduct – removing the Society’s ability to investigate possible misconduct. “As the body entrusted to uphold the standards of our profession, we cannot allow this to happen”, the President, Eilidh Wiseman, said in a message emailed to all members.
In a further twist, the Society has obtained two separate opinions from Queen’s Counsel, who have advised that the SLCC does not have the power to recategorise complaints under its legislation, the Legal Services (Scotland) Act 2007. “Based on these opinions, we believe the SLCC’s approach is unlawful. It risks establishing a precedent which could, if left unchallenged, undermine the complaints system”, Ms Wiseman continued.
The SLCC however, on the basis of its own legal advice, believes it is acting lawfully. “On the basis of our legal advice we took swift and positive action to minimise the consequences on those who had made complaints and those subject to a complaint”, it said in a statement. “Early results of our approach were highly positive, with parties accepting the approach and only the Society questioning it.”
Both sides claim they have made approaches to the other to try and resolve the problem – the Society by offering to the SLCC to use the Court of Session special case procedure, under which parties can agree to put legal questions on an outstanding issue to the court for decision, and the SLCC claiming that it “made repeated offers to meet with the Law Society’s CEO and legal representatives so that we could look for a shared solution and consider options which did not require further court action”.
For the Society, the President said of the proposed special case: “We felt this was a practical, sensible and constructive way forward, and one which our members would expect.
“Over the last two months, we have actively encouraged the SLCC to work with us in this way. 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 uncertainty and delay for clients and solicitors, we have no option but to proceed with legal action.”
This was because “It is essential that we maintain confidence in the complaints handling process and have a system which is fair and effective for the solicitor and the client. Those solicitors, who are very much in the minority and who fail to meet the professional standards we set, should face appropriate sanctions. The SLCC’s approach puts that at risk.”
The SLCC said it had taken the action it did “to avoid all cases sitting on hold indefinitely”. While accepting the uncertainty created by the earlier court decision, it said “the potential risk was that there would be a small number of appeals both organisations might have had to deal with. Having taken the action we did, these have not materialised. The Law Society’s approach, however, creates certain delay, certain cost for everyone, and certain damage to confidence that the current system works”.
It described the Society’s response as “vastly disproportionate”, with the possible result that “we could very well end up back to where we started and trying to implement yet another ruling on a whole new set of current cases”.
Both sides are pressing the Scottish Government to overhaul the legislation governing the legal profession, including the complaints system operated by the SLCC.