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Power to whose elbow?

15 August 16

The SLCC wants to overhaul the present complaints system. Is it seeking to take more powers from the Society? It insists its approach is about getting the process right

by Peter Nicholson

The Scottish Legal Complaints Commission has called on the Scottish Government to consult on reforms to what it describes as the “complex and legalistic” system for handling complaints against legal practitioners, in a paper presented to ministers.

It wants to sweep away a system that requires different processes depending on whether the complaint is classed as inadequate professional service, unsatisfactory conduct or professional misconduct, with complaints sometimes having to restart under a different process. Instead it would “reduce the whole process to three core stages”:

  • a single investigation, with flexible options to filter out vexatious and similar complaints and allow processes proportionate to different levels;
  • determination – by the same organisation in relation to lower level issues, or by prosecution at the SSDT for conduct that may lead to removal from the profession;
  • appeal – limited to a single opportunity at the conclusion of the process.

Points proposed for consultation include whether it is time for a single independent body to handle all aspects of complaints, or at least for a single investigation covering service and conduct, and rights of appeal (including whether to the Sheriff Appeal Court rather than the Court of Session).

Instead of the present highly prescriptive Act, the SLCC wants to see a framework allowing “proportionate and targeted” regulation that would, it argues, resolve complaints faster and more cost efficiently, increase the effectiveness of redress and increase market confidence.

There should also be explored, among other issues:

  • how to ensure that compensation awarded is paid to the consumer;
  • how issues of unfair fees should best be addressed;
  • whether it is time to move from “one size fits all” regulation to focus on the areas of greatest consumer risk;
  • the appropriate balance between professional and market regulation;
  • and whether the SLCC should have the power to issue rules on how lawyers should handle complaints at first tier, including “strict liability” offences for failing to follow their internal processes.

“Start with the process”

The Journal put some questions arising from the paper to SLCC chief executive Neil Stevenson. He answered as follows:

Which current functions are you suggesting the SLCC should take over from the Law Society of Scotland/Faculty of Advocates in order to streamline the complaints process?

This is not a debate about organisations competing for a role, and to turn it into that risks everyone losing out on possible improvements. What we are suggesting is that you step away from existing organisations and structures and draw a diagram of an efficient and effective process for consumers and for lawyers. Start with that, then think how it is delivered and by which organisation or organisations. A Government consultation should focus on the public interest first and foremost, then design the solution.

What is your preferred solution to how to handle complaints about fees?

I think consumers want a one stop shop, and for lawyers dealing with one body and approach is easier – why should a complaint about the description of fees go to a different body than a complaint about the actual fees? Again, we want to see a consultation which asks consumers and lawyers about what sort of system would work for them. For this type of work an online complaints forum may even be an option, with a fast expert adjudication.

What would it mean in practice if we moved from “one size fits all” regulation to focusing on areas of greatest consumer risk?

Put very simply, conveyancing seems to be the highest risk of complaint, and negligence, and indemnity payment, and of possible fraud (holding client money, or "back to back" transactions). You might see a regulator focus more on that area – be it qualifications requirements, different insurance arrangements, different types of inspections, more structured rules, reporting requirements or any other common regulatory tool. In this data driven age it seems odd that a firm only doing employment law (which leads to very little risk) has the same cost and regulatory burden as one doing only property law – one is potentially over-regulated, the other under-regulated. We recognise, of course, that it's more complex than that, but compared to other industries we think that focus on risk and consumer detriment is underdeveloped and all of us could do some more thinking in that area.

In what respects are you seeking powers to issue directions to the professional regulators regarding standards? Does it mean that they are not fulfilling their own duty to act in the public interest? Does it encroach on the independence of the profession?

For the solicitor branch of the profession, all the current bodies that issue rules are statutory bodies set up by Government and subject to change by Government, so all rule making is influenced to some extent by Government already. The creation of these statutory bodies replaced "pure" independent profession regulation which had previously been led by local bars and national associations. The independence of the profession is vital in terms of rule of law and democracy, but that can be protected in many ways (for example, the Lord President’s current role in approving rules).

In terms of rulemaking powers, we think we have the knowledge and data around complaints to have some role in this area – when a lawyer delays responding to a case month after month, should that cost be borne by all the good solicitors who do respond? Or might you look at a rule that penalises that? You only need to look at the outcomes of the Scottish Solicitors' Discipline Tribunal to see how often those cases are affected by a failure to respond. A modern and joined-up approach to regulation might ask why that issue needs to progress through three different statutory bodies to be upheld as a failing? Why lawyers have to bear that cost? And why consumers have to wait that long? There are so many areas we might miss getting to discuss if we focus on organisations, rather than trying to create a proportionate process and regulatory framework.

Finally, you can see a couple of hostile comments from the profession added to our news report of 11 July, including a request for some figures on the outcome of appeals to the court. Are these available and do you have any other comments in response?

Appeals figures are published every year in our annual report and are available on our website, so the last ones are available here. In 2014-15 there were 11 new appeals intimated. Of appeals where the outcome was in 2014-15, five were won, one lost, 14 conceded, two were withdrawn once we had submitted answers. The year before we only had seven intimated, with only one refused and three conceded.

One of the comments compared the number of appeals we receive with the previous setup, when the Law Society of Scotland dealt with all complaints. However, this isn’t comparing like with like; since the 2007 Act came into force, more decisions are appealable and by both parties. Decisions to accept or reject complaints, for example. Previously, there was no formal route to appeal a decision by the Law Society of Scotland to accept or reject a complaint. The complainer could make a complaint to the Scottish Legal Services Ombudsman about the way the Society had handled this, but the ombudsman decision was not binding on the Society and didn’t overturn the original decision. This route was not open to a solicitor unhappy with a complaint that had been accepted for investigation.

If you look in the press section of our website, actually the recent trend is of our decisions being upheld, but you’ll also see our public comment that agrees that the Court of Session is a costly forum (and may not be the best one), and that costs will go up when the court is not willing to award costs against party litigants. It’s one of the reasons we made one of the six priorities in our call for legislative change that policy was data driven, as sometimes the perceptions of any of us (even those closely involved) will not be borne out when data are examined. I also agree the SLCC can always improve, so feedback is useful. We send a form to every solicitor and complainer at the end of a complaint, and our operating plan for this year publicly sets out some of the ways we are trying to improve our own performance.

The paper can be found at www.scottishlegalcomplaints.org.uk/reimagine-regulation

 

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