Year of the Commission

An update on preparations for the coming of the Scottish Legal Complaints Cimmission

The Journal, January 2008, page 26

By the end of this year the Scottish legal profession will have an additional regulator in place. The new Scottish Legal Complaints Commission will mark a radical change in the handling of service complaints against solicitors and advocates.

A considerable amount of work was done last year to pave the way for the new Commission. The Society has been working alongside the Scottish Government, the interim chief executive of the Commission, the Ombudsman, the Faculty and other stakeholders to determine how the Commission will operate in practice. By the time you read this, the board members, including the chair, will have been announced.

One of the board’s first tasks will be to consult with the professional bodies on the financing of the Commission and set its budget for the first year, as required by the Act. It is worth remembering that the Scottish Government has already agreed to underwrite the start-up costs, which means the profession will become responsible for funding the Commission once it has opened its doors.

In terms of the legislation, all solicitors with practising certificates and all practising advocates will pay an annual levy to fund the Commission. This levy, set by the Commission during the budgeting process, is to be paid by the professional bodies. They, in turn, are responsible for collecting the total sum due from their members to pay to the Commission. The board of the Commission will take all final decisions on the structure and level of the levy.

A number of observations have been made about how the levy might be structured, for example between the public and private sector, or for firms carrying out different types of business. A working party is due to report to Council in January with a proposed response to the consultation. The board, as part of the budget exercise, will also have to set a case fee structure, and decide when they will be payable and how the system will be structured. One concession during the bill’s passage was that no case fee would be charged if a complaint was not upheld. However, case fees will play little part in the assessment of the year one costs.

A new approach

The Commission’s approach to handling complaints is likely to be very different to the current one. All complaints will go to the Commission for initial screening. Again, the board is likely to make an early decision about time limits for complaints. In terms of the legislation, they will also be able to sift out complaints that they consider frivolous, vexatious or without merit. In addition, they will have the power to decide that a complaint about service is premature. This means the Commission may choose not to deal with a complaint until the client has tried to resolve it with the practitioner.

At this stage, it seems likely that the Commission will adopt an approach similar to other respected modern regulators, such as the Financial Ombudsman Service and the Scottish Public Services Ombudsman. It may be helpful for practitioners to look at the websites of these organisations to see the processes they follow and how investigations are carried out.

A significant amount of information about the Commission and its method of operating will flow this year. The Society will continue to inform the profession and others, so keep reading the Journal, the monthly e-zine and our website. The website information will be updated regularly and specific enquiries can be forwarded by email. The Commission will have its own website and programme for issuing information.

Impact on the Society

Not only will the Society continue to handle conduct complaints, it will have the added responsibility of monitoring the Commission’s decisions and its impact on the profession. At the present time we cannot accurately predict what the resource and the financial impact of these changes will be on the profession.

The Society’s powers will be extended to consider “unsatisfactory professional conduct” (UPS) as well as professional misconduct. A range of potential sanctions will be available to the Society for UPS, including: censuring the practitioner; imposing a fine; awarding compensation up to £5,000; and/or ordering training or re-training. At the time of writing, a working party has been set up to review the way conduct complaints are handled, with feedback due by late spring. Matters of misconduct will continue to be prosecuted before the Scottish Solicitors’ Discipline Tribunal.

The opening of the Commission will see the abolition of the Scottish Legal Services Ombudsman. Its role will be taken over by the Commission in terms of dealing with complaints about the way in which a professional body has handled a conduct matter. As the year goes on, it will become clearer how this system is expected to operate.

The fact that an independent body is to start considering service complaints will clearly present a number of challenges for the profession. While solicitors have fully embraced the message of good client care and the need to resolve concerns at source, it will be helpful for firms and client relations partners to continue to check that the right systems are in place, now and once the Commission is up and running.

The establishment of the Commission will present challenges for the profession: it is for the profession to rise to these. However, the Commission must also earn the trust not only of the public but also of the profession. In recent years the Society has made significant progress in improving its complaint handling systems. The challenge to the Commission is not just to maintain those standards but to improve them.

Philip Yelland is Director of the Society’s Client Relations Office