Unsatisfactory conduct – record keeping practice

In response to an Ombudsman recommendation, the Society may from January 2003 take account of previous complaints against a solicitor when considering future complaints

The Journal, December 2002, page 9

In the Annual Report of the Scottish Legal Services Ombudsman published in July 2002 a recommendation was made to the Law Society that it should consider routinely taking account of the number of times that a solicitor’s conduct might have been thought to be unsatisfactory before determining whether, in any particular complaint, it might be appropriate to refer the solicitor to the Scottish Solicitors Discipline Tribunal for prosecution in relation to alleged professional misconduct.

The matter has now been considered by both the Client Care Committee and the Council.

In terms of the current legislation the Council of the Law Society has no power to make findings of professional misconduct but can either refer to the Scottish Solicitors Discipline Tribunal for prosecution in relation to such an allegation or alternatively the Council may note the position and advise a solicitor that that information will be kept on the solicitor’s record and may be used should there be future complaints.

Where a matter does not amount to professional misconduct and where the Council is still of the view that the solicitor’s conduct is not satisfactory the Council has over the last two years expressed that view to the solicitor and asked the solicitor to take account of what is being said for the future.

When the Ombudsman made the recommendation in her Annual Report concern was expressed that if a solicitor, in the view of the Council had acted unsatisfactorily on a number of occasions then no account was taken of this when considering future complaints.

From 1st January 2003 it has been agreed that where the Council reaches the view that a solicitor’s conduct is unsatisfactory then a note will be taken of that view. The solicitor will be advised that the view has been noted and may be taken into account in future should there be other cases where the solicitor’s conduct might be regarded as unsatisfactory.

It has been decided that the record of views of unsatisfactory conduct will be made available to any Client Relations Committee considering a matter once they have reached a view on the merits of any complaints relating to the same solicitor. The Committee will then be able to make a recommendation to the Council in relation to the individual complaint taking into account previous behaviour deciding whether a matter may simply still be regarded as unsatisfactory conduct or whether repetition of unsatisfactory conduct may amount to professional misconduct.