"Unsatisfactory conduct" policy

Acting on advice the Society is removing from solicitors' records any views reached on unsatisfactory conduct until the Legal Profession Bill is passed

The Journal, August 2006, page 28

In January 2003, the Society adopted the option of expressing the view that a solicitor’s conduct was unsatisfactory, and noting that on the solicitor’s record. This was introduced after the Scottish Legal Services Ombudsman suggested that the expression of unsatisfactory conduct was of little value unless it is recorded.

Before proceeding on the Ombudsman’s recommendation, legal advice was sought as to whether or not the Society could proceed on this basis. The Society was advised it could follow the recommendation and accordingly did so in good faith.

The view and the recording of it was only ever designed to be a stopgap measure and the Society was aware at the time that the approach would have to be kept under review. The Society made it clear at the time that the issue could only be finally addressed through legislation.

Earlier this year, a solicitor who had been the subject of an unsatisfactory conduct view, challenged the ability of the Society to reach such a view and note the view on the solicitor’s record.

As a result the Society took further advice, and has accepted that until there is legislative change the practice could not continue and has decided to remove views of unsatisfactory conduct from solicitors’ records.

While it is regrettable that this situation has arisen, the Society was acting in response to the recommendations of one of its co-regulators in an effort to provide a more flexible and appropriate system for complainers and solicitors alike.

The current Legal Profession and Legal Aid (Scotland) Bill will give the Society’s Council statutory power to make findings of unsatisfactory professional conduct. This is expected to be introduced sometime next year.

If you have a query, please contact Philip Yelland, Director of Client Relations on 0131 226 7411 (e: philipyelland@lawscot.org.uk)