In 2015 we produced a report focusing on identified trends in conduct complaint handling by the Law Society of Scotland (LSS) over the previous 6 years.
We'd hope that this report will stimulate discussion about the effectiveness of the systems for dealing with conduct complaints and highlight, in particular, where there may be room for change and improvement.
Here is the Law Society of Scotland’s response to our report:
Since publishing the conduct trends report in April 2015, we had the opportunity to review the Society’s response and discuss it with the Society in more detail. Here is a summary of our recommendations, the Society’s response and lessons learned:-
Law Society of Scotland Response
Continue to work together to reduce timescales in hybrid complaints.
We have mapped the consumer journey and will be making recommendations to Scottish Government about improving journey times and where we consider the process could be altered or improved through legislative change.
Recommendations 2 & 3
Consider adopting a fast-track system, to expedite very serious complaints about solicitors to ensure public protection. Can ‘regulatory’ complaints be expedited, i.e. where the evidence is indisputable?
Response 2 & 3
Operating a fast-track process runs the risk of breaching the legal rights of the parties and the Society’s legal duties. There might be scope for dealing with the disposal of complaints involving Unsatisfactory Professional Conduct, but not complaints that could potentially amount to Professional Misconduct. There would need to be legislative change for this to happen.
We welcome any discussions about the potential for improvement in the expediency and streamlining of conduct investigations, at whatever level. We appreciate that this might require more thinking around the process for categorising complaints at the outset. We intend to debate the issue of fast-tracking in the discussions around the improvements and changes to the legislation.
Revise and publish guidance on the application of sanctions, to also include levels of fines.
We will be inviting various agencies to take part in a discussion about the application of sanctions, with a view to achieving a consistent approach to sanctions in conduct complaints. We have put together some key principles, which we hope will be a useful resource.
Consider publishing Unsatisfactory Professional Conduct decisions.
We look forward to seeing published anonymised Unsatisfactory Professional Conduct findings, which should assist the public and the profession. We have started to publish anonymised Inadequate Professional Service findings and have been drawing out some of the main themes to highlight to Client Relations Managers in our quarterly email newsletter (sign up here).
We would like to see the Society taking steps to extend its Practice Rule requiring firms to keep 'Complaints Logs', to require the log to be produced to the LSS and the SLCC on request, in order to assist our analysis of trends in complaints handling at first tier and to enable us to provide guidance and training on best practice.
Consider reviewing its practice of remitting complaints back to the Professional Conduct Sub Committee on the advice of the prosecuting fiscal.
Rejected – the practice is procedurally proper and competent and the criticisms of it are based upon a misapprehension of the role of the fiscals.
The role of the Professional Conduct Sub Committee is two-fold: (1) Decision-maker on the question of whether there is sufficient evidence for a complaint to be proven beyond reasonable doubt and that the conduct complaint is sufficiently serious to warrant a finding of Professional Misconduct, and (2) Acting with delegated authority from Council, decision-maker as to whether the solicitor should be prosecuted.
We are aware that since responding to the report, the Society has reviewed the process for remitting complaints back on the advice of the fiscal. The process now provides a mechanism for the parties to provide representations before the complaint is finally determined and that a second Committee, which was not involved in the original decision-making, will be involved.
We remain of the view that the “bolt on” of the Unsatisfactory Professional Conduct (and the handling complaint provisions) in the legislation creates confusion and complexity, particularly at the point in the process where prosecutions, appeals and handling complaints are added to the consumer journey. We will be raising this issue again in the context of potential legislative change in our paper to Scottish Government.