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Law Society ‘writes rules’ for Scottish Legal Complaints Commission as confidence drops in new regulator

18 Jun

Now that the Law Society of Scotland has seen to it the new Scottish Legal Complaints Commission is staffed by many members of staff from the Law Society itself, along with lay members from it’s own complaints committee framework, there should be no further need for the open hostility expressed by the outgoing Law Society Chief Executive Douglas Mill, against the new Commission and the very legislation which created the SLCC in the first place.

For a sample of that ‘hostility’ expressed by the Law Society, read my earlier report on Douglas Mill deciding whether to sue the Scottish Government & Parliament over taking regulation of complaints against lawyers, away from the lawyers : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

Well, the Law Society has found a new way to undermine the new Scottish Legal Complaints Commission, as I have reported above, by simply assimilating it – in short, taking it over with its own work crew who have caused many of the complaints disasters over the last couple of decades.

The same people who considered and frittered away week after week, month after month, year after year of clients lives making sure their complaints against well known crooked lawyers, got nowhere, will now be working for the new Scottish Legal Complaints Commission.

Can such an individual who has operated for years on the notion of ensuring corrupt colleagues escape regulatory penalty, and all the while, ensuring that clients cannot progress their complaints or financial claims for damages, be working for what is supposed to be a new ‘independent’ complaints commission designed to give the public confidence in regulation of the legal profession ?

Obviously not, and both the Law Society of Scotland and the Scottish Legal Complaints Commission know it .. it’s just a matter of moulding the public perception of the new Commission, and who better to do that, the Law Society of Scotland itself, who now take on the campaign to ‘inform the public’ on what exactly the new Commission is, what kind of complaints it will handle, and what it will do for the public which the Law Society has never done in the past.

Indeed, the Law Society is also apparently handling advice to the new Commission on what complaints it can and cannot handle .. apparently with the full knowledge of the Justice Department of the Scottish Government.

So, taking all that into account, and some previous articles on the Commission I have written about here : Scottish Legal Complaints Commission – a poor record so far

Has there been a changing of the guard at all ?, or just a take over of what was to be a new hope for consumer protection by the Law Society’s old regime of lawyer covers up for lawyer once again …

Surely the Scottish Government can do better for Scotland than this … or is it the case of the tail wagging the dog when it comes to all things law again ?

Here we go for the legal profession’s view of things, reported in the Scotsman in an amusingly titled article … however to bring in a new Sheriff in town for sorting out complaints against lawyers, and ensuring the poor old public get a fair hearing for once, I fear we will need more of a Clint Eastwood or John Wayne approach, than the Elmer Fudd version the new Commission is rapidly turning out to be …

There’s a new sheriff in town

Published Date: 16 June 2008
By Jennifer Veitch

FROM 1 October, the Scottish legal profession will have a new sheriff in town. On that date, the controversial Scottish Legal Complaints Commission will begin its work dealing with the grievances of unhappy clients across Scotland.

At present, if they cannot be resolved by the firm’s client relationship partner – a compulsory post in each legal outfit – complaints are handled by the Law Society, the Faculty of Advocates, and the Scottish Legal Services Ombudsman, and although these bodies will remain, there is confusion over how they will hand over power to the Commission and how it will operate after it begins. As the new body prepares to take charge, we look at the fine print.

What is the Scottish Legal Complaints Commission?

A new independent gateway for complaints about lawyers. The Commission will be a so-called “one-stop-shop” for consumers, and its main role will be to investigate legal service complaints.

Controversially, the Commission will have the power to award compensation of up to £20,000 if inadequate professional service (IPS) is shown to have caused “loss, inconvenience or distress” to clients.

What are the Commission’s powers?

Its powers are set out in the Legal Profession and Legal Aid (Scotland) Act 2007. Apart from taking responsibility for handling service complaints out of the hands of lawyers, the most significant change will be that compensation for IPS will be four times higher than the current maximum paid out by the Law Society. The Commission can also compel lawyers to reduce fees, redo work or rectify mistakes at their own expense.

If complaints are upheld, the Commission will charge case fees of between £200 and £400 to firms if a settlement is reached through mediation.

Clients will not be charged if a complaint is not upheld, but the Commission will weed out complaints that are “vexatious, frivolous or totally without merit”. It will also promote early resolution of disputes between a firm and clients.

When will the Commission actually take over complaints handling?

Officially, it becomes the new gateway from 1 October, but there may be a significant time lag before it actually investigates and rules on any matters.

According to the Commission’s draft rules – currently out for consultation – it will investigate complaints if the service that is the cause of the complaint itself has been instructed after 1 October. It could look at historical complaints, but would not have the power to award the higher compensation and wants to avoid a two-tier system.

This means that it is likely that the old complaints system will continue to run for an indefinite period, handling any complaints about service that was instructed before 1 October.

Any consumers with non-urgent business who want the protection offered by the new system might wish to wait until after 1 October to instruct their lawyer.

What happens if a complaint is already being investigated on 1 October?

The Law Society and Faculty of Advocates will continue to investigate any complaints that are already ongoing.

What will happen to the Scottish Legal Services Ombudsman?

This body has powers to investigate the handling of complaints by the Law Society and Faculty of Advocates and will be abolished when the new Commission begins work. Provisions are being considered to allow the Commission to take on the Ombudsman’s function in relation to complaints instructed before 1 October.

What will happen to conduct complaints?

The Commission must refer conduct complaints about solicitors or advocates back to the Law Society or the Faculty as appropriate, but it will review the professional bodies’ handling of misconduct cases. It is also likely to be closely involved in cases where there is an overlap between service and conduct. For example, repeatedly poor service may become a conduct issue.

Who will run the Commission?

It will be chaired by Jane Irvine, the current Scottish Legal Services Ombudsman, and made up of four lawyer members – Professor Alan Paterson, David Smith, Margaret Scanlan and David Chaplin – and four lay members, Douglas Watson, Linda Pollock, George Irving and Ian Gordon. The Commission is independent of government, although member appointments are made by Scottish Ministers.

Who is paying for the Commission?

Apart from start-up costs from the Scottish Government, the short answer is the legal profession. It will be funded by a compulsory annual levy paid by all practising solicitors and advocates, and case fees from upheld complaints.

The Commission has set a budget of £2.6 million to cover the first nine months of operation. The levy will be collected by the Law Society and the Faculty of Advocates and invoices will be sent out this month. Most solicitors – with three or more years’ experience – will pay £307; around 50 per cent higher than first estimated. The levy has been adjusted to give discounts to trainees and newly qualified solicitors, who will pay £153, and in-house lawyers, who will pay £102. Advocates will pay £248.

How many complaints will the Commission get?

This depends on a number of factors. If clients perceive that it has an enhanced ability to resolve disputes – as well as a higher level of compensation – there may be an upsurge in complaints. Yet recent figures suggest the number of legal complaints has been falling. The Law Society’s last annual report stated that complaints about solicitors dropped by almost 30 per cent between 2006 and 2007.

Is any more information available?

The Commission has a new website that sets out its remit and includes consultation documents on its draft rules: http://www.scottishlegalcomplaints.com , and The Law Society is publishing regular updates for solicitors on its website: http://www.lawscot.org.uk

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