Contents
REMIT AND MEMBERSHIP EXECUTIVE SUMMARY REPORT ANNEX
A: JUSTICE 1 COMMITTEE, REGULATION OF THE LEGAL PROFESSION INQUIRY
CONSULTATION PAPER ANNEX B: JUSTICE 1 COMMITTEE
STAGE 1 REPORT TO LOCAL GOVERNMENT COMMITTEE ON THE PUBLIC APPOINTMENTS AND PUBLIC
BODIES ETC. (SCOTLAND) BILL ANNEX C: EXTRACT FROM THE MINUTES Volume
2: Evidence Justice 1 Committee Remit
and membership Remit: To consider and report
on matters relating to the administration of civil and criminal justice, the reform
of the civil and criminal law and such other matters as fall within the responsibility
of the Minister for Justice. (As agreed by resolution of the Parliament on
14 December 2000, with effect from 8 January 2001) Membership: Christine
Grahame (Convener) Wendy Alexander Lord James Douglas-Hamilton Donald
Gorrie Maureen Macmillan Paul Martin Mr Michael Matheson Alasdair
Morgan (Convener) (From 4 October 2000 to 6 September 2001) Nora Radcliffe
(From 2 May 2001 to 20 September 2001) Euan Robson (From 8 January 2001
to 29 March 2001) Jamie Stone (From 29 March 2001 to 2 May 2001) Committee
Clerking Team: Clerk to the Committee Alison
Taylor Senior Assistant Clerk Claire Menzies Assistant
Clerk Jenny Goldsmith Justice
1 Committee Summary of the Committee's recommendations
and comments The Committee reports to the Parliament as follows- Options
for reform 1. A number of options for reform of the current regulatory
framework emerged in the course of the inquiry, which fall broadly into two camps:
a completely independent system and joint regulation with increased independence
from the professional bodies. The Committee is not persuaded by the option of
a completely independent system for the regulation of the legal profession and
believes that it would be more effective to maintain the present system of joint
regulation, namely self-regulation with the additional independent regulatory
mechanism of the Ombudsman, but with increased independence. The Committee believes
that the present system should be reformed, in order to make it more acceptable
to consumers, and more representative of the public interest. It has explored
the options for achieving this and these are outlined below. Single
gateway 2. The Committee believes that it is vital that the public
perception of the complaints systems is that it is both fair and transparent.
The Committee is in favour of the creation of a single gateway for complaints
against the legal profession which it believes will improve the public perception
of the complaints system and play a valuable oversight role. Powers
of the Ombudsman 3. The Committee believes that the role of the
Ombudsman is crucial in ensuring that the complaints process is open and transparent.
The Committee recommends that the powers of the Ombudsman should be augmented.
The Committee believes that this will increase consumer confidence in the complaints
system and provide for greater independent oversight. Power to investigate
the substance of the original decision made by the professional body 4.
There is an expectation on the part of consumers that the Ombudsman will investigate
the merits of a complaint. The Committee believes that without this power, the
Ombudsman does not have the capacity to address the real issues of concern to
the complainant. The Committee therefore recommends that the
Ombudsman should be given the statutory power to investigate the substance of
a complaint rather than simply the way it has been dealt with by the professional
bodies. Power to enforce recommendations 5. The Committee
believes consumer confidence in the Ombudsman is undermined by the fact that it
is not possible for the Ombudsman to enforce recommendations. The Committee therefore
recommends that the Ombudsman should be given the statutory power to enforce recommendations.
Power to conduct general audits 6. The Committee believes
that granting the Ombudsman the power to conduct general audits would allow for
more effective monitoring of professional bodies' complaints systems. The Committee
therefore recommends that the Ombudsman should be given this statutory power. Power
to prescribe general timescales 7. The Committee believes that it is
vital that complaints are dealt with as speedily as possible, for the sake of
both the complainant and the solicitor. The Committee therefore recommends that
the Ombudsman should be given the statutory power to set appropriate target timescales
and to monitor adherence to them. Power to direct professional bodies
to investigate a complaint 8. The Committee is concerned about the
number of complaints which are not investigated by the Law Society of Scotland
(Law Society) and believes that the power to direct a professional body to investigate
a complaint would help to ensure that there is independent input into the decision
about what constitutes a complaint. The Committee therefore recommends that the
Ombudsman should be given the discretionary statutory power to direct professional
bodies to investigate a complaint. Funding 9. The
Committee acknowledges that increasing the powers of the Ombudsman will require
additional funding. The Committee believes that it is important that the independent
element of the system is not funded by the legal profession and recommends that
the Government should fund the increased costs incurred by the Ombudsman's office
as a result of the Committee's proposals. The Committee believes that the professional
bodies should continue to fund their own complaints systems. Recommendation
for reform 10. The Committee believes that the most effective regulatory
system is one that involves the legal profession taking direct responsibility
for setting its standards, monitoring compliance, and having primary responsibility
for providing consumer redress (as discussed below), but with the key dimensions
of lay involvement and rigorous independent scrutiny. The Committee believes that
the regulatory reforms outlined above will have a significant impact on the service
received by the consumer. The Committee also believes that there are a number
of reforms required to the way in which the professional bodies handle complaints,
as discussed below. Law Society of Scotland Dual
role of the Law Society 11. The Law Society is charged with the promotion
of the interests of the solicitors profession in Scotland and of the interests
of the public in relation to that profession. It has been suggested in evidence
that there may be a conflict of interest and that the Law Society cannot always
represent both interests fairly. With regard to removal altogether of conflict
of interest or potential conflict of interest, this could be addressed by creating
firewalls between those in the profession who are subject to a complaint, and
the complainant. Such a system exists in England and Wales where the Office for
the Supervision of Solicitors has been set up to deal specifically with the handling
of complaints and has a guarantee of independence from the Council of the Law
Society. The Committee recommends that the Law Society consider the creation of
firewalls, namely by establishing procedures where there is a clear separation
of interests and demarcation between the interests of the complainer and the solicitor
subject to the complaint. Accessibility of the complaints system 12.
The Committee believes that it is vital that the complaints system is transparent
and accessible. The Committee recognises the work done by the Law Society in developing
its leaflet and helpline aimed at clients, but believes that more could be done
to increase the transparency and accessibility of the system. The Committee therefore
recommends that the Ombudsman should be given the power to make recommendations
on the operation of the complaints procedures of the professional bodies. Setting
Standards 13. The Committee recommends that there should be lay involvement
in the setting of standards for professional bodies to ensure that the consumer's
voice is represented from the very outset. Definition of a complaint 14.
There are two definitions of a complaint against a solicitor: inadequate professional
services (IPS) and professional misconduct. There appears to be confusion amongst
consumers about the division of complaints between IPS complaints and conduct
complaints. The Committee is encouraged that there was a lot of support in evidence
for clarifying and simplifying the definition of a complaint. The Committee recommends
that the distinction between conduct and IPS complaints should be removed. A "complaint
against a solicitor" should be redefined in statute, and the new definition
should be simple and widely drawn. This should be supported by an education campaign
aimed at both the profession and the wider public. Negligence 15.
The Committee is aware that professional bodies are often too ready to reject
a complaint on the basis that it involves negligence, where it may be that IPS
is also involved. This is clearly linked to the interpretation of the term IPS.
The Committee acknowledges that it is already possible for professional bodies
to investigate complaints which involve both IPS and negligence, but it appears
that many are rejected on the grounds that the complaint should be pursued through
the courts. The Committee therefore highlights that the professional bodies should
investigate the IPS element of a complaint, even where there may also be allegations
of negligence. The single gateway and the new power of the Ombudsman to direct
a professional body to investigate a complaint will play an important role in
ensuring that such IPS complaints are investigated and not dismissed as negligence
to be pursued through the courts. 16. The Committee recommends that the
Law Society should examine its procedure for dealing with complaints involving
negligence and consider setting up an arbitration scheme for dealing with such
complaints. The Committee also recommends that the Law Society should examine
the merits of the Troubleshooter scheme and report back to the Committee on other
ways of addressing problems experienced by complainants in pursuing negligence
cases in court. Finally, the Committee recommends that the Scottish Executive
should examine the merits of allowing professional bodies to investigate small
negligence cases up to a certain financial limit, and report back to the Committee
on its findings. Redress 17. The Committee believes that redress
should be available to the complainant regardless of the classification of the
complaint. The Committee therefore recommends that compensation should be offered
for a complaint about an individual solicitor's conduct where it is established
that loss has been suffered as a direct result of the solicitor's conduct. Compensation
levels 18. The Solicitors (Scotland) Act 1980 (the 1980 Act) sets at
£1,000 the maximum level of compensation which the Law Society or the Scottish
Solicitors Discipline Tribunal may order a solicitor to pay a client in relation
to inadequate professional services. The maximum award of £1,000 has not
been increased since 1990 and the Committee believes that it should be uprated
and kept in line with inflation thereafter. The Committee does not accept that
there should be no maximum limit, as there have to be parameters within which
those awarding compensation can work. The Committee recommends that the maximum
compensation level should be increased to £5,000 with a mechanism for annual
uprating in line with inflation. 19. The Committee believes that there
should be consistency in the awarding of compensation and supports the suggestion
that the professional bodies should issue guidance on this matter in order that
the consumer knows how the award has been determined. Such guidance should be
placed in the public domain. This will be particularly important given the proposed
delegation of powers (as discussed below). Delegated powers 20.
Under the 1980 Act, the Council of the Law Society has to look at each complaint
made to the Law Society and to determine the outcome. The Council of the Law Society
comprises of 51 solicitors who are elected on a geographical basis or who are
co-opted, such as people in public service or in-house lawyers. There is no lay
involvement in the Council.1 The lack of
lay involvement in the Council raises serious questions about the fairness of
the complaints process. 21. The Committee believes that it is unfair that
the adversarial approach to dealing with complaints in the Council does not allow
the complainant the opportunity to be heard, whereas solicitors can lobby Council
members to present their case. The Committee is also concerned that the requirement
for the Council to consider every complaint slows down the process and contributes
to time delays in addressing complaints. The Committee recommends that the power
to determine the outcome of all complaints should be delegated to committees
of the Law Society. Conciliation 22. When it receives a complaint,
the Law Society will seek to have the matter resolved in the first instance between
the firm and the dissatisfied client. This process is referred to as conciliation.
The Committee believes that the conciliation process is key to the complaints
handling system and could resolve many complaints at an early stage. The Committee
recommends that the conciliation process should be strengthened and that a practice
rule should be introduced to require firms to have a complaints procedure, with
a delegated person within a firm to deal with complaints. The Committee also recommends
that conciliation services should be provided to small firms and sole practitioners
and that the conciliation process should have strict time limits to ensure that
it is not used as a method to stall genuine complaints. Lay involvement 23.
The Committee believes that lay involvement in the complaints process is crucial
for promoting consumer confidence. The Committee recommends that
lay representation on committees of the Law Society dealing with all complaints
should be at least 50%. Scottish Solicitors Discipline Tribunal 24.
The Committee believes that the independence of the Scottish Solicitors Discipline
Tribunal would be enhanced if its solicitor members were appointed by an open
selection process rather than recommended by the Law Society and appointed by
the Lord President and if lay membership were increased. The Committee recommends
that members of the Scottish Solicitors Discipline Tribunal should be appointed
by an open selection process. The Committee also recommends that the membership
of the Scottish Solicitors Discipline Tribunal should be made up of 50% lay people.
It should also be possible for the Scottish Solicitors Discipline Tribunal to
be chaired by a lay person, with the assistance of a legally qualified clerk. Finance Professional
Indemnity Insurance 25. The Law Society has the power to provide and
to require solicitors to have professional indemnity insurance and does so through
the Solicitors (Scotland) Professional Indemnity Insurance Rules 1995 and a master
policy scheme. The master policy provides cover in respect of negligence claims
as well as indemnifying solicitors in respect of claims arising out of any alleged
dishonest, fraudulent, criminal or malicious act or omission. Claims under the
master policy are investigated by the insurers (Marsh UK). The Committee is aware
that lengthy delays in receiving settlements from the master policy have caused
distress to a number of individuals. The Committee recommends that the Scottish
Executive should examine ways in which the operation of the guarantee fund and
the master policy could be made subject to external regulation and report back
to the Committee on its findings. Faculty of Advocates 26.
The Ombudsman told the Committee that the Faculty's handling of complaints allows
no consumer redress and is based entirely on an internal disciplinary code. If
the client is in pursuit of compensation, this must be pursued by a negligence
action through the courts.2 The Committee
believes that there should be redress where complaints have been upheld. The Committee
recommends that the Faculty of Advocates should offer compensation of up to £5,000
for upheld complaints which relate to IPS, and for complaints about an individual
advocate's conduct where it is established that loss has been suffered as a direct
result of the advocate's conduct. 27. The Committee recommends that the
Faculty should prepare an information sheet to be sent to all complainers providing
a brief outline of the way the Faculty deals with complaints. Complaints
involving solicitors and advocates 28. The Committee recommends that
the Law Society and the Faculty of Advocates should produce a procedure for dealing
with complaints which involve both solicitors and advocates, in consultation with
the Ombudsman. Legislation 29. The Committee acknowledges
that legislation will be required to implement many of its recommendations and
invites the Executive to report back to the Committee on these proposals.3 Justice
1 Committee Report on Regulation of the
Legal Profession Inquiry The Committee reports to the Parliament
as follows- Background to the inquiry 30. The Committee
formally announced the remit of its inquiry into the regulation of the legal profession
on 19 June 2001. The original remit was to investigate the effectiveness of the
current approach to and framework for the regulation of the legal profession and
of legal services in Scotland. The Committee's intention was that the inquiry
should be broad in scope, covering all branches of the legal profession within
Scotland, other groups working within the legal system and/or providing advice
or assistance in relation to legal issues. Thus, the initial scope of the inquiry
included: advocates, solicitors (including solicitor advocates), qualified conveyancers
and executry practitioners, judges (including sheriffs and justices), fiscals
and sheriff officers, as well as groups offering advice or assistance in relation
to legal issues though lacking formal legal qualifications. 31. Having gathered
evidence based on the remit outlined above, the Committee agreed that the original
remit was too wide both in terms of the bodies covered and the range of regulatory
matters under investigation. In a press release on 25 October 2001, the Committee
set out a refined remit for the inquiry, stating that the system of complaints
against people working in the legal profession would be its primary focus, thus
excluding the activities of non-professional legal services. 32. Specifically,
the revised terms of reference stated the Committee's intention to investigate: ·
the existing systems and procedures for dealing with complaints (including the
definition of complaints, whether there are complaints/grievances that are excluded
and the reasons for this); · the nature of complaints currently dealt
with; · the effectiveness of the complaints systems and perceptions
of their effectiveness; · comparative models and their effectiveness,
and; · how complaints systems can be improved. 33. At its meeting
on 5 February 2002, the Committee further refined the terms of reference by agreeing
not to consider the judiciary as part of its inquiry. 34. The remit therefore
became focussed specifically on the legal profession (but excluding judges and
non-regulated legal services) and on complaint handling within the profession
rather than other regulatory issues. At that time, the Committee acknowledged
that it would have been unrealistic to expect all the matters within the original
remit to have been addressed within the timescale established and reserved the
option of dealing with these issues at a later stage. It is now apparent that
there will not be sufficient time to do this before the Scottish Parliamentary
elections in 2003. However, a future Justice Committee may wish to return to these
issues. 35. The focus on complaint handling by the legal profession was
considered to be appropriate at this stage of the inquiry, given that the majority
of respondents to the call for evidence wrote about solicitors and the Law Society
of Scotland's complaints system. In addition, although complaint handling is a
very small component of self-regulation, it is, in the words of the Scottish Legal
Services Ombudsman "the public face of regulation" which "acts
as a measure of effectiveness."4 36.
This report examines the regulatory framework within which professional bodies
within the legal profession deal with complaints. It then goes on to consider
the complaints systems of the Law Society of Scotland (the Law Society) and the
Faculty of Advocates in detail with recommendations on how these systems could
be improved. Evidence 37. To date, the Committee
has received 126 responses to the inquiry. Of these responses, approximately half
are from individuals, and half from professional bodies, consumer groups, lobby
groups and academics. The Committee also considered petition PE361 by Mr Stuart
Usher on behalf of Scotland Against Crooked Lawyers calling for the Scottish Parliament
to ensure that the Scottish Executive complies with all articles and provisions
of the European Convention on Human Rights; to take various steps in relation
to the regulation of the Law Society of Scotland and the Faculty of Advocates
and to take a further range of steps to reform and improve the justice system
in Scotland. The Committee agreed to take the issues raised by the petition into
account during its inquiry into the Regulation of the Legal Profession.5
38. The Committee agreed that it would not pursue individual cases or complaints,
but that it would examine the main issues arising from the individual cases to
explore how the system works in practice and the difficulties experienced. Therefore,
the Committee agreed not to call individuals to give oral evidence for this inquiry
or to call for the release of further information on individual cases. 39.
After the deadline of the call for evidence, the Committee agreed to take oral
evidence from a cross-section of those who had responded. The following gave oral
evidence to the Committee: Law Society, Scottish Conveyancing and Executry Services
Board,6 Scottish Solicitors Discipline Tribunal,
Crown Office, Scottish Executive Justice Department, Scottish Legal Services Ombudsman,
Faculty of Advocates, Marsh UK, Scottish Consumer Council, Scotland Against Crooked
Lawyers, Professor Alan Paterson of the University of Strathclyde Law School and
Margaret Ross, Deputy Head of Aberdeen University Law School. 40. On 29
April 2002, the Committee sent a consultation paper to all those who had responded
to the initial inquiry seeking further comment on specific aspects of the inquiry.
The Committee received 65 responses to the consultation. The consultation paper
is attached at annex A. Regulatory framework 41.
The key issue considered by the Committee in the inquiry is whether the present
regulatory framework for complaint handling is appropriate. There are various
mechanisms for regulation in the public interest. These include direct regulation
by government through a government department, or in a more arms-length way through
a statutory body or agency. At the other end of the spectrum is self-regulation,
where the rules governing behaviour are developed, administered and enforced by
those whose behaviour is being governed. For the professions, self-regulation
has traditionally been seen as the appropriate mechanism of regulation, considered
by some to be the hallmark of a profession. Self-regulation, even professional
self-regulation, can take a number of forms. In the case of the legal profession,
this form consists of the professional bodies acting within a statutory framework.
In other words, legal professional bodies derive their regulatory powers from
the state. 42. The legal profession in Scotland, as elsewhere, is subject
to a number of regulatory mechanisms. For example, the private law of contract
and negligence and the criminal law of theft, deception and fraud are relevant
to legal professionals. In addition, the Scottish Solicitors Discipline Tribunal
exercises powers over solicitors. Legal professionals have to conform to rules
about indemnity insurance, and regulations for deciding disputes about fees. In
addition, and more relevant in terms of this inquiry, since 1991, there has been
an additional regulatory mechanism. This is the Scottish Legal Services Ombudsman
(the Ombudsman), a statutory body, established to oversee the complaint handling
mechanisms of the legal profession. This system, sometimes referred to as "joint
regulation" or "co-regulation",7
provides independent supervision of the self-regulatory complaints processes operated
by the professional bodies. Options for Reform 43.
A number of options for reform of the current regulatory framework emerged in
the course of the inquiry, which fall broadly into two camps: a completely independent
system and joint regulation with increased independence from the professional
bodies. The individuals who wrote about their particular cases were very critical
of the present system. The Committee sent out a consultation paper to all those
who submitted evidence to the inquiry seeking views on these options.
The case for a completely independent body to deal with complaints 44.
There is a strong perception on the part of some who submitted evidence that self-regulation
is not in the public interest. Scotland Against Crooked Lawyers described the
current system as "regulation by lawyers, for lawyers, with lawyers"
which is "too incestuous".8 45.
For some, the only way to restore consumer confidence is to have a completely
independent body dealing with complaints against lawyers. Those arguing for this
solution felt that the complaints process needed to be independent of the professions,
in order to be credible for consumers.9 The
Scottish Consumer Council stressed that achieving consumer confidence is very
important, "that means that the body has to be independent and has to be
seen to be independent. Regardless of whether the current procedure is fair and
independent, people do not see it that way".10
The Executive also agrees that if there were an independent body, public perception
of the complaints system would be more favourable.11
Many individuals with experience of the complaints system argued for a fully independent
system. 46. Some individuals with experience of the complaints system believe
that the present system contravenes article 6 of the European Convention on Human
Rights (ECHR). Article 6 deals with a person's right to a fair trial, and reads
as follows: "in the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established
by law".12 The Committee notes these
comments but is aware that a recent decision of the Outer House of the Court of
Session ruled that a failure on the part of the professional disciplinary system
to comply with the entitlement under article 6 to a hearing before an "independent
and impartial tribunal" can be cured by the existence of a right of appeal
to a court of full jurisdiction.13 Decisions
made through the complaints systems of professional bodies can be appealed through
the courts. The system is therefore deemed to be compliant with ECHR and there
have been no successful challenges on the grounds of ECHR to date. 47.
Little detail was provided in evidence about how a completely independent system
would operate, and it would presumably need some expert input. One model proposed
by commentators in England and Wales is that of the medical profession, where
the representative and regulatory functions are separate. However, medical practitioners
are still involved in regulation, and in dealing with complaints. 48. The
Scottish Consumer Council recommends an independent body which would oversee the
process of complaint handling for solicitors and would not have solicitors on
it. It would refer some cases to the Law Society and others back to the solicitor
for local resolution.14 Scotland Against
Crooked Lawyers would replace the Law Society with "a body comprising well-known
and highly respected people of probity" with a lay committee which had a
legal adviser to advise it on legal matters.15 The
case against ending self-regulation 49. Those arguing for the retention
of self-regulation stressed the importance of the independence of the legal profession
and that too much interference by government could jeopardise the ability of the
profession to perform its work.16 The Faculty
of Advocates is strongly against an entirely independent system, "if self
regulation were removed, the power and moral authority of the leaders of the profession
to insist on good standards of ethical and professional conduct would be diminished".
It urged the Committee "to think carefully before saying or doing anything
that might diminish the independence of the profession, which is a precious feature
of our public life in Scotland".17 50.
Some witnesses pointed out the dangers of divorcing complaint handling from the
other functions of the professional bodies.18
Professor Paterson, a professor at the Law School of the University of Strathclyde,
believes that "it is very important that a professional body retains its
commitment to the public interest and the pursuit of that".19
It is believed that it is crucial that legal professionals are involved in the
complaint handling process so that they can learn from their mistakes. The Ombudsman
feels strongly that the professional bodies should be responsible for putting
time, effort and attention into dealing with complaints as lessons are learned
from complaints.20 Similarly, the Scottish
Consumer Council believes that it is important that the Law Society still has
a role in the regulation of the profession in regard to complaints because that
is the only way in which it would be aware of problems that exist within the profession
and the only way in which it could help to maintain and improve standards within
the profession.21 51. Some witnesses
saw much merit in self-regulation,22 but
considered its effectiveness depended upon consumer confidence in it.23
Without this confidence, it is no longer effective. Despite the problems of self-regulation,
governments generally seem to require trades and professions to take responsibility
for standards in addition to their representative functions. However, the Ombudsman
felt that the current legislative framework did not meet the expectations of consumers.24
While accepting the need for self-regulation, arguments were made for more independent
oversight, more lay involvement, and more powers for an independent body to deal
with complaints. 52. The Committee is not persuaded by the option
of a completely independent system and believes that it would be more effective
to maintain the present system of joint regulation, namely self-regulation with
the additional independent regulatory mechanism of the Ombudsman, but with increased
independence. The Committee believes that the present system should be reformed,
in order to make it more acceptable to consumers, and more representative of the
public interest. It has explored the options for achieving this and these are
outlined below. Single gateway 53. One way
of increasing the independent element in the system of joint regulation would
be by creating a single gateway. In this system, there would be an independent
body which would receive all complaints about the legal profession. That body
would then refer them to the professional body for settlement, with the option
of a referral back if the complainant was not satisfied with the handling of the
complaint. This function, principally of a "clearing house", could be
performed by the Ombudsman. The Ombudsman would receive all complaints and make
decisions about what is and what is not a complaint.25
The Committee consulted on this proposal. 54. Respondents were evenly split
between those who supported the creation of a single gateway and those who did
not believe that it would work in practice. Margaret Ross, Deputy Head of the
Law School at the University of Aberdeen, was not in favour of such a model, arguing
that it would involve unnecessary duplication of work (the Ombudsman having to
carry out initial work on evaluating the complaint which would be repeated by
the relevant professional body if the complaint was passed on) and might devalue
the role of the Ombudsman.26 The Faculty
of Advocates also believes that a single gateway would present too many practical
difficulties, including expense and delay. The Faculty asserted that it would
cause confusion in the minds of the public.27
The Law Society also subscribes to this view and does not think that a single
gateway would provide any appreciable benefit.28
Many individuals argued that there would be no need for an independent gateway
if the system were completely independent. 55. The "single gateway"
model exists in New South Wales and is said to be very successful. Evidence from
the Commissioner in New South Wales who carries out this role suggests that concerns
about the practical difficulties of a single gateway are overstated and that there
is very little, if any, duplication of effort.29
The Ombudsman pointed out that there is already duplication in the current system.
8% of those whose complaint is classed as not being a complaint refer the decision
to the Ombudsman who reassesses the complaint and notes that, "determining
what is and is not a valid complaint sits comfortably within the ethos of the
Ombudsman, is something that the Ombudsman already does, and would not disrupt
the Ombudsman's other functions".30 56.
Some respondents claimed that the lack of a right of review against the original
decision by the single gateway could be a problematic, particularly if the function
were carried out by the Ombudsman. The Law Society believes that the role of a
gatekeeper would compromise independence as its decisions regarding complaints
are decisions in law and could be subject to judicial review. It believes that
it would be necessary to establish an appeal body to deal with issues which the
gatekeeper refuses to investigate.31 The
New South Wales Commissioner has argued that there is a clear appeal route and
any decision he makes an administrative decision which can be reviewed through
the operation of administrative law.32 57.
Those in favour of a single gateway believed that it would ensure fair and consistent
action and would help to dispel the adverse perceptions of the present system.
According to the Scottish Legal Aid Board (SLAB), "if a single gateway operated
by the Ombudsman were to be introduced then that would undoubtedly make the process
more transparent and provide some assurance to complainants that the primary regulators
are subject to a degree of independent scrutiny".33
58. The Ombudsman believes that the single gateway would solve some of
the overlap problems which currently exist and would have a monitoring and oversight
role.34 According to Professor Paterson,
with the creation of a single gateway model "what we would gain would be
the perception - and reality - of an independent gateway. People would not think
that they were being fobbed off".35
It was also suggested that a single gateway would stop the suspicion that professional
bodies simply use the complexity of the processes to push complainants from one
organisation to another.36 59.
The Committee believes that it is vital that the public perception of the complaints
systems is that it is both fair and transparent. The Committee is in favour of
the creation of a single gateway which it believes will improve the public perception
of the complaints system and play a valuable oversight role. Powers
of the Ombudsman 60. A significant way of increasing independence
in the system would be by augmenting the powers of the Ombudsman. The Ombudsman's
remit is to investigate complaints about the way in which the professional bodies
have handled a complaint about a legal practitioner. If the Ombudsman finds that
the professional body has not dealt with the complaint fairly and thoroughly,
she can recommend that it looks into the complaint again, pays compensation for
inconvenience or reimburses the cost of making the complaint to the Ombudsman.
The professional bodies decide if they are willing to accept the Ombudsman's recommendations.
The Ombudsman cannot overturn the decision made by the professional body, or investigate
the complaint about the practitioner (only the manner in which it was dealt with).37
As the Ombudsman explained to the Committee, "ultimately, if the Law Society
refuses to do something that I believe is important, the only measure that I can
take is to publish an announcement". She does not believe that this provides
redress to the complainer.38 61. In
its consultation paper, the Committee sought comments on the proposal to augment
the powers of the Ombudsman. There was overwhelming support for this suggestion.
In research carried out in 2000, the majority of the complainers in the survey
said that they would like stronger powers for the Ombudsman.39
Scotland Against Crooked Lawyers agreed that increased powers for the Ombudsman
would be a step forward.40 The Law Society
also agrees that the Ombudsman's powers could be enhanced if it were demonstrated
that such enhancement would be in the interests of the public.41
62. The Faculty of Advocates opposes increasing the powers of the Ombudsman.
It believes that if the Ombudsman or another outside organisation were given the
responsibility for the investigation, determination and disposal of complaints,
its independence would be threatened.42 The
Executive pointed out that increased statutory powers for the Ombudsman would
be "a significant shift from self-regulation".43
The Faculty of Advocates agrees, "either there is a principle of self-regulation
or there is not. Once that principle is eroded and there is only limited self-regulation,
it is gone".44 The Committee does not
support the preservation of self-regulation in its current form as it does not
have the confidence of the consumer. The Committee therefore believes that it
would be a step forward to increase the independent element in the system of co-regulation.
63. The Faculty of Advocates questioned the independence of the Ombudsman.
They pointed out that the Ombudsman is appointed by the Scottish Executive for
a limited term and is accountable to the Parliament, "in relation to the
Parliament and the Executive, therefore, the Ombudsman does not share the independence
of any self-employed member of the legal profession".45
The Committee does not believe that these factors compromise the Ombudsman's independence
in the eyes of the consumer who generally values input from someone independent
of the legal profession. 64. The Committee believes that the role
of the Ombudsman is crucial in ensuring that the complaints process is open and
transparent. The Committee recommends that the powers of the
Ombudsman should be augmented. The Committee believes that this will increase
consumer confidence in the complaints system and provide for greater independent
oversight. Power to investigate the substance of the original
decision made by the professional body 65. The proposal that the Ombudsman
should be given the power to examine the substance of the original complaint received
widespread support from respondents to the consultation. The Legal Services Ombudsman
for England and Wales has this power, but only uses it in exceptional circumstances.
The Institute of Legal Executives (ILEX) agreed that this power should only be
used in exceptional cases, "otherwise the power will simply be used as another
level of appeal".46 The Ombudsman confirmed
that this would be a useful power but does not foresee using it frequently.47 66.
The Faculty of Advocates was sceptical about this power. They believe that if
the Ombudsman were given such a power, it would be necessary for the Ombudsman
to employ experienced professionals so that the decisions could be taken by people
with the necessary knowledge, "this could give rise to complaints from certain
quarters of lack of independence".48
However, the Law Society agrees that the Ombudsman should have the power to identify
deficiencies in the investigation of the substance of a complaint rather than
simply its handling and that a power analogous to those of the Ombudsman in England
& Wales would be appropriate.49 67.
There is an expectation on the part of consumers that the Ombudsman will investigate
the merits of a complaint. The Committee believes that without this power, the
Ombudsman does not have the capacity to address the real issues of concern to
the complainant. The Committee therefore recommends that the Ombudsman
should be given the statutory power to investigate the substance of a complaint
rather than simply the way it has been dealt with by the professional bodies.
Power to enforce recommendations 68. It has been
argued by many that the Ombudsman in Scotland has insufficient powers. One of
the reasons for this perception is the lack of powers to enforce recommendations.
The Legal Services Ombudsman for England and Wales has such a power and many respondents
to the consultation were in favour of granting this power to the Ombudsman in
Scotland. Professor Paterson pointed out that, "in a mature democracy where
ombudsmen's decisions can be enforced in a wide range of professional situations
involving pensions, insurance, financial services, etc the present situation runs
the risk of undermining the public confidence in the Legal Services Ombudsman".50
69. Some respondents were not in favour granting such powers to the Ombudsman.
The Law Society believes that the Ombudsman currently has sufficient powers in
this regard. It pointed out that it is currently obliged within 3 months to notify
the Ombudsman of any action taken to comply with the Ombudsman's recommendations
or not. The Ombudsman has the power to publish decisions and the fact that the
Law Society or the Faculty of Advocates has not in any particular case taken them
on board. The Law Society believes that these powers are sufficient, "whilst
there is no formal power of compulsion, the Ombudsman has an effective mechanism
to obtemper compliance with her recommendations". Only 2 handling complaints
have been publicised in the last 5 years.51 70.
The Committee believes consumer confidence in the Ombudsman is undermined by the
fact that it is not possible for the Ombudsman to enforce recommendations.
The Committee therefore recommends that the Ombudsman should be given the statutory
power to enforce recommendations. Power to conduct general
audits 71. One of the mechanisms which might be useful for the Ombudsman,
and which was mentioned a number of times in evidence, was the power to audit
professional bodies' files. Both the Lay Observer in Northern Ireland and the
Independent Adjudicator for the Law Society in the Irish Republic are able to
audit files held by the professional bodies. The Lay Observer has access to all
of the complaint files held by the Law Society irrespective of whether a complainant
has written to him or not. He currently examines approximately 30% of the files
held in the Law Society.52 He believes that
the audit system provides the opportunity base for a meaningful development of
an effective oversight and a "third way" between self-regulation and
a completely independent system.53 72.
If the function of the Ombudsman is oversight of the professional bodies' complaints
mechanisms, this power may enable the Ombudsman to do this more effectively. At
present, the Ombudsman only has a partial picture of how the system is operating,
because her involvement is dependent on an individual complaint. The Ombudsman
believes that "a general power of audit would provide a more balanced assessment
of the adequacy of the complaint handling arrangements and could cover wider ranging
issues such as discrimination and demography, not always possible to assess in
the examination of separate complaints".54 73.
Again, many respondents to the consultation supported the introduction of this
power. The Law Society told the Committee that the powers of the Lay Observer
in Northern Ireland are based on a protocol between the Law Society and the Lay
Observer which allows access to all complaints files for inspection purposes.
It would welcome the statutory power to enter into a protocol to achieve these
aims.55 The Faculty of Advocates does not
object to general audits but believes that "if complainers are not dissatisfied
with how their complaints have been dealt with, it is not obvious why public funds
should be spent on investigating them".56
74. The Committee believes that granting the Ombudsman the power
to conduct general audits would allow for more effective monitoring of professional
bodies' complaints systems. The Committee therefore recommends that the Ombudsman
should be given this statutory power. Power to prescribe general
timescales 75. Many individuals had concerns regarding the length of
time it can take to deal with complaints. The Ombudsman told the Committee that
it takes an average of 90 weeks for the Law Society to process a complaint with
the longest time encountered being 4 years and suggests that it should be possible
to insist that complaints should be dealt with in 6 months.57
Whilst the Scottish Conveyancing and Executry Services Board's complaints system
has tight time limits, the Law Society and the Faculty of Advocates do not work
to any target timescale. 76. Professor Patterson agreed that, "it can
be helpful if there is a documented procedure that sets realistic time limits.
The Solicitors (Scotland) Act 1980 does not provide any such helpful mechanism.
It is fair to say that the Law Society is not helped by the structure of that
Act in terms of timetables". He believes that the way in which the complaints
procedures are structured in the legislation contributes to the length of time
it takes to process a complaint.58 The Law
Society told the Committee that it could improve turnaround times if it were able
to delegate the powers of the Council of the Law Society which currently deals
with complaints.59 77. There was a
general consensus in responses to the consultation that it would be useful for
the Ombudsman to be able to set target timescales and to monitor them. The Law
Society of England and Wales believes that the professional body should be engaging
in performance measurement and targets60
and the Office of the Immigration Services Commissioner (OISC) stressed that the
Ombudsman should be able to take action should such timescales not be adhered
to.61 It is clear, however, that timescales
will vary according to the circumstances of a case and that the Ombudsman would
have to take such factors into account when monitoring the performance of the
professional bodies. 78. The Committee believes that it is vital
that complaints are dealt with as speedily as possible, for the sake of both the
complainant and the solicitor. The Committee therefore recommends that the Ombudsman
should be given the statutory power to set appropriate target timescales and to
monitor adherence to them. Power to direct professional bodies
to investigate a complaint 79. There is a question over whether it
is appropriate for the professional bodies to categorise complaints. The Ombudsman
does not think that it should be the responsibility of the professional bodies
to decide what a complaint is - it is up to the complainant to decide, "the
professional bodies must have a flexible range of responses rather than simply
answering no or putting the complaint into a formal pipeline".62
There is therefore a concern about the number of complaints which the Law Society
does not investigate. The Ombudsman told the Committee that she is concerned that
1200 letters a year to the Law Society are not categorised as complaints and reported
a big rise in the number of complaints about solicitors which the Law Society
refused to investigate.63 It was suggested
in evidence that the Ombudsman should have the power to direct the Law Society
to investigate a complaint. The Scottish Consumer Council supports the introduction
of this power.64 80. The Committee
is concerned about the number of complaints which are not investigated by the
Law Society and believes that the power to direct a professional body to investigate
a complaint would help to ensure that there is independent input into the decision
about what constitutes a complaint. The Committee therefore recommends
that the Ombudsman should be given the discretionary statutory power to direct
professional bodies to investigate a complaint. Funding 81.
Under the present system, the professional bodies fund the complaints systems,
and the Government funds the Ombudsman. The Law Society recorded that dealing
with complaints cost £389,000 in 2000. The Ombudsman's office had a budget
of £185,000 for 2001-2.65 82.
It is clear that if the independent element of the system of co-regulation is
to be increased, there will be additional costs. The Committee consulted on how
any recommended changes to the system should be funded. A number of respondents
believe that the increased costs should be borne by the Government. The Faculty
of Advocates sees no justification for members of the Faculty providing any funding
for the "enlarged bureaucracy involved in some of the proposals before the
Committee". It believes that if the Executive considers that such reforms
are necessary, then it should fund the changes.66
Similarly, the Law Society believes that if the objective is to safeguard the
independence of the system, any recommended changes should be funded by the Scottish
Executive.67 83. There was however
wide support for the profession to provide funding for the increased costs. The
Scottish Consumer Council suggested a general levy on all firms and a "user
pays" element, which means that if a firm has a complaint against it, it
has to pay.68 Professor Paterson also subscribes
to this view.69 Scotland Against Crooked
Lawyers believes that there is merit in the idea of a sliding scale for lawyers
who are complained against constantly, so that it becomes "more and more
expensive for them" but explained that "the type of organisation that
we want would probably need some central Government funding".70
Many respondents believed that funding should be split between the Government
and the profession. It was thought to be important that the independent elements
were funded by the Government and not the legal profession. In England and Wales
there is a provision for the Ombudsman to be funded by the professional bodies,
although that provision has not been invoked to date.71 84.
The Committee acknowledges that increasing the powers of the Ombudsman will require
additional funding. The Committee believes that it is important that the
independent element of the system is not funded by the legal profession and recommends
that the Government should fund the increased costs incurred by the Ombudsman's
office as a result of the Committee's proposals. The Committee believes that the
professional bodies should continue to fund their own complaints systems. Recommendation
for reform 85. The Committee believes that the most effective
regulatory system is one that involves the legal profession taking direct responsibility
for setting its standards, monitoring compliance, and having primary responsibility
for providing consumer redress (as discussed below), but with the key dimensions
of lay involvement and rigorous independent scrutiny. The Committee believes that
the regulatory reforms outlined above will have a significant impact on the service
received by the consumer. The Committee also believes that there are a number
of reforms required to the way in which the professional bodies handle complaints,
as discussed below. The legal profession as a service
provider 86. Much of the evidence received by the Committee indicates
that the current complaints procedures operated by the Law Society are not satisfactory.
In only 50% of cases examined by the Ombudsman in 2000-01, there was a finding
that they had been handled adequately, fairly and thoroughly. The Ombudsman pointed
out that there was therefore "a large proportion of cases in which the professional
bodies are not working as well as they could and should".72
Similarly, the Scottish Legal Action Group (SCOLAG) does not believe that the
Law Society has performed its function of investigating complaints particularly
well, both from the perspective of the public and the profession.73
This view is echoed in the many submissions received from individuals who were
dissatisfied with the way that their complaint had been handled by the Law Society.
This poor performance can have a negative effect on both clients and solicitors
involved in the complaints process. 87. The Ombudsman told the Committee
that professional bodies do not approach the complaints process in a way that
is friendly to the consumer, "the professional bodies consist of lawyers
who regard a complaint as a legal battle to be pursued along the same lines as
a court case".74 It seems therefore
that any changes made by the Law Society to the complaints system have tended
to be as a result of pressure from the Ombudsman and others.75 88.
The Faculty of Advocates believes that there is a valid explanation for the lack
of consumer satisfaction experienced by complainants. It argues that there are
people pursuing complaints against lawyers who do so in pursuit of the original
grievance or issue which led to the trial or legal dispute in the first place,
rather than any "justifiable complaint against the service provided by the
professional involved". It claims that this is one of the major differences
between complaints of a consumer nature, where, unless there is something wrong
with the service the customer can be satisfied; and those involving the legal
profession, where, however competent the legal representation, very often the
losing party in a trial or litigation will be dissatisfied with the outcome.76 89.
The Committee believes that there are a number of ways in which the professional
bodies, particularly the Law Society, could improve their approach to handling
complaints, as discussed below. Law Society of Scotland
90. The Law Society is the statutory regulator of the solicitor
profession in Scotland. It was established by the Legal Aid and Solicitors (Scotland)
Act 1949 and is currently governed by the Solicitors (Scotland) Act 1980 (the
1980 Act). The majority of respondents to the inquiry gave evidence in connection
with the Law Society's complaints process. Dual role of the Law Society 91.
The Law Society is charged with the promotion of the interests of the solicitors
profession in Scotland and of the interests of the public in relation to that
profession. It has been suggested in evidence that there may be a conflict of
interest and that the Law Society cannot always represent both interests fairly.
Scotland Against Crooked Lawyers told the Committee that it is "impossible"
for the Law Society to represent both lawyers and clients.77
Research carried out in 1998 showed that this view is shared by others, with 50%
of those who responded during the research stating that they felt that their complaint
had not been dealt with fairly. The main reason given for this was that respondents
thought that the Law Society was protecting the solicitor, rather than looking
out for the complainer.78 The belief that
the Law Society could not represent both its members and the clients of solicitors
fairly is said to undermine public confidence in the complaints system.79 92.
Some see great merit in the Law Society balancing the interests of the profession
with the interests of the public. The Royal Commission on Legal Services, which
reported in 1980, considered that it would be detrimental to the interest of the
public if the Law Society were to be shorn of its responsibility to the public.80
The Executive has also indicated that it supports the dual role carried out by
the Law Society, "the duality that is imposed on the role of the Society
enhances the role and allows the public to benefit from a different and wider
approach by the Society".81 93.
The Committee recognises that the dual role performed by the Law Society in representing
both the public and the profession can result in the perception that there is
a conflict of interest or potential conflict of interest. This raises an issue
of principle as well as one of perception. The Committee believes that its recommendations
on augmenting the powers of the Ombudsman, creating a single gateway for complaints
and delegating the powers of the Council of the Law Society in dealing with complaints
to committees of the Law Society (see below, para 112) will help to change this
perception. 94. With regard to removal altogether of conflict of interest
or potential conflict of interest, this could be addressed by creating firewalls
between those in the profession who are subject to a complaint, and the complainant.
Such a system exists in England and Wales where the Office for the Supervision
of Solicitors has been set up to deal specifically with the handling of complaints
and has a guarantee of independence from the Council of the Law Society. The
Committee recommends that the Law Society consider the creation of firewalls,
namely by establishing procedures where there is a clear separation of interests
and demarcation between the interests of the complainer and the solicitor subject
to the complaint. Accessibility of the complaints system 95.
The Committee believes that it is crucial that the complaints system should be
accessible to all complainants. The Commission for Racial Equality highlighted
the importance of catering for the language needs of ethnic minorities and for
those who require information to be provided in particular formats.82
The point was also made that the complaints system should be affordable and the
Ombudsman wrote that there is currently no requirement or willingness to reimburse
the costs of an upheld complaint.83 In the
interests of transparency, some respondents suggested that the Code of Practice
should be displayed in all offices and/or issued to all clients. Another suggestion
was that a user friendly complaint form should be made available to clients. 96.
The Law Society argued that it strives to ensure that its complaints system is
accessible. It has had its leaflet "Dissatisfied with your solicitor"
reviewed by the plain English society and translated into various languages.84
It also highlighted that there is a telephone helpline available to members of
the public where they can receive assistance in relation to their concerns from
trained solicitors employed by the Law Society.85 97.
The Committee believes that it is vital that the complaints system is transparent
and accessible. The Committee recognises the work done by the Law Society in developing
its leaflet and helpline, but believes that more could be done to increase the
transparency and accessibility of the system. The Committee therefore
recommends that the Ombudsman should be given the power to make recommendations
on the operation of the complaints procedures of the professional bodies.
Setting Standards 98. The complaints handling system will
only be effective if the underpinning rules, codes and expectations are consumer
focussed. The Council of the Law Society may make rules for solicitors for regulating
professional practice, conduct and discipline of solicitors and incorporated practices.86
These rules are referred to as practice rules. The Council also published a code
of conduct for Scottish solicitors in 1989 which contains a statement of basic
values and principles, "which provide a succinct statement of the ethics
for solicitors".87 99. Some respondents
claimed that lawyers' understanding of how the law and the legal process operates
enables them to set standards. However, Professor Paterson pointed out that neither
the client nor the wider public have any input into the content of the standards
set by the Law Society. He indicated that in New South Wales, the Ombudsman could
scrutinise changes to rules made by professional bodies.88
The Ombudsman agreed that standards should be set jointly by the professional
and the consumer89 and strongly supports
an increase in consumer representation when the professional bodies are determining
rules, codes and what constitutes adequate professional service.90 100.
Many other witnesses supported clear standards to ensure that both clients and
solicitors are aware of what to expect. The WS Society believes that the profession
should have clear, public standards so that it knows what it is going to be judged
by and the public knows what they may complain about.91 101.
The Committee recommends that there should be lay involvement in the setting of
standards for professional bodies to ensure that the consumer's voice is represented
from the very outset. Law Society Complaints procedure 102.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 states that where
a person makes a complaint to a professional organisation that a solicitor has
been guilty of professional misconduct or has provided inadequate professional
services (IPS), the Law Society shall investigate the matter. In the first instance,
the procedure is to determine if there is an allegation relating to conduct or
service. This sifting process is undertaken by a legally qualified case manager.
If in terms of the 1980 Act there appears to be an issue with which the Law Society
can competently deal, namely that the person has an interest to complain, the
complaints system is invoked.92 103.
When it receives a complaint, the Law Society will, in the first instance, seek
to have the matter resolved between the firm and the dissatisfied client. This
process is referred to as conciliation. If a resolution is not found through conciliation,
a written investigation takes place involving correspondence between the dissatisfied
client, the Law Society, the solicitor involved and any relevant third party.
Once the written investigation has been concluded, a report will normally be prepared
by the reporter. The reporter may be a solicitor who is an elected or co-opted
member of the Council of the Society or one of the lay members and is selected
at random. This report contains, among other things, a recommendation for disposal.
104. Where a conduct complaint arises and the reporter believes that the
complaint should be upheld, the matter goes to a client relations committee which
then makes a recommendation to the Council of the Law Society for a decision.
In cases where the Council decides that the conduct amounts to professional misconduct,
it may be competent for it to recommend prosecution before the Scottish Solicitors
Discipline Tribunal. In some situations, the Council may be of the opinion that
the conduct complained of does not amount to professional misconduct but that
it is nevertheless conduct which would not be expected of a solicitor. In these
cases, the Council may express the view that the solicitor's conduct has been
unsatisfactory.93 105. If the complaint
relates to IPS, both sides are advised that if they accept the reporter's view
that will draw matters to a conclusion without any formal finding being made.
If not, the matter will go to a committee of the Law Society to reach a view and
make a recommendation to the Council for final determination. Definition
of a complaint 106. The issue of an appropriate definition for complaints
is key to the complaints process. The categorisation of complaints as either conduct
or service is often problematic and was raised by many individuals and organisations
in evidence to the inquiry. There is the additional issue of the overlap between
negligence and service complaints and the different processes involved in dealing
with them. 107. There are two definitions of a complaint against a solicitor:
inadequate professional services (IPS) and professional misconduct. Inadequate
professional services are defined as "professional services which are in
any respect not of the quality which could reasonably be expected of a competent
solicitor".94 Professional misconduct
is not statutorily defined but in a Scottish case of Sharp v The Law Society
of Scotland in 1984, the Inner House of the Court of Session laid down the
following, "there are certain standards of conduct to be expected of competent
and reputable solicitors. A departure from these standards which would be regarded
by competent and reputable solicitors as serious and reprehensible may properly
be categorised as professional misconduct".95
If the complaint relates to the adequacy of the solicitor's service a complaint
may be made only by the client who received the service. However, any member of
the public is deemed to have an interest in complaining if the complaint relates
to misconduct involving breach of rules or bringing the profession into disrepute.
The Law Society decides whether a complaint falls within either of these definitions. 108.
There appears to be confusion amongst consumers about the division of complaints
between IPS complaints and conduct complaints. The Ombudsman told the Committee
that the requirement to match a complaint with existing definitions can be problematic,
"the complaint must be fitted into those disciplinary rules and codes"
and often, "what the complainant puts before the Law Society ... to start
with does not come out, and is not addressed, at the other end".96
109. The root cause of the division is that the Law Society is working
with 2 sets of legislation, one about a code of conduct and the other about provision
of an adequate service. The Ombudsman believes that the Solicitors (Scotland)
Act 1980 and the Solicitors (Scotland) Act 1988 should be changed to leave one
piece of legislation to cover the wide range of complaints rather than 2 pieces
of legislation that split the complaints into the categories of conduct and service.97 110.
It was argued in many submissions that it should not be necessary for complaints
to be categorised in such a way. The Law Society of England and Wales believes
that rigid distinctions between kinds of complaints are unhelpful and "work
to the disadvantage of the consumer".98
One respondent said that "bad service is bad service!" and there is
no need for separate definitions of service and conduct.99
It was also pointed out in many submissions that there is often overlap between
the 2 categories of complaint. The Institute of Legal Executives (ILEX) claimed
that attempting to define and categorise complaints is a "fruitless task".
In practice, complex complaints will comprise elements of IPS and conduct.100
111. Professor Paterson was of the view that the tests for both professional
misconduct and IPS require amplification for clarity and consistency. He considers
the tests of terms of complaint to be "opaque".101
The Committee consulted on whether definitions of a complaint could be amplified
and clarified and how this could be achieved. 112. The majority of respondents
to the consultation agreed that the definition of a complaint should be clarified.
Some argued that the distinction between conduct and IPS is artificial and that
there should only be one definition of a complaint which is as wide as possible.
Some examples of such definitions were offered. The Ombudsman suggested that the
definition of a complaint could be "an expression of dissatisfaction with
the service provided by a legal practitioner" and "an allegation that
a legal practitioner had breached the relevant code of conduct".102
The Law Society of England and Wales agrees with the suggestion that "a complaint
is an expression of dissatisfaction whether justified or not".103
The Law Society accepts that the definition of a complaint could be clarified
by redefinition in statute. This change could be supported by educating the profession
and the public about the new definitions.104 113.
The Committee is encouraged that there is such support for clarifying and simplifying
the definition of a complaint. The Committee recommends that the distinction between
conduct and IPS complaints should be removed. A "complaint against a solicitor"
should be redefined in statute, and the new definition should be simple and widely
drawn. This should be supported by an education campaign aimed at both the profession
and the wider public. Negligence 114. "Poor quality
of advice" matters cannot be treated as complaints by the professional bodies
as these have to be pursued in the courts as negligence. Evidence received by
the Committee strongly indicates that there is a difficulty in pursuing negligence
complaints against solicitors. 115. In its consultation paper, the Committee
invited views on whether the professional bodies should be encouraged to investigate
small negligence claims within the complaints procedure, rather than rejecting
these on the basis that the complainant may seek redress through the courts. A
number of respondents agreed that quality of advice given should be a matter that
can be complained about and that professional bodies should therefore be encouraged
to investigate negligence claims. 116. However, responses to this proposal
were mixed. Professor Paterson summed it up in saying that this is "a thorny
problem because legal principle and history pushes in one direction and a pragmatic,
consumer oriented concern pushes in another".105
A number of respondents do not believe that it is appropriate for professional
bodies to investigate cases of negligence as such cases are a matter for law not
practice. Some pointed out that the civil court system includes a small claims
procedure and that liability for negligence is a matter properly for the courts
to deal with. One individual was not in favour of professional bodies being encouraged
to investigate small negligence claims within any complaints procedure as he believes
that this could cause a severe conflict of interests and breach the human rights
of solicitors. 117. Some respondents pointed out other potential pitfalls.
One firm of solicitors agreed with the idea in principle, but warned that some
complainers will use the procedure as a test run for a negligence case in court.106
ILEX claimed that it is not apparent where the line could be drawn, resulting
in a danger that a complaint could be seen as "a cheap alternative to court
proceedings".107 118. Other respondents
suggested capping the amount of compensation attainable through this procedure.
The Ombudsman agreed with this idea as long as the cases investigated are within
the maximum level of compensation of £1,000.108
However, the Scottish Consumer Council "can see no reason in principle why
the Society should not be able to deal with negligence complaints of any value".109
The Law Society of England and Wales told the Committee that it already deals
with IPS cases which may have an element of negligence. Compensation available
for such cases is £5,000. They are also in discussion with the Legal Services
Ombudsman for England and Wales and their insurers about arrangements for dealing
with claimants in person who wish to pursue a negligence claim against their solicitor.
This is typically in cases whose value would be slightly higher than the IPS jurisdiction
of £5,000 but still within a limit regarded as low value by the insurers.110 119.
SLAB welcomed this suggestion to the extent that it would speed up the process
of dealing with complaints. They said that complainants have to wait for the outcome
of a negligence case before the Law Society will investigate their complaint and
that this can result in delay.111 However,
Professor Paterson explained that it is now possible for the Law Society to investigate
an IPS claim at the same time as the client is pursuing a negligence claim through
the courts.112 The Faculty of Advocates also
stressed that the potential for a court action based on negligence is not of itself
a bar to complaint proceedings under the Faculty's rules.113
The Committee notes that the 1980 Act provides that a direction for a solicitor
to pay compensation as a result of IPS shall not prejudice the client's right
to take proceedings against that solicitor for damages and that any sum paid to
the client as compensation for IPS may be taken into account in the calculation
of any award of damages for negligence.114 120.
Individuals have reported to the Committee that a person alleging negligence on
the part of a solicitor faces great difficulties in finding another solicitor
willing to act against a fellow professional. The Law Society may, where it is
approached by such a person, use what is called a Troubleshooter scheme. This
involves referring the complainer to a senior solicitor with relevant experience
who will assess whether or not the complainer has a good claim. 121. The
Committee received evidence from individuals with experience of the complaints
procedure that the Troubleshooter scheme is not effective. Scotland Against Crooked
Lawyers claimed that the Troubleshooter scheme does not work, "it is manipulated
and it is not carried out in good faith".115
The Law Society told the Committee that the difficulty may be in finding a solicitor
who would be prepared to take on a case if there was no merit in the case.116
The Faculty of Advocates also pointed out that it is a "breach of professional
duty for a lawyer to take on a case which is not judged to be stateable, particularly
where public funds are involved".117
Whilst the Committee recognises that it is for a legal professional to decide
whether there is merit in a case, it is clear from evidence that some lawyers
are not prepared to act against their peers and that the Troubleshooter scheme
is not effective. 122. The Committee is aware that professional
bodies are often too ready to reject a complaint on the basis that it involves
negligence, where it may be that IPS is also involved. This is clearly linked
to the interpretation of the term IPS. The Committee acknowledges that it is already
possible for professional bodies to investigate complaints which involve both
IPS and negligence, but it appears that many are rejected on the grounds that
the complaint should be pursued through the courts. The Committee therefore highlights
that the professional bodies should investigate the IPS element of a complaint,
even where there may also be allegations of negligence. The single gateway and
the new power of the Ombudsman to direct a professional body to investigate a
complaint will play an important role in ensuring that such IPS complaints are
investigated and not dismissed as negligence to be pursued through the courts. 123.
The Committee recommends that the Law Society should examine its procedure for
dealing with complaints involving negligence and consider setting up an arbitration
scheme for dealing with such complaints. The Committee also recommends that the
Law Society should examine the merits of the Troubleshooter scheme and report
back to the Committee on other ways of addressing problems experienced by complainants
in pursuing negligence cases in court. Finally, the Committee recommends that
the Scottish Executive should examine the merits of allowing professional bodies
to investigate small negligence cases up to a certain financial limit, and report
back to the Committee on its findings. Redress 124.
Many witnesses believe that the current system does not focus adequately on consumer
redress. Recent research found that where the Law Society had disciplined the
solicitor, half of complainers were unhappy with the outcome usually because they
considered the sanction to be inadequate.118
125. Such consumer dissatisfaction is often linked to the distinction between
IPS and conduct complaints. There is no facility to award compensation if the
complaint is about an individual solicitor's conduct whereas a complaint classified
as inadequate professional service would, if upheld, enable the Law Society to
order a number of sanctions including compensation (not exceeding £1,000)
or the waiving of fees. Where a conduct complaint has been made, the Law Society
can "regret or deplore the unprofessional or unsatisfactory conduct"
of a solicitor. The solicitor is written to, but no record of the finding is kept
on the solicitor's record at the Law Society and there is no facility to award
compensation, costs or a refund or abatement of fees.119
The case may also be referred to the Scottish Solicitors Discipline Tribunal.
Whilst these sanctions punish the individual solicitor, they do not provide redress
to the client. 126. Many believe that the lack of redress for the complainer
for conduct complaints should be addressed and that the Law Society needs greater
disciplinary powers with respect to such complaints. The Ombudsman explained that
this tension in the complaints handling process is caused by the fact that the
system is used both to provide consumers with redress and as a means of enforcing
professional discipline.120 The Scottish
Consumer Council supports this view, "some of the evidence that we have heard
is that people feel that when a matter goes to the disciplinary tribunal - where
the solicitor is disciplined - that does not address their complaint. Rather it
addresses the professional competence and future of that solicitor".121
127. The Committee consulted on whether compensation should be offered
for a complaint about an individual solicitor's conduct and if so, under which
circumstances. A large number of respondents argued that compensation should be
paid for professional misconduct and that compensation offered should be equal
to loss sustained. The Law Society of England and Wales believes that compensation
should be available when a complainant has clearly suffered distress and inconvenience
and where there is a clear failure by the solicitor to communicate adequately
or deal efficiently with the client (whether or not there is a finding of misconduct).
In England and Wales most awards relate to IPS but compensation can be awarded
for hybrid cases.122 SCOLAG also agrees that
compensation should be available in conduct cases and that any client who has
suffered some loss or hardship should be recompensed "it is not sensible
that such remedies are limited by the nature of the complaint being made".123 128.
This proposal is not popular with some practitioners. The WS Society did not believe
that compensation should be given in respect of misconduct, "conduct is personal
to a solicitor: if it is not good enough, then the solicitor has to suffer accordingly
in terms of his professional reputation and even the possibility of making a living".124
Another respondent claimed that Scots law has never accepted punitive damages
and that this would be unpopular with the profession.125
The Law Society pointed out that compensation could only be awarded if it could
be established that loss were suffered by a dissatisfied client as a direct result
of the solicitor's conduct. If compensation were to be offered following a complaint
about an individual solicitor's conduct, this would have to be determined by the
Scottish Solicitors Discipline Tribunal.126 129.
The Committee believes that redress should be available to the complainant regardless
of the classification of the complaint. The Committee therefore recommends that
compensation should be offered for a complaint about an individual solicitor's
conduct where it is established that loss has been suffered as a direct result
of the solicitor's conduct. Compensation levels 130.
The 1980 Act sets at £1,000 the maximum level of compensation which the Law
Society or the Scottish Solicitors Discipline Tribunal may order a solicitor to
pay a client in relation to inadequate professional services. The maximum award
of £1,000 has not been increased since 1990. The Scottish Executive told
the Committee that Scottish Ministers are content in principle to increase these
levels of compensation. As the figures were prescribed on the face of the statute
however, primary legislation will be necessary. The Scottish Executive said that
it is necessary to await a suitable legislative opportunity for that purpose.127 131.
In its consultation paper, the Committee indicated that it favours increasing
the maximum level of compensation which a solicitor can be ordered to pay a client
in relation to inadequate professional services with a provision for regular increases
in the maximum compensation and sought views on what the maximum level of compensation
should be. 132. There was overwhelming agreement in responses to the consultation
that the maximum level of compensation should be increased and linked to the annual
rate of inflation. There was also the suggestion that compensation levels should
be reviewed regularly by an independent body. Some argued that the maximum level
should be removed completely so that the level of compensation can be based on
individual cases. Other respondents suggested a range of maximum levels from £2,500
to £100,000. The current maximum award for compensation for inadequate professional
services in England and Wales is £5,000. The Law Society of England and Wales
considers this to be appropriate.128 133.
Given that the maximum level of compensation has not been increased since 1990,
the Committee believes that it should be uprated and kept in line with inflation
thereafter. The Committee does not accept that there should be no maximum limit,
as there have to be parameters within which those awarding compensation can work.
The Committee recommends that the maximum compensation level should be
increased to £5,000 with a mechanism for annual uprating in line with inflation.
134. Professor Paterson argued that there is a lack of consistency
in the awarding of compensation and that guidance should be issued, "unless
the Committees of the Law Society are given more guidance than they currently
receive, there is no mechanism to achieve consistency of results; consistency
is very important in a complaints procedure".129
135. The Committee believes that there should be consistency in
the awarding of compensation and supports the suggestion that the professional
bodies should issue guidance on this matter in order that the consumer knows how
the award has been determined. Such guidance should be placed in the public domain.
This will be particularly important given the proposed delegation of powers (as
discussed below). Delegated powers 136. Under the
1980 Act, the Council of the Law Society has to look at each complaint made to
the Law Society and to determine the outcome. The Council of the Law Society comprises
of 51 solicitors who are elected on a geographical basis or who are co-opted,
such as people in public service or in-house lawyers. There is no lay involvement
in the Council.130 137. The lack of
lay involvement in the Council raises serious questions about the fairness of
the complaints process. Some witnesses claimed that there is an imbalance of power,
as a solicitor can lobby a Council member to argue his or her case before the
Council, but a complainant is unable to do so. The Law Society claimed that it
would be possible for the recommendation to be spoken to by the Convener of the
relevant Client Relations Committee and that "from an adversarial point of
view, there would be someone representing each side of the case at the Council".131
Professor Paterson does not agree, "the system that allows a solicitor to
speak on behalf of a constituent member in Council appears to be unfair to observers
because nobody is instructed to appear on behalf of the complainer - the other
side - in the adversarial procedure that then ensues in Council".132
The Law Society pointed out that the recommendation which goes to the Council
is from the client relations committee which has lay involvement, "the Council
does not rubber-stamp the decisions or recommendations of committees, although
those recommendations are followed in most cases. The committees consider the
matter in depth and, in general, the Council is satisfied".133
138. It has been suggested that the requirement for all complaints to go
to the Council of the Law Society results in some complaints being thrown out
at an earlier stage. The Ombudsman told the Committee that the Law Society is
trying to keep complaints to a manageable level, especially now that they all
have to go to council, but that the policy has misfired and means that a lot of
valid complaints are not getting aired.134 139.
In its consultation paper, the Committee indicated that it favours the introduction
of delegated powers to allow final decisions about complaints to be made by committees
of the Law Society rather than the Council and sought views on that point. Views
on the introduction of delegated powers were split down the middle. Many respondents
to the consultation agreed with the suggestion, with some respondents stressing
that the basic principle of non-lawyer involvement should be firm. Other respondents,
particularly individuals with experience of the complaints system, did not agree.
This was largely based on the argument that complaints handling should be taken
out of the hands of lawyers altogether. 140. The Law Society believes that
there should be lay involvement in the final decision on complaints regarding
service, but not conduct, "the fact that the service complaints have to go
before the Council, which has no lay involvement, is not helpful. In matters where
there is determination of a solicitor's conduct and potentially, prosecution before
the Scottish Solicitors Discipline Tribunal, it should perhaps be reserved to
solicitors to determine".135 141.
The Committee believes that it is unfair that the adversarial approach to dealing
with complaints in the Council does not allow the complainant the opportunity
to be heard, whereas solicitors can lobby Council members to present their case.
The Committee is also concerned that the requirement for the Council to consider
every complaint slows down the process and contributes to time delays in addressing
complaints. The Committee recommends that the power to determine the outcome
of all complaints should be delegated to committees of the Law Society.
Council of the Law Society of Scotland Bill 142.
On 6 September 2002, David McLetchie introduced the Council of the Law Society
of Scotland Bill. The Bill aims to remove any doubt about the powers of the Council
to delegate their statutory functions to a committee or sub-committee or some
other person; to provide for the appointment of sub-committees in the scheme for
the constitution of the Council and to provide that in that scheme for the appointment
of lay persons to be members of a committee or sub-committee and for the lay persons
so appointed to form a majority in the committee or sub-committee to which they
have been appointed. The Justice 1 Committee has been named as the lead Committee
on that Bill and will issue its Stage 1 report on the general principles of the
Bill in December 2002. Conciliation 143. When it receives
a complaint, the Law Society will seek to have the matter resolved in the first
instance between the firm and the dissatisfied client. This process is referred
to as conciliation. Research recently carried out for the Scottish Consumer Council
found that many complainers did not find the offer of conciliation helpful and
that many solicitors did not deal effectively with complaints at the outset.136
4 in 10 respondents who approached their solicitor first with their complaint
said they either refused to investigate the matter or completely ignored the complaint.137 144.
The Law Society does not require either individual solicitors or firms of solicitors
to have a recognised system to address complaints.138
The Scottish Consumer Council recommended that a practice rule that requires firms
to have a complaints procedure, with a delegated person to deal with complaints,
should be "the fundamental building block of a new regime".139
It explained that some legal firms have a person who is responsible for handling
complaints procedure, so there is good practice out there, "that is not an
innovation to allow firms to avoid complaints, but one that expresses their desire
to have a good relationship with their consumers".140
SCOLAG also suggested that all firms should have an internal complaints procedure
and that information about this procedure should be freely available to all clients.141 145.
In its consultation paper, the Committee indicated that whilst it favours strengthening
the conciliation process, requiring firms to have a complaints procedure, with
a delegated person to deal with complaints, it also recognises that such a procedure
could be problematic for small firms and sole practitioners. The Committee sought
views on how the conciliation process could be strengthened in practice. 146.
The Law Society agrees that the conciliation process would be strengthened by
requiring firms to offer conciliation in all complaints.142
However, this proposal might not be universally welcomed by the profession. The
WS Society does not believe that it is desirable that all firms have a complaints
procedure.143 147. It was argued by
many that the problems which conciliation presented to small firms were not insurmountable.
There was the suggestion that where a sole practitioner cannot provide a designated
person to deal with complaints, the matter could be dealt with through the appointment
of an independent outside solicitor from another firm. It was also suggested that
the Law Society or the local bodies of solicitors could appoint a solicitor to
deal with the matter. One firm of solicitors was not keen on that idea, as it
could involve local solicitors gaining access to the files of a competitor. 148.
Professor Paterson told the Committee that there is limited research evidence
as to how well the conciliation process works in the case of Scottish firms, "the
lack of neutral conciliators provides no protection to clients where there is
an imbalance of power and knowledge. It is not clear that using other local practitioners
will be perceived by the public as bringing in a neutral conciliator. It is important
that conciliation does not become a major inhibitor to clients with genuine complaints".144
One individual suggested that conciliation should be carried out by an independent
body, such as ACAS, and not by legal professionals. 149. SCOLAG suggested
that the Law Society could provide more training and advice in developing complaints
procedures and awareness of the benefits of conciliation services and that many
complaints could be dealt with by way of recognition of the problem and an apology
from the solicitor and possibly recompense before involving the Law Society.145
SLAB operates a code of conduct for criminal legal aid cases with the provision
of a compliance partner who is responsible for receiving and handling inquiries
concerning compliance issues and ensuring that necessary action is taken in the
event of any non-compliance. Its experience in dealing with criminal firms has
not suggested that this arrangement is particularly problematic for small firms
or sole practitioners. The Law Society is currently researching mechanisms for
providing conciliation services to small firms and sole practitioners.146 150.
Some individuals with experience of the complaints procedure argued that the conciliation
process is a "waste of time". Others believed that there is no point
in strengthening the conciliation process and that the only answer is an independent
body which removes the legal profession from the process altogether. 151.
The Committee believes that the conciliation process is key to the complaints
handling system and could resolve many complaints at an early stage. The
Committee recommends that the conciliation process should be strengthened and
that a practice rule should be introduced to require firms to have a complaints
procedure, with a delegated person within a firm to deal with complaints. The
Committee also recommends that conciliation services should be provided to small
firms and sole practitioners and that the conciliation process should have strict
time limits to ensure that it is not used as a method to stall genuine complaints. Lay
involvement 152. The Law Society claims that one way in which it balances
the duality of its role of representing both the profession and the public interest
is to have lay members on committees which investigate complaints before they
are remitted to the Council for a final decision.147
It says that it has increased lay involvement in the process. On the Client Relations
Committees, which deal with complaints, there are 10 members, 4 of whom are non-solicitors.148 153.
Whilst the Ombudsman acknowledged that steps have been taken in the right direction
to increase lay involvement,149 she still
describes the level of lay membership and input into the Law Society's complaints
system as "patchy".150 In addition,
it has been suggested by Professor Paterson that lay members often do not have
sufficient information made available to them, "all too often, lay members
do not get the additional guidance that I would like them to have".151 154.
The Committee consulted on whether lay involvement in the complaints process for
the Law Society and the Faculty of Advocates should be increased and if so, how
this could be achieved. The majority of respondents to the consultation were in
favour of strong lay representation in the complaints process. There were varying
views on appropriate levels of lay involvement. The Scottish Consumer Council
recommends that where there is self-regulation, up to 75% of the governing body
should be independent.152 Some supported
a 50% lay representation, but the Scottish Law Agents believes that it should
not exceed 50% on the basis that a greater level of lay involvement would create
a risk of "inconsistent and erratic decisions".153
The WS Society believes that solicitors should be in the majority on any body
which decides about misconduct but that there is scope for increasing lay involvement
in dealing with service complaints.154 The
Law Society agrees that lay involvement could be increased and points out that
section 2 of the Council of the Law Society of Scotland Bill provides for this.155 155.
The Law Society currently recruits lay people by placing public notices in a number
of national newspapers inviting people to apply. Applications are vetted by a
panel chaired by someone from outwith the Society with relevant knowledge, such
as a Sheriff. A current lay person together with a member of the Society are also
on the panel. There were a number of suggestions about the way in which lay people
could be selected. It was suggested that every councillor in Scotland could nominate
a person. There was also the suggestion that lay representatives should be recruited
through consumer organisations. The Ombudsman suggested that lay people should
be appointed through the public appointments process.156
156. The Ombudsman warned that lay involvement does not automatically secure
fairness and thoroughness.157 Some individuals
echoed this view and suggested that increasing lay involvement is a cosmetic exercise
as lay persons can be manipulated. 157. The Committee believes that lay
involvement in the complaints process is crucial for promoting consumer confidence.
The Committee recommends that lay representation on committees dealing with all
complaints should be at least 50%. Scottish Solicitors
Discipline Tribunal 158. The Scottish Solicitors Discipline Tribunal
deals with complaints of misconduct and of inadequate professional services. The
referral process starts with a complaint which, in almost 99.9% of cases, comes
from the Law Society.158 It is also possible
for clients to directly approach the tribunal. However, as the tribunal has no
powers of investigation, such cases are frequently remitted to the Law Society
for investigation.159 The constitution of
the Scottish Solicitors Discipline Tribunal states that it should have "not
less than 10 and not more than 14 members who are solicitors recommended by the
Council" and "8 members who are neither solicitors nor advocates".160
159. The Scottish Solicitors Discipline Tribunal is of the view that the
range of sanctions available to it is sufficient.161
It can strike a person off, suspend them, fine them up to £10,000 or censure
them (and censure and fine them). It can also restrict an advocate's practising
certificate and award compensation (£1,000) where there is a service complaint.162 160.
The Council recommends the solicitor membership of the Scottish Solicitors Discipline
Tribunal who are then appointed by the Lord President. This creates a perception
that it is not entirely separate from the Law Society. The Law Society pointed
out that, "people - including solicitors - seem not to understand that the
Scottish Solicitors Discipline Tribunal is an independent body".163
However, Professor Paterson believes that it is uncomfortable that the Law Society
nominates members of the tribunal and would have no difficulty about removal of
that system.164 The Law Society has suggested
that the independence of the Scottish Solicitors Discipline Tribunal could be
underscored by responsibility for appointing members of the tribunal being transferred
from the Lord President to the Judicial Appointments Board.165 161.
The Committee is concerned that the perception is that the real power rests with
the lawyers, especially given that the Chairperson is a lawyer. The Committee
considered whether the Law Society could increase the perception that the Scottish
Solicitors Discipline Tribunal is a separate body by having a non-lawyer as Chairperson.
However, the Scottish Solicitors Discipline Tribunal thinks that it is better
for the tribunal to have a legally qualified chairman because many legal points
come up in hearings and it must adhere to the rules of evidence. The Scottish
Solicitors Discipline Tribunal told the Committee that "the process of hearing
evidence and making a proper judgement of a solicitor's supposed misdemeanours
depends to a great extent on knowledge of normal practice in the solicitor's profession
and on complex and arcane matters, of which lay people are quite ignorant"
and that "lay members' voices are always heard as much as those of the solicitor
members".166 162. The Solicitors'
Discipline Tribunal is funded by the Law Society but it insists that "the
fact that the Law Society funds us does not mean that it can influence us".167 163.
The Committee believes that the independence of the Scottish Solicitors Discipline
Tribunal would be enhanced if its solicitor members were appointed by an open
selection process rather than recommended by the Law Society and appointed by
the Lord President and if lay membership were increased. The Committee
recommends that members of the Scottish Solicitors Discipline Tribunal should
be appointed by an open selection process. The Committee also recommends that
the membership of the Scottish Solicitors Discipline Tribunal should be made up
of 50% lay people. It should also be possible for the Scottish Solicitors Discipline
Tribunal to be chaired by a lay person, with the assistance of a legally qualified
clerk. Finance Scottish Solicitors'
Guarantee Fund 164. If members of the public suffer financial loss because
of a solicitor's dishonesty, a claim may be made against the Scottish Solicitors
Guarantee Fund. However, the Council of the Law Society may require a person applying
for a payment from the guarantee fund to firstly pursue other remedies which may
be open to that person (e.g. taking court action for recovery of money from the
solicitor in question). 165. In addition, every legal practice in Scotland
is inspected routinely every two years to check on the use of client funds. Some
respondents were of the view that this system works well to protect client funds.
Others suggested improvements to the system such as spot checks in addition to
the two yearly routine checks. Professional Indemnity Insurance 166.
The Law Society has the power to provide and to require solicitors to have professional
indemnity insurance and does so through the Solicitors (Scotland) Professional
Indemnity Insurance Rules 1995 and a master policy scheme. The master policy provides
cover in respect of negligence claims as well as indemnifying solicitors in respect
of claims arising out of any alleged dishonest, fraudulent, criminal or malicious
act or omission. Claims under the master policy are investigated by the insurers
(Marsh UK). The insurers operate in accordance with a claims handling philosophy
which has been approved by the Law Society. 167. Where negligence is alleged,
complainers must pursue it through the master policy or if necessary the courts.
Many complainers have had difficulties in pursuing a claim under the master policy.
This can be a lengthy and distressing experience. For one respondent it took 11
years to receive a settlement. The Committee believes that such delays are unacceptable.
168. The Scottish Consumer Council argued that the current procedure lacks
transparency and gives some complainers the impression that insurers are "in
league with solicitors and the Law Society".168
Some people think that this is because solicitors have a financial interest -
their premiums - in keeping down the payments from the master policy. There is
also the perception that there is less subrogation than there might normally be,
for if a solicitor is found to have been negligent, the consequences can be far
reaching. A settlement against a solicitor could be seen as an indictment of that
solicitor which can be more important to them than any financial considerations. 169.
Marsh UK, the Company which operates the master policy, told the Committee that
solicitors cannot control the quantum of any claim because that is a matter of
law, "the level of awards cannot be influenced in the way that is being implied".
They assured the Committee that the Law Society is not in a position to influence
the level of settlements or the conduct of the insurers one way or the other.169
Marsh UK did admit however that some solicitors are resistant to the insurer's
settlement or proposed settlement of a claim170
and that insurers expect to have their insured "on side" with them in
every aspect of a claim, "as the master policy is to protect the legal profession,
there is a desire not to fall out with your insured client".171 170.
Professor Paterson commented that the operation of the guarantee fund and master
policy is not monitored by an external regulator. He believes that it should be
the subject of scrutiny by the Ombudsman.172
The Scottish Consumer Council agrees and pointed out that the Ombudsman in New
South Wales has this power.173 171.
The Committee is aware that lengthy delays in receiving settlements from the master
policy have caused distress to a number of individuals. The Committee
recommends that the Scottish Executive should examine ways in which the operation
of the guarantee fund and the master policy could be made subject to external
regulation and report back to the Committee on its findings. Faculty
of Advocates 172. The Faculty of Advocates (the Faculty) has a
statutory duty to deal with complaints in relation to professional misconduct
and inadequate professional services.174
The Faculty has recently agreed to revised Disciplinary Rules. Under the previous
system, complaints about the behaviour of advocates were made to the Dean of the
Faculty, although the Dean could also act without receiving a complaint. The Dean
could deal with any complaints personally - either with or without asking an investigatory
committee to provide a report on the matter. The Dean could also remit complaints
to a Disciplinary Tribunal. This tribunal has the power to impose greater penalties
than the Dean, although any penalty imposed was still subject to the approval
of the Dean.175 173. The Dean told
the Committee that there will be some changes to the complaints system following
the review. These changes are outlined in the revised Disciplinary Rules. For
example, the Dean currently decides at the early stage of a complaint whether
the complaint should be dismissed. Under the new rules, that decision could only
be taken by a complaints committee, which would include two members of the Faculty
and at least one lay representative. If further investigation were required, the
complaints committee - formerly the Dean - would remit the matter to an investigating
committee composed of members of the Faculty to investigate and report. If the
matter could be resolved at that stage the complaints committee would deal with
it and would have a range of possible disposals, from admonition to a fine of
up to £5,000. Anything above that would be a matter for the Disciplinary
Tribunal.176 174. The Disciplinary
Tribunal is made up of a chairman, a retired judge, 2 lay members and 2 practising
advocates. A matter can be referred to the tribunal to impose a penalty when a
complaint has been determined as justified and to deal with a determination as
to whether a complaint is justified and if it is to impose a penalty.177
The Disciplinary Tribunal can impose any penalty available to a complaints committee,
as well as a fine not exceeding £15,000, suspension from practice, and suspension
or expulsion from membership of the Faculty.178 175.
The Ombudsman indicated that the Faculty of Advocates approach to handling complaints
is generally good, "I have always been satisfied with the quality of the
response. The Dean has always addressed exactly the point that the member of the
public has made and has not pushed people into the formal complaint process".179
Similarly, SCOLAG claimed that whilst the Faculty of Advocates has conflicting
interests, there is no evidence from the Ombudsman's reports over the years that
this conflict results in dissatisfaction, or that complaints are handled other
than fairly. SCOLAG is therefore of the opinion that any significant changes ought
only to be made in relation to the Law Society.180
The Faculty told the Committee that despite the fact that its membership has more
than doubled over the past decade, the level of complaints received by the Faculty
against its members is consistently at a very low level.181 176.
The way in which the Faculty of Advocates categorises complaints does not appear
to present the same problems as the definitions to which the Law Society has to
work. It defines a complaint as any written complaint about the conduct of an
advocate which seems to be adequately wide ranging.182 177.
Some issues about the Faculty's complaints system have been raised during evidence
to the Committee. For example, it seems to be largely concerned with conduct matters,
rather than service matters. There is also a difficulty for complainants in obtaining
compensation. The Ombudsman told the Committee that the Faculty's handling of
complaints allows no consumer redress and is based entirely on an internal disciplinary
code. If the client is in pursuit of compensation, this must be pursued by a negligence
action through the courts.183 178.
It was put to the Faculty that it should pay compensation to the complainer but
it does not believe that this would be appropriate, "if we were to introduce
compensation, I fear that we would run the risk of intermingling two quite different
issues: the monitoring and regulating of professional standards, conduct and ethics
by the faculty; and the redress of loss sustained". The Faculty believes
that its jurisdiction is to "maintain, enhance and monitor professional standards,
not to trespass on the role of the court in adjusting losses and dealing with
compensation or damages".184 179.
The Committee believes that there should be redress where complaints have been
upheld. The Committee recommends that the Faculty of Advocates should
offer compensation of up to £5,000 for upheld complaints which relate to
IPS, and for complaints about an individual advocate's conduct where it is established
that loss has been suffered as a direct result of the advocate's conduct.
180. The issue of transparency was also raised in submissions to the Committee.
SLAB185 and the Ombudsman186
suggested that the Faculty should prepare an information sheet to be sent to all
complainers providing a brief outline of the way the Faculty deals with complaints
as such written information does not currently exist. 181. The
Committee recommends that the Faculty should prepare an information sheet to be
sent to all complainers providing a brief outline of the way the Faculty deals
with complaints. 182. The revised disciplinary rules state that
there should be 1 lay person on complaints committees and 2 lay people on the
disciplinary tribunal (out of a total membership of 6 (excluding the Chair who
is a retired judge).187 Margaret Ross of
the University of Aberdeen Law School pointed out that there is less lay input
in the Faculty of Advocates complaints procedure than that of the Law Society.188
However, the Faculty told the Committee that lay membership has been increased
by recent reforms, "the Faculty believes that lay involvement at all stages
is a good thing, which should improve the robustness of and public confidence
in the system".189 183.
The Committee recommends that lay representation on committees dealing with complaints
against advocates should be at least 50% and that there should be 50% lay membership
on the disciplinary tribunal. Complaints involving solicitors
and advocates 184. Some evidence suggested that better procedures should
exist for involving some solicitors in the handling of complaints against counsel
and for dealing with complaints that involve both solicitors and counsel in an
integrated fashion. 185. The Committee recommends that the Law Society
and the Faculty of Advocates should produce a procedure for dealing with complaints
which involve both solicitors and advocates, in consultation with the Ombudsman.
Legislation 186. The Committee
acknowledges that legislation will be required to implement many of its recommendations
and invites the Executive to report back to the Committee on these proposals.190
ANNEX A: JUSTICE 1 COMMITTEE, REGULATION
OF THE LEGAL PROFESSION INQUIRY CONSULTATION PAPER Introduction 187.
This paper sets out the background to the Justice 1 Committee's inquiry into the
regulation of the legal profession. It also identifies key issues and options
considered by the Committee. Comments are invited on the discussion points set
out on pages 9-14 of the paper and summarised in Annexe A. Comments should be
submitted by Wednesday 26 June 2002 to: Jenny
Goldsmith, the Justice Committee Clerking Team, the Scottish Parliament, Room
3.11, Committee Chambers, George IV Bridge, Edinburgh, EH99 1SP. Telephone 0131
348 5227; Fax: 0131 348 5252; Email: justice.committee@scottish.parliament.uk Remit
of the Inquiry 188. The Committee formally announced the remit
of its inquiry on 19 June 2001. The original remit was to investigate the effectiveness
of the current approach to and framework for the regulation of the legal profession
and of legal services in Scotland. The Committee's intention was that the inquiry
should be broad in scope, covering all branches of the legal profession within
Scotland, other groups working within the legal system and/or providing advice
or assistance in relation to legal issues. Thus, the initial scope of the inquiry
included: advocates, solicitors (including solicitor advocates), qualified conveyancers
and executry practitioners, judges (including sheriffs and justices), fiscals
and sheriff officers, as well as groups offering advice or assistance in relation
to legal issues though lacking formal legal qualifications. 189. Having
gathered evidence based on the remit outlined above, the Committee agreed that
the original remit was too wide both in terms of the bodies covered and the range
of regulatory matters under investigation. In a press release on 25 October 2001,
the Committee set out a refined remit for the inquiry, stating that the system
of complaints against people working in the legal profession would be the primary
focus of its inquiry, thus excluding the activities of non-professional legal
services. 190. Specifically, the revised terms of reference stated the
Committee's intention to investigate: · the existing systems and procedures
for dealing with complaints (including the definition of complaints, whether there
are complaints/grievances that are excluded and the reasons for this); ·
the nature of complaints currently dealt with; · the effectiveness
of the complaints systems and perceptions of their effectiveness; ·
comparative models and their effectiveness, and; · how complaints systems
can be improved. 191. At its meeting on 5 February 2002, the Committee further
refined the terms of reference by agreeing not to consider the judiciary as part
of its inquiry. 192. The remit therefore became focussed specifically on
the legal profession (but excluding judges and non-regulated legal services) and
on complaint handling within the profession rather than other regulatory issues.
At that time, the Committee acknowledged that it would have been unrealistic to
expect all the matters within the remit to have been addressed within the timescale
established. The Committee reserves the option of dealing with these issues at
a later stage. 193. The focus on complaint handling by the legal profession
was considered to be appropriate at this stage of the inquiry, given that the
majority of respondents to the call for evidence wrote about solicitors and the
Law Society's complaints system. In addition, although complaint handling is a
very small component of self-regulation, it is, in the words of the Scottish Legal
Services Ombudsman "the public face of regulation" which "acts
as a measure of effectiveness" (Annual Report 2000-2001, p. 7). Evidence 194.
To date, the Committee has received 121 responses to the inquiry. Of these responses,
approximately half are from individuals, and half from professional bodies, consumer
groups, lobby groups, academics, etc. 195. The written submissions to the
inquiry presented a very clear division between those who argued for an independent
system, and those who wished to retain self-regulation in its present form. The
individuals who wrote about their particular cases were very critical of the present
system. 196. The Committee agreed that it would not pursue individual cases
or complaints, but that it would examine the main issues arising from the individual
cases to explore how the system works in practice and the difficulties experienced.
Therefore, the Committee agreed not to call individuals to give oral evidence
for this inquiry or to call for the release of further information on individual
cases. 197. After the deadline for the call for evidence, the Committee
agreed to take oral evidence from a cross-section of those who had responded.
The following gave oral evidence to the Committee: Scottish Solicitors Discipline
Tribunal, Crown Office, Scottish Executive Justice Department, Scottish Legal
Services Ombudsman, Faculty of Advocates, Marsh UK, Scottish Consumer Council,
Scotland Against Crooked Lawyers, Professor Alan Paterson of the University of
Strathclyde Law School and Margaret Ross, Deputy Head of Aberdeen University Law
School. Key issues Regulatory framework:
regulation, self-regulation and joint regulation 198. One of the
key issues considered by the Committee in the inquiry is whether the present regulatory
framework for complaint handling is appropriate. 199. There are various
mechanisms for regulation in the public interest. These include direct regulation
by government through a government department, or in a more arms-length way through
a statutory body or agency. At the other end of the spectrum is self-regulation,
where the rules governing behaviour are developed, administered and enforced by
those whose behaviour is being governed. For the professions, self-regulation
has traditionally been seen as the appropriate mechanism of regulation, considered
by some to be the hallmark of a profession. Self-regulation, even professional
self-regulation, can take a number of forms. In the case of the legal profession,
this form consists of the professional body acting within a statutory framework.
In other words, legal professional bodies derive their regulatory powers from
the state. 200. The legal profession in Scotland, as elsewhere, is subject
to a number of regulatory mechanisms. For example, the private law of contract
and negligence and the criminal law of theft, deception and fraud are relevant
to legal professionals. In addition, the courts and the Scottish Solicitors Discipline
Tribunal exercise powers over solicitors. Legal professionals have to conform
to rules about indemnity insurance, and regulations for deciding disputes about
fees. In addition, and more relevant in terms of this inquiry, since 1991, there
has been an additional regulatory mechanism. This is the Scottish Legal Services
Ombudsman (the Ombudsman), a statutory body, established to oversee the complaint
handling mechanisms of the legal profession. This system, sometimes referred to
as "joint regulation" or "co-regulation" (see Professor Paterson's
evidence at col 3124), provides independent supervision of the self-regulatory
complaints processes operated by the professional bodies. 201. Both the
written submissions and oral evidence to the inquiry presented a very clear division
between those who argued for an independent system, and those who wished to retain
self-regulation in its present form. Those arguing for the latter stressed the
importance of the independence of the legal profession. Too much interference
by government could jeopardise the ability of the profession to perform its work
(see Faculty of Advocates evidence, para 12). On the other hand, those arguing
for the former felt that the complaints process needed to be independent of the
professions, in order to be credible for consumers (see Scottish Consumer Council
evidence, The Limits of Self-Regulation in the Legal Profession, p7). 202.
Some witnesses saw much merit in self-regulation (see evidence from Margaret Ross,
para 3.1), but considered its effectiveness depended upon consumer confidence
in it (see Ombudsman's evidence, col 2541). Without this confidence, it is no
longer effective. Despite the problems of self-regulation, governments generally
seem to require trades and professions to take responsibility for standards in
addition to their representative functions. However, the Ombudsman felt that the
current legislative framework did not meet the expectations of consumers (col
3020). While accepting the need for self-regulation, arguments were made for more
independent oversight, more lay involvement, and more powers for an independent
body to deal with complaints. Powers of the Scottish Legal Services
Ombudsman 203. In the light of the above, the Committee has considered
whether the powers of the Ombudsman are adequate, and whether they need to be
augmented in some way. 204. At present the Ombudsman can only examine the
way the professional bodies have handled a complaint, or the refusal of those
bodies to handle complaints. She cannot investigate the merits of the original
complaint, nor can she compel the professional bodies to conform to her recommendations.
She has no power to investigate the professional bodies' systems in the absence
of complaints (see evidence from the Ombudsman, para 1). 205. There are
a number of ways in which the powers of the Ombudsman may be augmented. She could
be given the power to examine the substance of the original complaint. The Legal
Services Ombudsman for England and Wales has discretion to examine the original
complaint, but only uses this power in exceptional circumstances. The Legal Services
Ombudsman for England and Wales also has the power to enforce her recommendations.
206. One of the mechanisms which might be useful for the Ombudsman, and
which was mentioned a number of times in the evidence was the power of audit of
the professional bodies' files. Both the Lay Observer in Northern Ireland and
the Independent Adjudicator for the Law Society in the Irish Republic have this
power. The Lay Observer gave written evidence to the Committee about this power,
which he considers very useful. He has access to all of the complaint files held
by the Society irrespective of whether a complainant has written to him or not.
He currently examines approximately 30% of the files (Lay Observer, written evidence).
If the function of the Ombudsman is oversight of the professional bodies' complaints
mechanisms, this power may enable the Ombudsman to do this more effectively. At
present, she only has a partial picture of how the system is operating, because
it is dependent on an individual complaint. In New South Wales, the Ombudsman
can attach directions to a file saying what he would like to be done in relation
to a particular case, or whether he would like a specialist report (Professor
Paterson, col 3128). 207. It has also been suggested that there could be
a single-gateway model, with the Ombudsman as the sole gateway for complaints.
The Ombudsman would receive all complaints and make decisions about what is and
what is not a complaint (Professor Paterson, col 3128). This could address some
of the issues relating to the definition of a complaint. Margaret Ross was not
in favour of such a model, arguing that it would involve unnecessary duplication
of work (the Ombudsman having to carry out initial work on evaluating the complaint
which would be repeated by the relevant professional body if the complaint was
passed on) and might devalue the role of the Ombudsman (col 3140). Faculty
of Advocates 208. The Faculty has recently agreed to revised Disciplinary
Rules. Under the previous system, complaints about the behaviour of advocates
were made to the Dean of the Faculty, although the Dean could also act without
receiving a complaint. The Dean could deal with any complaints personally - either
with or without asking an investigatory committee to provide a report on the matter.
The Dean could also remit complaints to a Disciplinary Tribunal (chaired by a
retired judge). This tribunal has the power to impose greater penalties than the
Dean, although any penalty imposed was still subject to the approval of the Dean.
209. The Dean told the Committee that there will be some changes to the
complaints system following the review. These changes are outlined in the revised
Disciplinary Rules. For example, the Dean currently decides at the early stage
of a complaint whether the complaint should be dismissed. Under the new rules,
that decision could only be taken by a complaints committee, which would include
two members of the Faculty and at least one lay representative. If further investigation
were required, the complaints committee - formerly the Dean - would remit the
matter to an investigating committee composed of members of the Faculty to investigate
and report. 210. Some issues about the Faculty's complaints system have
been raised during evidence to the Committee. For example, it seems to be largely
concerned with conduct matters, rather than service matters. There is also a difficulty
for complainants in obtaining compensation. The Ombudsman told the Committee that
the Faculty's handling of complaints allows no consumer redress and is based entirely
on an internal disciplinary code (col 3034). If the client is in pursuit of compensation,
this must be pursued by a negligence action through the courts. The issue of transparency
was also raised. The Scottish Legal Aid Board (written evidence, para 29) and
the Ombudsman (col 2540) suggested that the Faculty should prepare an information
sheet to be sent to all complainers providing a brief outline of the way the Faculty
deals with complaints as such written information does not currently exist. Law
Society of Scotland 211. Many of the submissions made to the Committee
were very critical of the Law Society of Scotland's complaints procedures. The
Scottish Consumer Council (SCC) said that there is lack of public confidence due
to the belief that the Society could not represent both its members and its clients
fairly (written evidence, para 12). The Ombudsman commented that there was tension
and mismatched expectations between consumer redress and professional discipline
(written evidence, para 4). The Ombudsman also highlighted the importance of consumer
confidence in a complaints system, that complaints were not seen as an opportunity
to learn and improve services by the Society (para 31), and that complainants
were confused by various aspects of the current system such as the definition
of complaints used by the Society (para 27) and the legalistic and wordy paper
systems used (para 56). 212. Some witnesses referred to the lack of redress
for the complainer if the complaint is about an individual solicitor's conduct.
Many individuals also had concerns regarding the lack of time limits in the current
system which has led to some complainers waiting over a year for their complaint
to be processed. The Ombudsman pointed out that any changes made by the Society
to the complaints system have tended to be due to a result of pressure from the
Ombudsman and others (para 35). 213. One of the main problems is that statute
constrains what the Society can do. One example is the inability to have lay input
at the final stage of the complaints process because the Society Council cannot
delegate this function. The Law Society of Scotland told the Committee that it
could improve turnaround times if it had such delegated powers (col 2607). It
is promoting a draft Bill to address the difficulties that the absence of delegated
powers presents (col 2947). Conciliation 214. When
it receives a complaint, the Law Society will seek to have the matter resolved
in the first instance between the firm and the dissatisfied client. This process
is referred to as conciliation. Research recently carried out for the SCC found
that many complainers did not find conciliation helpful (Scottish Consumer Council,
The Limits of Self-Regulation in the Legal Profession, p2). Other respondents
were of the opinion that conciliation is a very successful part of the process
and suggested extending the conciliation process. 215. The conciliation
process could be strengthened by setting up a "client care rule" which
would compel every firm of solicitors to adopt an internal complaints procedure
in order to try to resolve disputes before they come before any outside body.
Margaret Ross suggested setting up a model of local mediation facilitated by a
local solicitor who has not been involved in the case (col 3135). The SCC recommended
that a practice rule that requires firms to have a complaints procedure, with
a delegated person to deal with complaints, should be "the fundamental building
block of a new regime" (col 3076). Redress 216.
Some witnesses identified the problem that the disciplinary procedures do not
result in compensation for complainants. The Ombudsman told the Committee that
there is no facility to award compensation if the complaint is about an individual
solicitor's conduct whereas a complaint classified as inadequate professional
service would, if upheld, enable the Law Society to order compensation (para 28).
217. The Solicitors (Scotland) Act 1980 sets at £1,000 the maximum
level of compensation which the Society or the Scottish Solicitors' Discipline
Tribunal may order a solicitor to pay a client in relation to inadequate professional
services. The maximum award of £1,000 has not been increased since 1990.
The Scottish Executive told the Committee that Scottish Ministers are content
in principle to increase these levels of compensation. As the figures were prescribed
on the face of the statute however, primary legislation will be necessary. The
Scottish Executive said that it is necessary to await a suitable legislative opportunity
for that purpose (para 23). Complaints: conduct, service and negligence 218.
The issue of an appropriate definition for complaints, and problems with deciding
whether a complaint is about conduct or service was raised in evidence to the
inquiry. There is the additional issue of the overlap between negligence and service
complaints. 219. Section 33 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1990 states that where a person makes a complaint to a professional
organisation that a solicitor has been guilty of professional misconduct or provided
inadequate professional services (IPS), the organisation shall investigate the
matter. It is therefore for the Society to decide whether a complaint falls within
either of these definitions. 220. It was suggested in evidence that there
is confusion amongst consumers about the division of complaints between IPS complaints
and conduct complaints. Professor Paterson was of the view that the Law Society
tests for both unsatisfactory conduct and IPS require amplification for clarity
and consistency. He told the Committee that guidance should be developed to say
what levels of compensation are appropriate for different kinds of cases, in order
to achieve consistency (written evidence, para 6). 221. The Society cannot
treat "poor quality of advice" matters as complaints as these have to
be pursued in the courts as negligence. Some respondents were of the view that
the Society should be empowered to treat such cases as complaints. 222.
It has been recognised that a person alleging negligence on the part of a solicitor
may face difficulties in finding another solicitor willing to act against a fellow
professional. The Society may, where it is approached by such a person, use what
is called a Troubleshooter scheme. This involves referring the complainer to a
senior solicitor with relevant experience who will assess whether or not the complainer
has a good claim. The Committee received some evidence, particularly from individuals,
that the Troubleshooter scheme is not effective. The Law Society of Scotland told
the Committee that the difficulty may be in finding a solicitor who would be prepared
to take on a case if there was no merit in the case (col 2604-5). Lay
involvement 223. The importance of some level of lay involvement
for an effective complaints system has been acknowledged by some witnesses to
ensure that the profession does not proceed with a bias towards its own. 224.
The level of lay membership and input into the Society's complaints system has
been described by the Ombudsman as "patchy" (para 29). Some witnesses
claimed that there is an imbalance of power in the complaints process, as a solicitor
can lobby a council member to argue his or her case before the council, but a
complainant is unable to do so. There are lay people involved in early stages
of the complaints process, e.g. the Reporter for the complaint may be either a
solicitor or a lay person, and there are lay people on the Law Society Council.
225. The Society's Council sets the Code of Conduct and also makes the
final decision on all fully investigated complaints about the service provided
by a firm of solicitors. Professor Paterson said that nobody is instructed to
appear on behalf of the complainant and that such a situation is "unfair"
(col 3124). He suggests removing the Council from the process and creating a specialist
disciplinary Committee in the Society or the Faculty with a lay person on that
Committee. This was done in Ontario, which had a similar model to that of the
Society's Council (cols 3125-6). 226. The Faculty of Advocates plans to
increase lay involvement but Faculty members will still set the Code of Conduct
(see paragraphs 22-24 of this paper). 227. Professor Paterson pointed out
that neither the client nor the wider public have any input into the content of
the standards set by the Society. He indicated that in New South Wales, the Ombudsman
could scrutinise changes to rules made by professional bodies (para 7). Options
available 228. There are a number of options for reform available,
which fall broadly into two camps: · a completely independent
system · joint regulation with increased independence Completely
independent system 229. For some, the only way to restore consumer
confidence is to have a totally independent body dealing with complaints against
lawyers. The SCC suggested that a completely new independent body would have the
advantage of providing a fresh start (SCC, supplementary briefing paper, p3).
230. Little detail was provided in the evidence about how such a system
would operate, and it would presumably need some expert input. One model proposed
by commentators in England and Wales is that of the medical profession, where
the representative and regulatory functions are separate. However, medical practitioners
are still involved in regulation, and in dealing with complaints. 231. Evidence
from Professor Paterson (col 3127), Margaret Ross (col 3134) and the Ombudsman
(para 60) pointed out the dangers of divorcing complaint handling from the other
functions of the professional bodies. The Ombudsman argued that it was difficult
to see how the legal professions would learn from complaints if complaint handling
was completely removed from them (para 60). Discussion point 1:
The Committee is not in favour of the option of a completely independent system
and believes that it would be more effective to maintain the present system of
joint regulation with increased independence. Do you agree? Joint
regulation with increased independence 232. The Committee believes
that the present system should be reformed, in order to make it more acceptable
to consumers, and more regarding of the public interest. The options for doing
this are as follows, but it should be noted that these are not mutually exclusive,
and they could work in combination. (a) Single gateway In
this system, there could be an independent body which would receive all complaints
about the legal profession (both the Faculty of Advocates and the Law Society
of Scotland). That body would then refer them to the professional body for settlement,
with the option of a referral back if the complainant was not satisfied with the
handling of the complaint. This function, principally of a "clearing house",
could be performed by the Ombudsman. Alternatively, the professional bodies
could continue to deal with complaints in the first instance, with the oversight
of the Ombudsman. Discussion point 2: The Committee is aware of
the practical difficulties which could be associated with the creation of a single
gateway for all complaints. Do you think that a single gateway should be created?
If so, how do you think that it would operate in practice? (b)
Enhanced powers for the Scottish Legal Services Ombudsman The Ombudsman
could be given powers to: · Investigate the substance of the original
decision made by the professional body; · Enforce recommendations; ·
Conduct general audits; · Prescribe timescales. Discussion
point 3: The Committee recommends enhancing the powers of the Scottish Legal Services
Ombudsman as outlined above (both in relation to the Faculty of Advocates and
the Law Society of Scotland). Do you agree? (c) More flexibility
in complaint handling · The conciliation
process could be strengthened; Discussion point 4: Whilst the Committee
favours strengthening the conciliation process, requiring firms to have a complaints
procedure, with a delegated person to deal with complaints, it also recognises
that such a procedure could be problematic for small firms and sole practitioners.
The Committee seeks views on how the conciliation process could be strengthened
in practice. · ; The professional bodies could be encouraged
to investigate complaints which involved negligence, where the amount was small,
and the matter was not complex Discussion point 5: The Committee
is inviting views on whether the professional bodies should be encouraged to investigate
small negligence claims within the complaints procedure, rather than rejecting
these and referring them to a solicitor. · There could be
provision for redress where the complaint concerned conduct issues; Discussion
point 6: In your view, should compensation be offered for a complaint about an
individual solicitor's conduct? If so, under which circumstances? ·
The maximum compensation levels which the Society or the Scottish Solicitors'
Discipline Tribunal may order a solicitor to pay a client could be raised from
£1,000, and a mechanism introduced for regular uprating; · Discussion
point 7: The Committee favours increasing the maximum level of compensation which
a solicitor can be ordered to pay a client in relation to inadequate professional
services with a provision for regular increases in the maximum compensation. Do
you agree? If so, what should the maximum level of compensation be? ·
The definitions of a complaint could be amplified and clarified; Discussion
point 8: Do you think that the definitions of a complaint could be amplified and
clarified? If so, how could this be achieved? · The powers
of the Law Society Council could be delegated to Society Committees to allow for
lay involvement in the decision making process; Discussion point
9: The Committee favours the introduction of delegated powers to allow final decisions
about complaints to be made by Committees of the Law Society rather than the Council.
Do you agree? · Lay involvement in the complaints process
for the Law Society of Scotland and the Faculty of Advocates could be increased; Discussion
point 10: Are you of the view that lay involvement in the complaints process for
the Law Society of Scotland and the Faculty of Advocates should be increased?
If so, how could this be achieved? Funding 233.
Under the present system, the Law Society and the Faculty of Advocates fund the
complaints systems, and the government funds the Ombudsman. If the Committee were
to recommend increasing the powers of the Ombudsman, it would wish to consider
how additional resources would be made available for this. 234. The SCC
suggested a general levy on all firms and a "user pays" element, which
means that if a firm has a complaint against it, it has to pay (col 3072). Professor
Paterson also suggested that if the role of the Ombudsman were to be expanded,
there would be an argument for a levy on members of the profession to pay for
it (col 3131). Discussion point 11: In your view, how should any
recommended changes to the system be funded? Should these changes be funded by: (a)
the Government; (b) the professional bodies; or (c)
both the Government and the professional bodies. Appendix
A: Summary of Discussion Points Discussion point 1: The
Committee is not in favour of the option of a completely independent system and
believes that it would be more effective to maintain the present system of joint
regulation with increased independence. Do you agree? Discussion
point 2: The Committee is aware of the practical difficulties which could be associated
with the creation of a single gateway for all complaints. Do you think that a
single gateway should be created? If so, how do you think that it would operate
in practice? Discussion point 3: The Committee recommends
enhancing the powers of the Scottish Legal Services Ombudsman as outlined in the
paper (both in relation to the Law Society of Scotland and the Faculty of Advocates).
Do you agree? Discussion point 4: Whilst the Committee
favours strengthening the conciliation process, requiring firms to have a complaints
procedure, with a delegated person to deal with complaints, it also recognises
that such a procedure could be problematic for small firms and sole practitioners.
The Committee seeks views on how the conciliation process could be strengthened
in practice. Discussion point 5: The Committee is inviting
views on whether the professional bodies should be encouraged to investigate small
negligence claims within the complaints procedure, rather than rejecting these,
and referring them to a solicitor. Discussion point 6:
In your view, should compensation be offered for a complaint about an individual
solicitor's conduct? If so, under which circumstances? Discussion
point 7: The Committee favours increasing the maximum level of compensation which
a solicitor can be ordered to pay a client in relation to inadequate professional
services with provision for regular increases in the maximum compensation. Do
you agree? If so, what should the maximum level of compensation be? Discussion
point 8: Do you think that the definitions of a complaint could be amplified and
clarified? If so, how could this be achieved? Discussion
point 9: The Committee favours the introduction of delegated powers to allow final
decisions about complaints to be made by Committees of the Law Society rather
than the Council. Do you agree? Discussion point 10: Are
you of the view that lay involvement in the complaints process for the Law Society
of Scotland and the Faculty of Advocates should be increased? If so, how could
this be achieved? Discussion point 11: In your view, how
should any recommended changes to the system be funded? Should these changes be
funded by: (a) the Government; (b)
the professional bodies; or (c) both the Government and
the professional bodies. ANNEX B: JUSTICE
1 COMMITTEE STAGE 1 REPORT TO LOCAL GOVERNMENT COMMITTEE ON THE PUBLIC APPOINTMENTS
AND PUBLIC BODIES ETC. (SCOTLAND) BILL The Committee reports to
the Local Government Committee as follows- The Scottish Conveyancing
and Executry Services Board 235. The Justice 1 Committee has been named
as a secondary Committee on the Public Appointments and Public Bodies etc. (Scotland)
Bill. The objectives of the Bill are to establish a Commissioner for Public Appointments
in Scotland; to abolish 6 non-departmental public bodies (including the Scottish
Conveyancing and Executry Services Board (SCESB)); to grant limited notarial powers
to conveyancing and executry practitioners and to create a new body (the National
Survey of Archaeology and Buildings of Scotland). This report focuses on the proposals
relating to SCESB. 236. The Committee has gathered evidence on SCESB as
part of its ongoing inquiry into the Regulation of the Legal Profession. It took
oral evidence from SCESB on 5 December 2001. In addition, the Committee has examined
evidence received in response to the call for evidence at Stage 1 of the Bill.
The evidence is attached to this report at annexe A. 237. SCESB was set
up as a non-departmental public body by the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1990 to create new professions of qualified conveyancer and executry
practitioner and to register, oversee and regulate these new professions.191
SCESB's role is also to encourage registration of qualified conveyancers and executry
practitioners in direct competition to solicitors in the fields of conveyancing
and executry services.192 Size
of membership 238. According to the Executive's policy memorandum, the
decision to abolish the SCESB was reached because "it has had very limited
success".193 One of the main arguments
put in favour of the abolition of SCESB is the low number of practitioners registered
and practising independently. Of the 11 practitioners registered with SCESB at
the time of the review of public bodies in Scotland in June 2001, only 2 were
practising independently of solicitors' firms194
and SCESB has only received 2 complaints since its inauguration in 1997.195
239. The Executive told the Committee that it is disappointed that the
policy behind the setting up of SCESB has not succeeded more, as it has in England
and Wales, where there are about 700 licensed conveyancers.196
It pointed out that SCESB is "not optimistic about the future uptake of registration"
and that estimates for registrations over the next five years indicate that, in
five years' time, there will only be 20 registered practitioners compared with
13 at present.197 The Scottish Consumer
Council is also disappointed that, after ten years in existence, including four
years of active business, so few practitioners have been registered by the SCESB.198 240.
SCESB's view is that its proposed abolition is not in the public interest and
that it should be allowed more time and greater flexibility to fulfil the task
that it was set by Parliament.199 In recent
correspondence it pointed out that its membership has increased by 83% in the
last 2 years and that at present 22 people have registered.200 241.
The University of Abertay is also of the view that more time is required to increase
the number of registered practitioners. It told the Committee that the legislation
requires practitioners to be educated to degree level and serve a training period
of one year with a solicitor or independent qualified conveyancer before being
able to register with SCESB. In addition, some graduates have found employment
with the trust and executry departments of main clearing banks but, because the
legislation does not recognise the banks as suitable trainers, such graduates
are unable to register with SCESB. It argues that the lead time for Universities
to devise courses for this new profession, together with the need to market these
courses, means it would take a number of years for any practitioners to register.201
It concludes that the Executive's review of SCESB was based on unrealistic expectation
of the numbers who would take advantage of recognition by SCESB in the early years.202
Similarly, SCESB told the Committee that practitioners are gradually coming through
the universities and that it needs more time.203 242.
There appears to be a general lack of awareness of SCESB's existence. SCESB explained
that this is partly because it is not allowed to advertise its existence in any
promotional way, "this is at the very nub of the problem. How to provide
those to service a market if you are precluded from creating the very market you
are appointed to serve".204 243.
The Committee recognises that, given more time and resources to promote its services,
SCESB may succeed in increasing the number of people registered as independent
qualified conveyancers and executry practitioners. However, the Committee does
not believe that the current volume of registered practitioners justifies SCESB's
continued existence. Competition with solicitors 244. SCESB
considers its role of encouraging registration of independent qualified conveyancers
and executry practitioners in direct competition to solicitors in the fields of
conveyancing and executry services to be an important one.205
It argues that it should be allowed to build on the development of competition
for solicitors, "the essence of our legislation is to provide competition
for the solicitor branch of the legal profession. It might be that the price is
worth paying, at least to some extent, in order to provide that competition."206
The Board claims that it is "ironic" that the Scottish Parliament should
be asked to approve a Bill that will "stifle competition and restore a monopoly
in the fields of conveyancing and executry".207 Costs 245.
The Executive believes that it is unlikely that income from registration fees
payable by practitioners, and their contribution to insurance premiums, will fully
fund the cost of the Board in the future.208
However, SCESB questions whether the savings made by abolishing it would be significant,
"if our function was transferred to the Law Society, the saving would come
down to £38,000 per year. That is not very much on Scottish Executive terms".209
Similarly, the University of Abertay believes that the abolition of SCESB will
achieve "little or no saving to the public purse". It argues that the
cost of regulation should not be borne by practising solicitors but by SCESB practitioners
and the deficit made up by the Executive by way of grant in aid in the same way
as at present.210 246. The Executive
told the Committee that the expense to the taxpayer of running SCESB is about
£130,000.211 Given the costs involved,
the Scottish Consumer Council does not believe that the continued existence of
the Board is justifiable in financial terms for the foreseeable future.212 247.
The Committee is not convinced that subsidising SCESB represents good use of taxpayers'
money. Proposal that no new independent qualified conveyancers should
be registered 248. Scottish Ministers have agreed that both the professions
of executry practitioner and qualified conveyancer should be retained, but with
the effect that from the date of transfer of responsibility no new independent
qualified conveyancers should be registered. Ministers have also agreed that independent
qualified conveyancers should be provided with limited notarial powers with direct
relevance to their conveyancing duties. This is intended to put them on a level
playing field with solicitors.213 249.
One independent qualified conveyancer claimed that the proposal that no new independent
qualified conveyancers should be registered will "stifle the business in
respect of expansion as it will be impossible to take on any further partners
or replace any that leave".214 She
also argued that if one partner leaves the business, it will not be possible to
sell the respective share of the business and believes that this may be in contravention
of Protocol 1 of the European Convention on Human Rights which protects property
rights from state interference.215 This
raises issues of the need for compensation. 250. In response to these concerns,
the Minister confirmed that the Executive has "carefully considered"
whether the planned prohibition on future registration as an independent qualified
conveyancer set out in the Bill might infringe the property rights of existing
independent qualified conveyancers, but has concluded that the relevant provisions
of the Bill do comply with ECHR and that there is therefore no need for a power
to compensate to be included in the Bill.216 Role
of the Law Society of Scotland 251. The Executive proposes to transfer
regulatory responsibility for independent qualified conveyancers and executry
practitioners registered by SCESB to the Law Society of Scotland.217 252.
SCESB believes that if the Law Society of Scotland takes over its complaints process
"problems will arise". It stresses that SCESB is independent of the
people whom it regulates and is concerned that complaints against its members
would have to go before a committee of the Law Society (although such committees
have lay representation) and ultimately before the Council of the Law Society
which is elected by solicitors.218 The
Committee notes that a Bill has been introduced by David McCletchie MSP (the Council
of the Law Society Bill) which provides for the Council to delegate powers to
committees of the Law Society. This could mean that final decisions regarding
complaints will be made by committees, with lay membership, rather than the Council.
253. The Scottish Consumer Council does not believe that the Law
Society of Scotland is the appropriate body to perform the role of regulating
practitioners, and believes that the Office of Fair Trading (OFT) would be a more
suitable body to take over this regulatory function.219
It told the Committee that SCESB was created to encourage competition against
solicitors and finds it difficult to accept that it should become part of the
solicitors' regulatory body. However, it does not feel strongly on the matter
and "would not die in a ditch" about the OFT being a more appropriate
body to regulate SCESB practitioners than the Law Society of Scotland.220 254.
The Committee believes that it makes sense to transfer the regulatory function
from SCESB to the Law Society of Scotland given that the Society already performs
a regulatory function. Maintaining current regulations 255.
Some independent qualified conveyancers are concerned about whether the current
regulations overseen by SCESB will remain intact once the regulatory function
is transferred to the Law Society of Scotland. One independent qualified conveyancer
claimed that "there are many rules which differ between Law Society rules
and SCESB rules, some of which form the sole basis on which my business is founded.
Should these be amended it will become detrimental to both current introduced
business and future growth".221 It
has been suggested that independent qualified conveyancers should be consulted
prior to any decisions being made that could affect their profession.222 256.
The Minister explained that the Bill provides for existing rules and regulations
in relation to conveyancing practitioners to continue in force as if they were
rules made by the Council of the Law Society of Scotland. The Bill also proposes
powers for the Council to make rules for regulating the conduct and practice of
conveyancing practitioners. The Minister emphasised that the Bill provides that
any new rules or amendments to existing rules proposed by the Council will require
the approval of the Lord President and Scottish Ministers after consultation with
the Director General of Fair Trading. Section 40 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1990 provides for the Director General of Fair Trading
to consider whether proposed rules will or are likely to restrict, distort or
prevent competition to any significant extent.223 257.
The Committee welcomes the safeguard provided by the role of the Director General
of Fair Trading considering any proposed rules. However, the Committee recommends
that existing practitioners should also be consulted prior to any change in the
rules or introduction of new rules. Complaints procedure 258.
The complaints process managed by SCESB has been praised for a number of reasons.
In her Annual Report 2000-01, the Scottish Legal Services Ombudsman said that
the Board's complaint handling procedures have "a modern feel" and include
"a good level of involvement by people who are not lawyers".224
Professor Alan Paterson also praised SCESB for setting strict timetables for dealing
with complaints and claimed that its procedures seem to be a "good model".225
However, SCESB has acknowledged that these timescales may be difficult to meet
if the volume of complaints increases, "my Board is conscious that, while
it is pleased with operation of its system, to apply it in dealing with a large
number of professionals - even a relatively small increase in numbers - would
be difficult - because of the time limits involved".226 259.
The Committee believes that there is much to commend the complaints procedure
operated by SCESB. The Committee intends to report separately on its Regulation
of the Legal Profession inquiry which will deal with matters such as timescales
followed by the Law Society of Scotland and the involvement of lay membership
in the complaints procedure. However, the Committee supports the time
limits set by SCESB in dealing with complaints and recommends that the Law Society
of Scotland should seek to adhere to such time limits when dealing with complaints
against independent qualified conveyancers and executry practitioners.
Conclusion 260. The Committee does not believe that the continued
existence of SCESB is justified given the small number of practitioners registered
with it. Therefore, the Committee supports the abolition of SCESB subject to the
recommendations set out above. ANNEX C: EXTRACT
FROM THE MINUTES JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 7th Meeting, 2001 (Session
1) Wednesday 13 March 2001 Present:
|
Phil Gallie | Gordon Jackson (Deputy
Convener) | | Maureen Macmillan |
Paul Martin | | Michael Matheson |
Alasdair Morgan (Convener) | Apologies were received
from Euan Robson. The meeting opened at 9.46 am. Item in
Private: The Committee agreed to take item 5 in private. Work
Programme (in private): The Committee considered its forward work programme.
The Committee agreed to undertake pre-legislative scrutiny on the Freedom of Information
Bill, and to proceed with an inquiry into self-regulation of the legal profession
for which it agreed to seek to appoint an adviser. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 10th
Meeting, 2001 (Session 1) Wednesday 25 April
2001 Present:
| Phil Gallie |
Gordon Jackson (Deputy Convener) | |
Maureen Macmillan | Paul Martin |
| Michael Matheson |
Alasdair Morgan (Convener) | |
Jamie Stone | | The
meeting opened at 9.22 am. Regulation of the Legal Profession Inquiry:
The Committee agreed a specification for the post of adviser. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 12th
Meeting, 2001 (Session 1) Wednesday 2 May
2001 Present:
| Phil Gallie |
Gordon Jackson (Deputy Convener) | |
Maureen Macmillan | Paul Martin |
| Michael Matheson |
Alasdair Morgan (Convener) | |
Jamie Stone | | Also
present: Fergus Ewing The meeting opened at 9.31 am. Item
in private: The Committee agreed to take item 5 in private. Regulation
of the Legal Profession (in private): The Committee considered candidates
for the post of adviser on its inquiry into regulation of the legal profession.
The Committee agreed a shortlist for the post. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 17th
Meeting, 2001 (Session 1) Tuesday 22 May
2001 Present:
| Gordon Jackson (Deputy Convener) |
Maureen Macmillan | | Alasdair
Morgan (Convener) | Nora Radcliffe |
Apologies were received from Phil Gallie, Paul Martin and Michael Matheson. The
meeting opened at 10.06 am. Item in private: The Committee
agreed to take item 3 in private. Petition: The Committee
considered the following petition: Regulation of the legal
profession (in private): The Committee considered a shortlist of advisers
and agreed on the selection of an adviser. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 21st
Meeting, 2001 (Session 1) Tuesday 5 June
2001 Present:
| Maureen Macmillan |
Michael Matheson | | Alasdair
Morgan (Convener) | Nora Radcliffe |
Apologies were received from Phil Gallie, Gordon Jackson (Deputy Convener)
and Paul Martin. The meeting opened at 1.37 pm. Regulation
of the Legal Profession Inquiry: The Committee took an initial briefing
on the role and operation of the Scottish Legal Services Ombudsman from Linda
Costelloe Baker, the Scottish Legal Services Ombudsman, and Anne Millan, Complaints
Investigator, Scottish Legal Services Ombudsman. Maureen Macmillan declared an
interest. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 22nd Meeting, 2001 (Session
1) Tuesday 19 June 2001 Present:
|
Phil Gallie | Gordon Jackson (Deputy
Convener) | | Maureen Macmillan |
Paul Martin | | Michael Matheson |
Alasdair Morgan (Convener) | |
Nora Radcliffe | | The
meeting opened at 1.41 pm. Regulation of the Legal Profession Inquiry:
The Committee took an initial briefing on the Law Society of Scotland
from Martin McAllister, President, David Preston, Vice President, Anne Keenan,
Deputy Director and Michael Clancy, Director, the Law Society of Scotland. Gordon
Jackson and Maureen Macmillan declared an interest. Regulation of
the Legal Profession Inquiry: The Committee considered the remit for
the inquiry. The remit was agreed to with a few alterations to the terms of reference
and the list of witnesses. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 25th Meeting, 2001 (Session
1) Tuesday 25 September 2001 Present:
|
Lord James Douglas-Hamilton | Christine
Grahame (Convener) | | Gordon
Jackson (Deputy Convener) | Maureen Macmillan |
| Paul Martin |
Michael Matheson | Apologies were received from Donald
Gorrie. The meeting opened at 1.30 pm. Items in Private:
The Committee agreed to take items 6, 7 and 8 in private. Regulation
of the Legal Profession Inquiry (in private): The Committee considered
the written evidence received for the inquiry, and agreed to finalise the detailed
terms of reference and who to call for oral evidence at its next individual Justice
1 Committee meeting. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 27th Meeting, 2001 (Session
1) Tuesday 23 October 2001 Present:
|
Lord James Douglas-Hamilton | Donald
Gorrie | | Christine Grahame
(Convener) | Gordon Jackson (Deputy Convener) |
| Maureen Macmillan |
Paul Martin | | Michael Matheson |
| Also present: Stewart Stevenson The meeting opened
at 2.19 pm. Item in Private: The Committee agreed to take
item 7 in private. Petition: The Committee considered petition
PE361 by Scotland Against Crooked Lawyers. The Committee agreed to take the issues
raised by the petition into account during its inquiry into the Regulation of
the Legal Profession. Regulation of the Legal Profession Inquiry
(in private): The Committee considered the remit of the inquiry and the
future timetable for the inquiry. It agreed that a revised remit should be circulated
by email for agreement. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 31st Meeting, 2001 (Session
1) Wednesday 21 November 2001 Present:
|
Lord James Douglas-Hamilton | Donald
Gorrie | | Christine Grahame
(Convener) | Gordon Jackson (Deputy Convener) |
| Paul Martin |
Michael Matheson | Apologies were received from Maureen
Macmillan. The meeting opened at 9.32 am. Petition: The
Committee considered the following petition: JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 33rd
Meeting, 2001 (Session 1) Wednesday 5 December
2001 Present:
| Lord James Douglas-Hamilton |
Donald Gorrie | | Christine
Grahame (Convener) | Gordon Jackson (Deputy
Convener) | | Maureen Macmillan |
Paul Martin | | Michael Matheson |
| The meeting opened at 9.46 am. Items in Private:
The Committee agreed to take items 7 and 8 in private. Regulation
of the Legal Profession Inquiry: The Committee took evidence on the inquiry
from- Martin McAllister, President, Michael Clancy, Director,
Philip Yelland, Director of Client Relations Office, Joseph Platt, Convener, Client
Care Committee, Kay Telfer, Lay Member of Client Relations Committee, The Law
Society of Scotland, and Alistair C Clark, Chairman, Ms Margaret Burns,
member, Mr Duncan White, member and Eric Simmons, Secretary, the Scottish Conveyancing
and Executry Services Board. Lord James Douglas-Hamilton, Gordon
Jackson, Christine Grahame and Maureen Macmillan declared interests in the legal
profession. Work programme (in private): The Committee
agreed to consider its forward work programme at its next meeting. The Committee
agreed to discuss lines of questioning for witnesses for its meeting on 11 December
in private. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 34th Meeting, 2001 (Session
1) Tuesday 11 December 2001 Present:
|
Lord James Douglas-Hamilton | Donald
Gorrie | | Christine Grahame
(Convener) | Maureen Macmillan |
| Michael Matheson |
| Apologies were received from Gordon Jackson (Deputy Convener)
and Paul Martin. The meeting opened at 1.49 pm. Regulation
of the Legal Profession Inquiry (in private): The Committee considered
lines of questioning for witnesses to the inquiry. Regulation of
the Legal Profession Inquiry: The Committee took evidence on the inquiry
from- John Barton, Clerk, Judith Lea, Depute Clerk, Fraser Ritchie,
Chairman, Peter Rockwell, Vice Chairman and John Spencely, Lay member, the Scottish
Solicitors Discipline Tribunal, Dr Alastair Brown, Deputy Head of Policy,
the Crown Office, and Valerie Macniven, Head of Civil Law, Access to Justice
and International Group, David Stewart, Head of Judicial Appointments and Finance
Division (Courts Group) and Mike West, Civil Law Division, the Scottish Executive
Justice Department. Lord James Douglas-Hamilton, Christine Grahame
and Maureen Macmillan declared interests in the legal profession. Items
in Private: The Committee agreed to consider its draft report on the
general principles of the Freedom of Information (Scotland) Bill at Stage 1 in
private at its meeting on 19 December, and agreed to consider lines of questioning
on the regulation of the legal profession inquiry in private at future meetings. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 35th
Meeting, 2001 (Session 1) Wednesday 19 December
2001 Present:
| Lord James Douglas-Hamilton |
Christine Grahame (Convener) | |
Gordon Jackson (Deputy Convener) | Maureen
Macmillan | | Paul Martin |
Michael Matheson | Apologies were received from Donald
Gorrie. The meeting opened at 9.47am. Regulation of the Legal
Profession Inquiry (in private): The Committee considered lines of questioning
for witnesses to the inquiry. Regulation of the Legal Profession
Inquiry: The Committee took evidence on the inquiry from-
Linda Costelloe Baker, Scottish Legal Services Ombudsman and Anne Millan and
Carolyn Pithie, Complaints Investigators, Office of the Scottish Legal Services
Ombudsman, Colin Campbell, Dean of Faculty, Neil Brailsford QC, Treasurer
of Faculty, Eugene Creally, Clerk of Faculty and Shona Haldane, Advocate, Member
of Faculty, Faculty of Advocates, and Alistair Sim, Associate Director,
Marsh UK and Michael Dean, legal adviser to Marsh UK, Maclay Murray and Spens.
Lord James Douglas-Hamilton, Christine Grahame, Gordon Jackson
and Maureen Macmillan declared interests in the legal profession. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 2nd
Meeting, 2002 (Session 1) Tuesday 22 January
2002 Present:
| Lord James Douglas-Hamilton |
Donald Gorrie | | Christine
Grahame (Convener) | Gordon Jackson (Deputy
Convener) | | Maureen Macmillan |
| Apologies were received from Paul Martin and Michael Matheson. The
meeting opened at 1.46pm. Regulation of the Legal Profession Inquiry
(in private): The Committee considered lines of questioning for witnesses
to the inquiry. Items in Private: The Committee agreed
to discuss item 8 in private. Regulation of the Legal Profession
Inquiry: The Committee took evidence on the inquiry from-
Graeme Millar, Chairman, Martyn Evans, Director and Sarah O'Neill, Legal Officer,
Scottish Consumer Council. Convener's report: The
Convener of the Committee reported to the Committee on Committee business. The
Committee agreed to write to Elaine Bailey of Premier Prison Services Ltd regarding
the contract for HM Prison Kilmarnock asking why the contract will not be made
available in its entirety, and to write to the Minister for Justice asking for
a precise timescale as to when the contract will be substantially published. The
Committee agreed to consider the responses to its previous request for clarification
of the discussion at the meeting of 26 January 2001 between Jim Wallace MSP, Henry
McLeish MSP and Alex Salmond MP once the response from Henry McLeish MSP had been
received. The Committee agreed not to seek to commission comparative research
into the regulation of the legal profession. The Committee agreed to write to
Scotland Against Crooked Lawyers who are due to give evidence on the 29 January
2002 advising them of the need to ensure careful use of language to avoid issues
of defamation in giving oral evidence at that meeting. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 3rd
Meeting, 2002 (Session 1) Tuesday 29 January
2002 Present:
| Donald Gorrie |
Christine Grahame (Convener) | |
Gordon Jackson (Deputy Convener) | Maureen
Macmillan | | Paul Martin |
Michael Matheson | Also present: Bill Aitken and Phil
Gallie. Apologies were received from Lord James Douglas-Hamilton. The
meeting opened at 1.47pm. Regulation of the Legal Profession Inquiry
(in private): The Committee considered lines of questioning for witnesses
to the inquiry. Regulation of the Legal Profession Inquiry:
The Committee took evidence on the inquiry from- The
meeting was suspended at 2.58pm and reconvened at 3.01pm. Regulation
of the Legal Profession Inquiry: The Committee took evidence on the inquiry
from- Professor Alan Paterson, Law School, University of Strathclyde
and Margaret Ross, Postgraduate Officer, Deputy
Head of Law School, Aberdeen University. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 4th
Meeting, 2002 (Session 1) Tuesday 5 February
2002 Present:
| Lord James Douglas-Hamilton |
Donald Gorrie | | Christine
Grahame (Convener) | Gordon Jackson (Deputy
Convener) | | Maureen Macmillan |
Paul Martin | | Michael Matheson |
| Also present: Jim Wallace (Minister for Justice). The
meeting opened at 1.51pm. Item in private: The Committee
agreed to consider item 4 in private. Work programme (in private):
The Committee considered its forward work programme. The Committee agreed not
to consider the judiciary as part of its inquiry into the regulation of the legal
profession but agreed that it may return to this issue in the future. The Committee
agreed to hold an inquiry into alternatives to custody following the research
commissioned by the Committee and the Committee's forthcoming civic participation
event. The Committee agreed to consider the Prisons Estates Review and to write
to the Minister for Justice to establish the timescale for the review. The Committee
also agreed that it would like to visit HM Prisons Peterhead, Kilmarnock, Polmont
and Cornton Vale and one other prison to be decided at a later date. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 10th
Meeting, 2002 (Session 1) Tuesday 26 March
2002 Present:
| Lord James Douglas-Hamilton |
Donald Gorrie | | Christine
Grahame (Convener) | Angus MacKay |
| Maureen Macmillan (Deputy convener) |
Paul Martin | | Michael Matheson |
| The meeting opened at 1.49pm. Items in private:
The Committee agreed to discuss items 7 and 8 in private. Regulation
of the legal profession inquiry (in private): The Committee considered
future options for the inquiry. The Committee agreed to consult on various options
for regulating the legal profession with those who had previously submitted evidence
to the inquiry. Lord James Douglas-Hamilton declared an interest in the legal
profession. JUSTICE 1 COMMITTEE EXTRACT
FROM MINUTES 11th Meeting, 2002 (Session
1) Tuesday 16 April 2002 Present:
|
Lord James Douglas-Hamilton | Donald
Gorrie | | Christine Grahame (Convener) |
Maureen Macmillan (Deputy convener) | |
Michael Matheson | | Also
present: Stewart Stevenson. Apologies were received from: Angus MacKay. The
meeting opened at 1.49pm. Items in private: The Committee
agreed to discuss items 2 and 7 in private, and to discuss lines of questioning
for witnesses on the Prison Estates Review in private at future meetings. Regulation
of the legal profession inquiry (in private): The Committee considered
a revised future options paper for the inquiry. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 34th
Meeting, 2002 (Session 1) Tuesday 8 October
2002 Present:
| Wendy Alexander |
Lord James Douglas-Hamilton | |
Donald Gorrie | Christine Grahame (Convener) |
| Maureen Macmillan (Deputy convener) |
Michael Matheson | Apologies were received from Paul
Martin. Also present: Professor Neil Hutton, Committee adviser for the alternatives
to custody inquiry and Professor Mary Seneviratne, Committee adviser for the regulation
of the legal profession inquiry. The meeting opened at 1:35pm. Items
in private: The Committee agreed to discuss items 2, 5, 6, 7 and 8 in
private. The Committee also agreed to discuss its draft reports for its regulation
of the legal profession inquiry, the Protection of Children (Scotland) Bill and
the Title Conditions (Scotland) Bill in private at future meetings. Regulation
of the legal profession inquiry (in private): The Committee considered
a draft report. Lord James Douglas-Hamilton declared an interest. JUSTICE
1 COMMITTEE EXTRACT FROM MINUTES 34th
Meeting, 2002 (Session 1) Tuesday 29 October
2002 Present:
| Wendy Alexander |
Donald Gorrie | | Christine
Grahame (Convener) | Maureen Macmillan
(Deputy convener) | | Paul Martin |
Michael Matheson | Apologies were received from Lord
James Douglas-Hamilton. Also present: Scott Wortley, Committee adviser on
the Title Conditions (Scotland) Bill. The meeting opened
at 1:36 pm. Regulation of the legal profession inquiry (in private):
The Committee considered its draft report.
FOOTNOTES 1
Law Society, oral evidence, col 2947 2 Ombudsman,
oral evidence, cols 3033-4 3 Including recommendations
in paras 30, 35, 38, 41, 45, 49, 51, 68, 72, 84, 100, 104, 112, 128, 134 and 150 4
Scottish Legal Services Ombudsman (SLSO), Annual Report 2000-2001, p 7 5
Justice 1 Committee meeting, 23 October 2001 6
The Public Appointments and Public Bodies etc. (Scotland) Bill contains proposals
for the abolition of the Scottish Conveyancing and Executry Services Board. The
Committee's Stage 1 report to the lead Committee (the Local Government Committee)
on the Bill is reproduced in Annex B. 7 Professor
Paterson, oral evidence, col 3124 8 Scotland Against
Crooked Lawyers, oral evidence, col 3104. 9 Scottish
Consumer Council, The Limits of Self-Regulation in the Legal Profession,
p7 10 Scottish Consumer Council, oral evidence,
col 3075 11 Scottish Executive, oral evidence,
col 3009 12 The Convention Rights, Article 6 13
Tehrani v. UK Central Council for Nursing, Midwifery and Health Visiting
14 Scottish Consumer Council, oral evidence, cols
3066-7 15 Scotland Against Crooked Lawyers, oral
evidence, col 3104 16 Faculty of Advocates, written
evidence 17 Faculty of Advocates, oral evidence,
col 3051 18 Professor Paterson, oral evidence,
col 3127; Margaret Ross, oral evidence, col 3134; Scottish Legal Services Ombudsman,
written evidence 19 Professor Paterson, oral evidence,
col 3127 20 Scottish Legal Services Ombudsman,
oral evidence, col 3026 21 Scottish Consumer Council,
oral evidence, col 3071 22 Margaret Ross, written
evidence 23 Scottish Legal Services Ombudsman,
oral evidence, cols 2541-2 24 Scottish Legal Service
Ombudsman, oral evidence, col 3020 25 Professor
Paterson, oral evidence, col 3128 26 Margaret Ross,
oral evidence, col 3140 27 Faculty of Advocates,
consultation response 28 Law Society, consultation
response 29 Professor Paterson, consultation response,
appendix 1 30 Ombudsman, consultation response,
discussion point 2 31 Law Society, consultation
response, discussion point 2 32 Professor Paterson,
consultation response, discussion point 2 33 SLAB,
consultation response, discussion point 2 34 Ombudsman,
oral evidence, col 3026 35 Professor Paterson,
oral evidence, col 3130 36 Institute of Legal Executives
(ILEX), consultation response, discussion point 2 37
Ombudsman, written evidence 38 Ombudsman, oral
evidence, col 3036 39 Scottish Executive, oral
evidence, col 3008 40 Scotland Against Crooked
Lawyers, oral evidence, col 3111 41 Law Society,
consultation response, discussion point 3 42 Faculty
of Advocates, oral evidence, col 3052 43 Scottish
Executive, written evidence 44 Faculty of Advocates,
oral evidence, col 3053 45 Faculty of Advocates,
written evidence 46 ILEX, consultation response,
discussion point 3 47 Ombudsman, oral evidence,
col 3030 48 Faculty of Advocates, consultation
response, discussion point 3 49 Law Society, consultation
response 50 Professor Paterson, consultation response,
discussion point 3 51 Law Society, consultation
response, discussion point 3 52 Lay Observer in
Northern Ireland, written evidence 53 Lay Observer
in Northern Ireland, consultation response, para 1 54
Ombudsman, consultation response, discussion point 3 55
Law Society, consultation response, discussion point 3 56
Faculty of Advocates, consultation response, discussion point 3 57
Ombudsman, oral evidence, cols 3022-3 58 Professor
Paterson, oral evidence, col 3120 59 Law Society,
oral evidence, col 2607 60 Law Society of England
and Wales, consultation response, discussion point 3 61
OISC, consultation response, discussion point 3 62
Ombudsman, oral evidence, col 3027 63 Ombudsman,
oral evidence, col 3026 64 Scottish Consumer Council,
consultation response, discussion point 3 65 Ombudsman,
written evidence. The costs of the Faculty of Advocates complaints system are
not known. 66 Faculty of Advocates, consultation
response, discussion point 11 67 Law Society, consultation
response, discussion point 11 68 Scottish Consumer
Council, oral evidence, col 3072 69 Professor Paterson,
oral evidence, col 3131 70 Scotland Against Crooked
Lawyers, oral evidence, col 3113 71 Access to Justice
Act 1999 72 Ombudsman, oral evidence, col 3020 73
SCOLAG, consultation response, discussion point 1 74
Ombudsman, oral evidence, col 3020 75 Ombudsman,
written evidence 76 Faculty of Advocates, consultation
response, discussion point 4 (a) 77 Scotland Against
Crooked Lawyers, oral evidence, col 3102 78 Scottish
Consumer Council, oral evidence, col 3073 79 Scottish
Consumer Council, written evidence 80 Law Society,
oral evidence, col 2942 81 Scottish Executive,
oral evidence, column 3003 82 Commission for Racial
Equality, written evidence 83 Ombudsman, written
evidence 84 Law Society, consultation response,
discussion point 8 85 Law Society, written evidence 86
Law Society, written evidence 87 Law Society, written
evidence 88 Professor Paterson, written evidence
89 Ombudsman, oral evidence, col 3022 90
Ombudsman, consultation response 91 WS Society,
consultation response, discussion point 8 92 Law
Society, written evidence 93 Law Society, written
evidence 94 Section 65 of the 1980 Act 95
Law Society, written evidence 96 Ombudsman, oral
evidence, col 3020 97 Ombudsman, oral evidence,
cols 3038-9 98 Law Society of England and Wales,
written evidence 99 Connie Paterson, consultation
response, discussion point 8 100 ILEX, consultation
response, discussion point 8 101 Professor Paterson,
oral evidence, col 3121 102 Ombudsman, consultation
response, discussion point 8 103 Law Society of
England and Wales, consultation response, discussion point 8 104
Law Society of Scotland, consultation response, discussion point 8 105
Professor Paterson, consultation response, discussion point 5 106
Allingham & Co solicitors consultation response, discussion point 5 107
ILEX, consultation response, discussion point 5 108
Ombudsman, consultation response, discussion point 5 109
Scottish Consumer Council, consultation response, discussion point 5 110
Law Society of England and Wales, consultation response, discussion point 5 111
SLAB, consultation response, discussion point 5 112
Professor Paterson, consultation response, discussion point 5 113
Faculty of Advocates, written evidence 114 Solicitors
(Scotland) Act 1980, section 56A(2) 115 Scotland
Against Crooked Lawyers, oral evidence, col 3109 116
Law Society of Scotland, oral evidence, cols 2604-5 117
Faculty of Advocates, written evidence 118 Scottish
Consumer Council, consultation response, discussion point 6 119
Law Society of Scotland, written evidence 120 Ombudsman,
written evidence 121 Scottish Consumer Council,
oral evidence, col 3069 122 Law Society of England
and Wales, consultation response, discussion point 6 123
SCOLAG, consultation response, discussion point 6 124
WS Society, consultation response, discussion point 6 125
Ewan G Kennedy, consultation response, discussion point 6 126
Law Society of Scotland, consultation response, discussion point 6 127
Scottish Executive, written evidence 128 Law Society
of England and Wales, consultation response, discussion point 6 129
Professor Paterson, oral evidence, col 3122 130
Law Society, oral evidence, col 2947 131 Law Society,
oral evidence, cols 2945-6 132 Professor Paterson,
oral evidence, cols 3123-4 133 Law Society, oral
evidence, col 2948 134 Ombudsman, oral evidence,
col 3026 135 Law Society, oral evidence, col 2948 136
Scottish Consumer Council, The Limits of Self-Regulation in the Legal Profession,
p2 137 Scottish Consumer Council, consultation
response, discussion point 4 138 Ombudsman, written
evidence 139 Scottish Consumer Council, oral evidence,
col 3076 140 Scottish Consumer Council, oral evidence,
col 3078 141 SCOLAG, consultation response, discussion
point 2 142 Law Society, consultation response,
discussion point 4 143 WS Society, consultation
response, discussion point 4 144 Professor Paterson,
consultation response 145 SCOLAG, consultation
response, discussion point 4 146 SLAB, consultation
response, discussion point 4 147 Law Society,
oral evidence, col 2942 148 Law Society, oral
evidence, col 2943 149 Ombudsman, oral evidence,
col 3023 150 Ombudsman, written evidence 151
Professor Paterson, oral evidence, col 3121 152
Scottish Consumer Council, Better Business Practice 2001 153
Scottish Law Agents, consultation response, discussion point 10 154
WS Society, discussion point 10 155 Law Society,
consultation response, discussion point 10 156
Ombudsman, consultation response, discussion point 10 157
Ombudsman, consultation response, discussion point 10 158
Scottish Solicitors Discipline Tribunal, oral evidence, cols 2981-2 159
Scottish Solicitors Discipline Tribunal, oral evidence, col 2986 160
1980 Act, schedule 4 161 Scottish Solicitors Discipline
Tribunal, oral evidence, cols 2983-4 162 Law Society,
written evidence 163 Law Society, oral evidence,
col 2946 164 Professor Paterson, oral evidence,
col 3126 165 Law Society, consultation response 166
Scottish Solicitors Discipline Tribunal, oral evidence, col 2978 167
Scottish Solicitors Discipline Tribunal, oral evidence, col 2988-9 168
Scottish Consumer Council, consultation response, discussion point 5 169
Marsh UK, oral evidence, cols 3057-8 170 Marsh
UK, oral evidence, col 3060 171 Marsh UK, oral
evidence, col 3061-2 172 Professor Paterson, oral
evidence, col 3129 173 Scottish Consumer Council,
consultation response, discussion point 3 174
Faculty of Advocates, oral evidence, col 3046 175
Faculty of Advocates, oral evidence, col 3043 176
Faculty of Advocates, oral evidence, col 3043 177
Faculty of Advocates, oral evidence, col 3047 178
Faculty of Advocates, disciplinary rules, para 12 179
Ombudsman, oral evidence, col 3035 180 SCOLAG,
consultation response, discussion point 1 181
Faculty of Advocates, written evidence 182 Faculty
of Advocates, consultation response, discussion point 8 183
Ombudsman, oral evidence, cols 3033-4 184 Faculty
of Advocates, oral evidence, col 3049 185 SLAB,
written evidence 186 Ombudsman, oral evidence,
col 2540 187 Faculty of Advocates, revised disciplinary
rules, paras 17 & 19 188 Margaret Ross, written
evidence 189 Faculty of Advocates, consultation
response, discussion point 10 190 Including recommendations
in paras 30, 35, 38, 41, 45, 49, 51, 68, 72, 84, 100, 104, 112, 128, 134 and 150 191
SCESB, written evidence, p1 192 SCESB, written
evidence, p2 193 Public Appointments and Public
Bodies Etc. (Scotland) Bill, Policy Memorandum, p3, para 7 194
Public Appointments and Public Bodies Etc. (Scotland) Bill, Policy Memorandum,
p3, para 7 195 SCESB, oral evidence to the Justice
1 Committee, 5 December 2001, col 2960 196 Scottish
Executive, oral evidence to the Justice 1 Committee, 11 December 2001, col 3013 197
Scottish Executive, oral evidence to the Justice 1 Committee, 11 December 2001,
col 3014 198 Scottish Consumer Council, written
evidence, para 44 199 SCESB, letter to the Local
Government Committee, p2 200 SCESB, letter to
the Local Government Committee, p2 201 University
of Abertay, written evidence, para 6 202 University
of Abertay, written evidence, para 10 203 SCESB,
oral evidence to the Justice 1 Committee, 5 December 2001, col 2960 204
SCESB, letter to the Local Government Committee, para 4 205
SCESB, written evidence, p2 206 SCESB, oral evidence
to the Justice 1 Committee, 5 December 2001, col 2965 207
SCESB, letter to the Local Government Committee, p2 208
Public Appointments and Public Bodies Etc. (Scotland) Bill, Policy Memorandum,
para 7 209 SCESB, oral evidence to the Justice
1 Committee, 5 December 2001, col 2965 210 University
of Abertay, written evidence 211 Scottish Executive,
oral evidence to the Justice 1 Committee, 11 December 2001, col 3013 212
Scottish Consumer Council, written evidence, para 43 213
Public Appointments and Public Bodies Etc. (Scotland) Bill, Policy Memorandum,
para 11 214 Annaline Webster, written evidence,
para 4 215 Annaline Webster, written evidence,
para 6 216 Response from the Minister to Irene
McGugan, para 217 Public Appointments and Public
Bodies Etc. (Scotland) Bill, Policy Memorandum, para 7 218
SCESB, oral evidence to the Justice 1 Committee, 5 December 2001, col 2966 219
Scottish Consumer Council, written evidence, paras 46 and 48 220
Scottish Consumer Council, oral evidence to the Justice 1 Committee, 22 January
2002, col 3080 221 Annaline Webster, written
evidence, para 3 222 Letter from Irene McGugan
to Minister for Justice, para 3 223 Response
from Minister for Justice to Irene McGugan, para 224
SLSO annual report 2000-01 225 Prof Paterson,
oral evidence to the Justice 1 Committee, 29 January 2002, col 3120 226
SCESB, opening statement
|
