Legal Complaints Reform in Scotland

Legal Complaints Reform in Scotland

There is to be reform of the legal complaints system in Scotland.

This was announced on 22 December 2022 as part of the Scottish Government’s response to the findings of the legal services regulation reform in Scotland consultation analysis report [PDF].

A previous blog post looked at the findings of the Consultation Analysis with regard to Complaints and Redress.

Not Fit for Purpose

The Consultation Analysis states:-

The Roberton Report advised that there was clear agreement in relation to the view of the legal complaints and redress process. It found a strongly held perception in the sector that the current complaints system was not fit for purpose.

Making it Fit for Purpose?

In their response the Scottish Government state:-

The Scottish Legal Complaints Commission (SLCC) paper Reimagine Regulation [PDF] raised concerns that the statute underpinning the legal complaints system is too restrictive and unable to act in a proportionate and risk-based way, adding undue cost and time to the legal complaints process for consumers and legal professionals. The Roberton report agreed with this assessment.

The Roberton report set out that the complaints system should allow the regulator to adopt a risk-based approach to intervene where systemic issues are identified and where there has been a failure to meet standards.

The analysis of the consultation responses supports the view that the legislation which underpins the complaints structure should be more flexible and proportionate. We agree that the Commission and regulators should have more flexibility and the ability to act in a proportionate way in considering discipline and legal complaints.

The Devil of Legal Complaints Reform will be in the Detail

There is no detail contained in the response (that will come in the Bill) but it is assumed that it will follow the SLCC recommendation which is:-

We believe the solution is to plot a route from A to B, based on the experience of the consumers and lawyers (in all their diversity) who have to go through this process. The whole process could be reduced to three core stages:

1. A single investigation – ensuring there are a range of flexible options to filter out vexatious and similar complaints and allowing processes proportionate to different levels (£200 or £20,000).

2. Determination – by the same organisation in relation to lower level issues, or by prosecution at the professional tribunal for conduct which may lead to removal from the profession.

3. Appeal – to ensure accountability and meet the requirements of natural justice there should be a single opportunity to appeal at the conclusion of the process.

Mediation?

It is hoped, as expressed in this blog previously, that a greater emphasis on mediation (perhaps making that compulsory) will also be considered

Single Gateway for Legal Complaints

The Scottish Government go onto state in their response:

We also consider that a single gateway for complaints should continue and that there should be additional oversight of complaints handling by regulators, with the ability to direct regulators on the way in which they deal with complaints about the conduct of legal professionals.

It is not clear where this “additional oversight of complaints handling” will come from. It will be interesting to see the detail of that when the draft Bill is published.

Funding

There is no surprise when the Scottish Government’s response states:-

The current funding model should continue, paid by a levy and in consultation with the legal profession.

Transparency

The final point in the Scottish Government’s response on Legal Complaints Reform is:

In terms of increasing transparency, there should be a requirement for all legal services regulation tribunals to publish judgments in respect of complaints regarding professional misconduct, with the intention of increasing public confidence.

I did not realise that was not already the case.

SLCC Response

Neil Stevenson, Chief Executive of the SLCC, said:

We’ve long called for reform to the regulation and complaints system to make it more efficient and effective and to increase trust and confidence in regulation and legal services.

In our 2016 paper, Reimagine Regulation, we said that the legislation that governs our work creates a slow and cumbersome process that builds in delay and confusion. That is frustrating and dispiriting for complainers who want to move on, and stressful for lawyers who work under the cloud of an unresolved complaint.

We’re pleased the Reimagine Regulation work is noted in the statement, and to see proposals for a more flexible and proportionate approach. We look forward to working with others to make this new approach a reality.

We had hoped to see more fundamental reform to better reflect the legal services sector of today and of the future. We also saw opportunities to drive efficiency by reducing existing duplication of processes, functions and back-office systems across multiple bodies which have not been delivered.

However, we do believe these proposals could help to create a more efficient and proportionate complaints system, one that resolves complaints swiftly and draws learning from them to drive improvement. Proposals to improve transparency and accountability across the regulatory system are also very welcome.

We all have a stake in a regulatory system that regulates in the public interest, promotes public confidence and protects us if something goes wrong. We will work with Parliament to ensure the forthcoming Bill helps to achieve that.

I will look at the detail of that Bill on this blog when we see the first draft.

More Blog Posts on the Scottish Government’s Response

There are five Blog Posts on the Scottish Government’s response:-

Blog Posts on Legal Services Regulation Reform

Prior to the response by the Scottish Government I published eight posts on Legal Services Regulation Reform in Scotland:-

Reactions on Social Media to Legal Complaints Reform in Scotland

On LinkedIn the following comments have been made:-

Neil Alan Stevenson (Experienced Chief Executive, Chair and Non-executive Director):

Thanks again for this Brian. Any increased flexibility should be helpful, often we agree with the profession that some types of complaint could be dealt with more proportionality, but are constrained at the moment. Again, we need more details. However, since this respects existing roles it’s likely to still mean a complaint comes to us, we do eligibility, then service, while the conduct aspects go to an LSS committee for UPC and then SSDT for misconduct, each with different processes, standards of proof, terminology. These are the types of complaint that often take two or three years and across the three bodies costs ten of thousands for sometimes relatively minor issues. Now we need to respect that if that’s the system approved again, but it’s tough explaining that as proportionate and effective to the profession and public.

Me:

Thanks Neil. Hopefully the experience of SLCC and LSS will be able to shape the reform and help simplify / speed up the process involved even if there are still two regulators involved!

Neil Alan Stevenson:

We had mooted ideas like a single investigation, even if you had three different adjudicative bodies still, so will be interesting to see what is covered in the details.

Me:

Sounds like a sensible idea. Hopefully the Scottish Government will take cognisance of the expertise at hand and act upon the suggestions you put forward to them.

David Flint (Commercial Law Consultant at Inksters; Visiting Professor at Creighton University School of Law.):

It’s not proportionate or effective to the profession or the public but it suits the regulators to expand their empire in this way in the certain knowledge that whatever the outcome, they will suffer no personal financial disadvantage. Is it any wonder that nobody (solicitor, public or politician) has any confidence in the system?

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David Flint (Commercial Law Consultant at Inksters; Visiting Professor at Creighton University School of Law.):

It would be great to see a regulatory regime that didn’t start with an unsaid assumption that the solicitor is in the wrong; where solicitors did not end up paying for the mistakes and costs of the SLCC and LSS (irrespective of the facts – if the solicitor wins, the profession pays for the SLCC / LSS costs; if the solicitor loses, the solicitor pays the exorbitant costs of the SLCC and the profession pays the excess) and that there was some professional body which actually stood up for its members. Need to move away from a system where solicitors are forced to pay for the empire building of LSS – nothing to do with regulation and consumer protection and 100% to do with empire building in areas where solicitors have no choice but to pay. No wonder lawyers are looking at ways to provide services other than as solicitors and LSS want to expand their reach into new areas.

Me:

Indeed David. However, unfortunately, I cannot see any of your sensible suggestions happening anytime soon. Had Esther Roberton’s one Regulator concept been adopted it may have moved the Law Society of Scotland more towards one who actually stood up for its members (although a comment on an earlier post in this series suggested that had not happened in England & Wales). It would not though have tackled the other issues you raise unless of course an independent member organisation pursued them all and gained them all for the benefit of its members.

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Brian Rogers FCMI (Regulatory Director, The Access Group (Legal Division)- helping law firms and lawyers meet their regulatory and compliance obligations. Lawtech founder. Veteran.):

The reforms being brought in by the Legal Ombudsman in E&W should make life a lot simpler if implemented properly, my only concern is the thinking of the Legal Services Board that would like to see remedy provided to clients who HAVE NOT complained but who have suffered in the same way as a client who has; how this would work in reality poses a lot of questions, especially if a complaint also indicates negligence as insurers would not be happy for firms to invite claims!

Me:

That appears to be a bizarre proposal!

Brian Rogers:

My thoughts exactly!

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