Response to Ombudsman's recommendations

1. Where there is a finding of inadequate professional service against a firm, the Society should also record that finding against any individual solicitor who is considered by the Society to have been responsible for such inadequacy. A solicitor’s record should be made available to a Complaints Committee after it has been determined that there has been an inadequate professional service and the committee should be obliged to consider whether that record warrants the solicitor being referred the Complaints Supervisory Committee with a view to disciplinary action being taken (paragraph 4.21).

Society response

The Society rejects this recommendation.

Since the inception of the legislation relating to inadequate professional services in 1989, the Society has tried to find the best way of ensuring that where a compliant in relation to service is made, every opportunity is taken to try to resolve that matter by agreement. A service complaint is not, of itself, a disciplinary matter, and the effect of the legislation is to provide clients with a right to redress without the need for court action.

If there was to be formal record kept of all findings of inadequate professional service against individual solicitors, the goodwill built up through the conciliation and dispute resolution procedures would be lost. Many solicitors would take the view that it was important to fight any potential finding because of its possible implications. That would be to the detriment of the dissatisfied client. A finding of inadequate professional service should be seen as a benefit to the dissatisfied client rather than a penalty against the solicitor.

In the past, where a Complaints Committee has considered a number of complaints of inadequate professional service against the same firm at the same time, consideration has been given to whether or not the cumulo effect of those complaints might give rise to any issue in relation to the solicitor’s professional conduct in regard to those complaints.

If matters of conduct arise out of complaints of inadequate professional service then the appropriate committee to consider such an issue is the appropriate Client Relations Committee and not the Supervisory Committee.

In terms of the legislation, findings of inadequate professional service are normally made against firms rather than individual solicitors since generally it is the firm which provides and bills for the service. In many complaints where a finding of inadequate professional service arises it is not possible to identify an individual solicitor who may have been responsible for the difficulties arising. Indeed the difficulties may arise from the actings of a non solicitor employee rather than a solicitor.

2. The Society should establish a working party with a brief to determine standards of performance in major areas of legal work against which complaints about inadequate professional service can be judged (paragraph 4.22).

Society response

The Society has noted this recommendation and will set up a small working party to consider the different issues arising from this recommendation. The Report of the Working Party will be considered by the Council and a formal response will be given thereafter.

3. The Society should give complainers a right of appeal to the Director of the Client Relations Office where their cases have been determined administratively (paragraph 4.23).

Society responses

The Council has given careful consideration to this recommendation and accepts that, in principle, a Review (rather than Appeal) in relation to matters determined administratively may be appropriate in certain circumstances.

The Society will seek further discussion with the Ombudsman in this regard.

Society response

The Society examined these implications previously. In 1982 the Society obtained an Opinion from Counsel in relation to the whole question of the ownership of a solicitor’s file.

This matter raises issues of law, practice and policy. It is appropriate to consider these and seek a further Opinion from Counsel on the current legal position.

5. The Society should experiment with the appointment of law volunteers in urban and rural areas who would visit complainers for the purpose of assisting them with the presentation of their complaints to the Society (paragraph 4.46 and 4.47). 

Society response

The Council accepts that any person wishing to make a complaint should have, where necessary, assistance to do so.

The recently revised leaflet “Dissatisfied with your Solicitor?” contains a Helpform which a dissatisfied client can complete and return to the Society to enable a complaints investigation to commence or for transmission to a Client Relations Partner to try to resolve any difficulties.

If a dissatisfied client has any difficulty in completing the Helpform, they can contact an advice agency or the Society’s Helpline for assistance in the completion of the form.

It is accepted that even with this assistance available, there may be a small number of individuals who require additional help.

The Society will consider this issue as it arises on a case by case basis. If the Ombudsman becomes aware of any such cases, the Society will consider them.

1. Recommendations to the Secretary of State for Scotland

“The Minister with the appropriate responsibility in the Scottish Parliament is invited to seek the necessary powers which would enable directions to be issued to professional bodies with regard to the process by which complaints are determined and the role of lay people in that process” (paragraph 3.7). 

Society response

The Society notes the Ombudsman recommendation in relation to the Minister for Justice being invited to seek the necessary powers to enable directions to be issued to professional bodies with regard to the process by which complaints are determined and the role of lay people in that process.

This closely mirrors the recommendation made by the Ombudsman two years ago and the Society’s position in that regard has not changed.

It is a fundamental element of self regulation that a regulatory body should itself establish the procedures for determinations of complaints to be in a position regularly to assess and where necessary modify procedures.

The Society is committed to the provision of a fair, speedy and effective system of dealing with complaints. It has demonstrated this by improvements that have been achieved over the years and by constantly reviewing its procedures. The Society believes that it is in the best interest of the public and the profession that it should have the flexibility to continue the process of improvements and that it is unnecessary for the Minister of Justice to seek the powers suggested by the Ombudsman.

Since the Ombudsman last made this recommendation the Society has recruited a significant number of new lay members to be members of Complaints Committees by open competition and further this year another initiative has been the production of a revised version of the leaflet “Dissatisfied with your Solicitor?” which sets out not only details of the Society’s procedures but also how a dissatisfied client may seek to resolve matters with the solicitor directly in the first instance.

The Society’s view is that since it has never failed to consider and respond to any recommendation arising from the Ombudsman’s Annual Report or any individual case, such powers as suggested are unnecessary and could restrict the Society in constantly updating and improving its procedures.

2. The powers of the Scottish Legal Services Ombudsman should be extended to enable the Ombudsman to conduct, on an annual basis, an audit of cases which have been determined by the professional bodies but which have not proceeded to the Ombudsman’s Office by way of handling complaints (paragraph 3.8 to 3.10). 

Society response

In terms of current legislation any person who is dissatisfied with the way in which the Society has handled a complaint is entitled to refer matters to the Scottish Legal Services Ombudsman receives access to the Society file for the purposes of considering the handling of the matter and reporting on this.

The Ombudsman seeks access to files where the complainer has expressed no dissatisfaction to him about the handling of the matter. When a complaint is made, that complaint is confidential between the complainer, the Society and the solicitor or solicitor’s firm involved. If a file is to be submitted to the Ombudsman where he has received no handling complaint, that confidentiality would be breached. It is essential, in the interests of public confidence in the system, that such confidentiality is maintained. If the Ombudsman was granted the proposed power, his independence in reviewing the complaint, should the matter (within the statutory six months period) be referred to him, would be seen to be compromised.

Over the course of the last two years the Society has introduced a Quality Assurance Working Party to review closed complaints files. The remit of that Working Party has been considered and discussed with the Ombudsman. The reports of Quality Assurance Working Parties to date have been made available to the Ombudsman for information. These reports do not identify individuals by name and there is, therefore, no breach of confidentiality.

The Council considers that with this Working Party made up of both qualified and lay members regularly also checking on quality of complaints handling, there are sufficient safeguards in place to ensure a satisfactory standard of complaints handling is being achieved and maintained and that it is not necessary to extend the Ombudsman’s current powers.