On the scent

There seem to have been many red-letter days for the Scottish legal profession in the last couple of years. One that is likely to assume more significance for the ordinary practitioner than most is 1 October 2008; and though it will probably take a while before its impact is really felt, it can truly be said this time that things will never be the same again.

That widely predicted date has not in fact been finally confirmed, though on the Scottish Government’s timetable it is still the point at which the Scottish Legal Complaints Commission, among other duties, takes over the Law Society of Scotland’s role in receiving complaints against solicitors and adjudicating on inadequate professional service (IPS). Even taken at face value, however, the statement begs some important questions as to what, when and how. Any clients out there currently nursing their wrath to keep it warm as they save their grievances for the Commission, and equally those who hoped it might take a fresh look at complaints which have previously failed, are likely to be disappointed.

As an experienced complaints handler, Jane Irvine, chair of the new Commission, expects a rush of initial enquiries but is comfortable with its decision, embodied in its draft rules, not just to decline to entertain matters already in the past, but only to accept cases where the initial instruction – as opposed to the service the subject of complaint – was given on or after the launch date.

“We took counsel’s advice, and whilst we have the ability to take on any case that dates from before our opening, there are some limitations to the powers of awarding redress in those cases, so we had to decide on a clear way to start. We didn’t want to start with two sets of rules in operation on compensation, and it seemed to us the easiest way of identifying cases and creating a cutoff point was to look at the point when the service commenced.”

Acknowledging that difficulties may arise in deciding when something amounts to a new instruction, Irvine still believes this will be the easiest way of making it understandable to complainers, and avoid having cases being dealt with under both the old and new systems.

“The other alternative is looking at when the IPS actually occurred, which is going to be very difficult to verify as soon as a letter comes in the door. I think it would take us down the route of deciding if there was an IPS, before we’d even started an investigation, which I think would be very dangerous. Here we have to decide when the service started, which is a kind of neutral test.”

Budget points

So a slow start, albeit the Commission will from the outset take over the work of the Scottish Legal Services Ombudsman, a post Irvine has held for the past two years. But if watching your margins or your cashflow, you will be well aware that the first nine months’ operational life of the Commission – its financial year runs from July to June – will cost you a cool £307 as a practising solicitor, unless you can claim a discount as an in-house lawyer or less than three years qualified. Would that not suggest a rather large annual bill when the Commission is up to speed?

Irvine admits to having to guess at how many of the initial enquiries will translate into case files, but emphasises that the profession will not lose out. “We are not like most public bodies; we can carry monies over. If we don’t spend all our monies in the first year they will be carried over into the second year and will reduce the levy in the second year. But I think anyone budgeting for this type of work is guessing in the dark.”

The funding route, she points out, differentiates the Commission from non-departmental public bodies, “and I think it is important to recognise this as it means we are and will be more independent from government than – say – my office as Ombudsman or other NDPBs. We recognise concerns about us being independent of government”.

She adds that while the operating plan shows a staff of 45, they won’t all be “sitting twiddling their thumbs from day 1”, but will be phased in as work increases.

Open forum

Another concern of the profession has been whether a body required by law to have a lay majority at the stage of final determination, and with no prescribed qualifications for its caseworker staff, will have the knowledge of legal practice needed to pass an informed judgment on IPS questions. Considerable thought has been given to addressing this on both an initial and a continuing basis, enshrined in what Irvine labels the “three philosophical areas that this Commission intends to uphold”.

First comes its independence: “we are not a consumer champion, nor are we there to support the profession”. But it will not retreat into some judicial isolation: three advisory forums, one for consumer interests, one made up of practitioners, and the third a mediation forum, should ensure that the Commission “keeps in touch with what is really happening in the market”, as Irvine puts it. And finally there is early resolution, with procedures designed to screen cases quickly and proceed to investigation if they are accepted, and also the incentive via stepped case fees to resolve disputes at an early stage – of which more shortly.

The forums will have an important role. Irvine recognises that “the longer you deal with complaints, the more you yourself get sucked into the system, and we will need constantly to bounce against the consumer panel and the practitioner panel to say, have we lost it here, are we looking at this correctly?” Hoping that the profession will deploy with the Commission some of the goodwill it has shown in supporting the Society’s reporter system, she adds: “I’m sure the consumer panel will occasionally say, ‘This is ridiculous, if you look at other areas, they’re more modern than you’, and I’m sure the practitioner panel will say ‘Ah, but when you’re doing this realistically you can’t hit those timescales’, or ‘Are you aware of these constraints that bind us’, so I think the Commission has to be very careful to keep in contact with the outside world, to get the best of both systems.”

Skill level

With her background in addressing service issues across a wide spectrum, ensuring the right mix of skills is something Irvine is particularly keen to stress. “I’ve done police complaints, I’ve done communication service complaints, I’ve done funeral complaints, you need that correct mix, you need the practitioner view of it as well as the lay view of it to determine these complaints correctly. So we will be ensuring that we have the correct level of expertise within the Commission.”

The initial plan is to have investigators in four specialist teams: conveyancing, family matters, litigation, and estates and inheritance, albeit some crossover is likely. “We think initially some level in specialisation in staff reflecting the types of historic cases that have come through will be helpful. But over time we think that specialisation will disappear.”

Unlike the Society’s complaints system, where case managers deal with the parties until the issues are identified and a reporter then examines the files and proposes an outcome, the Commission’s case investigators will have to combine both functions. I suggest it’s a very demanding thing to be an impartial judge of people who may be giving you a hard time over the phone.

“Yes, but that’s the skill of being a case investigator and that’s why they cost a reasonable salary these days. They’re highly skilled and experienced people who will be used to dealing with people on both sides, staying independent, staying objective and dealing with a sophisticated profession and sometimes sophisticated complaints. So they have to be skilled people, yes. Nobody’s saying it’s an easy role.”

Irvine emphasises that investigators will attempt to ingather the evidence they think they need, and not confine their attention to the files as is common at present – without detracting in any way from the importance of solicitors keeping proper records, a point on which she welcomes the support of the Society’s Philip Yelland. “We’ve tried to ram home on a number of occasions before this that if you keep good records, then clearly that will be important to us, but they have to be proper records, contemporaneous records and records that are auditable.”

And timescales – how will they compare with the Society’s recent performance of concluding around 90% of cases within nine months? The Commission’s target is a month for the screening stage, four to six months for the investigation, then two to four weeks putting the suggested settlement to the parties, after which it would go to the commissioners if necessary.

Flexible body

Irvine regularly returns during the interview to her desire to see cases resolved without going right through the process, and believes that some solicitors’ firms still need to do more to attempt a constructive settlement of complaints at an early stage. Equally if complainers go straight to the Commission, it will refer them back to the firm to see if the matter can be resolved internally. The levies to be charged when complaints are upheld will reflect this: there will be no fee at all where a case is resolved before even reaching mediation, a £200 charge where settled by that method, £250 for resolution by an investigator (£350 for a linked repeat finding within two years) – and a whopping £1,000 if it goes all the way to the commissioners.

Mediation, incidentally, is intended to work much as it does in the sheriff courts: an in-house manager will have a panel of mediators to call on, who will receive a case fee. That will allow flexibility in location and budgeting, as well as quality management and relevant areas of expertise.

But is there any incentive on a complainer to settle, and what will happen to the case fee where they simply go all the way in the hope of getting a better result? “We are leaving ourselves with a discretion not to charge that case fee if for example an offer of settlement has been made which is not bettered by the Commission’s findings, or if we’re just satisfied that the practitioner has made all efforts to settle it and maybe the dispute was wholly intractable and required a third party intervention, so we’re being very careful that it’s not a hammer on the professionals to settle and whatever they do they’re going to be charged this case fee.”

Flexible and proportional is also something of a mantra for the way Irvine sees the rules working. Determination committees can consist of between three and nine commissioners – there has to be a lay majority – and “we’re reserving very clearly the right to conduct it as we want to: we will not be getting into full adversarial mode, and we’re reserving the right to do it on documents only, by email, not necessarily by meeting in Edinburgh, if that’s appropriate”.

It came as something of a surprise to read in the draft rules the possibility of members of the public attending Commission hearings, especially as the Act restricts the circumstances in which a solicitor can be named. But Irvine recognises that this would be the exception rather than the rule. “It could happen if it was a big case, a matter of public interest that was already out in the press, or if it related to a crux matter on the way say conveyancing was conducted or something like that, but generally these are private contracts….

“The only thing we’ve bound ourselves to do is to do it proportionately. Most of the rules give us a discretion to act according to the seriousness of the case. There’s no point in wheeling out nine commissioners at huge cost to determine a small case.”

Reporting function

Similarly when it comes to publicising Commission decisions, Irvine accepts the difficulty of publishing useful case studies, because so much often turns on what happened during the actual instruction. “But we will also have two further powers – one is the oversight over misconduct, and the other is the ability to publish a report if we were concerned about any particular area of practice, and I think that’s an area we might use constructively.”

They might, for example, make a special study of conveyancing cases – “where are the problems arising for the practitioner and the client, is it because people don’t understand what is happening, or because solicitors are trying to do it for too little money these days, what are the problems? So I think we could use that possibly more than publishing individual case reports. But I don’t know. A lot of this depends on what comes through the door.”

Also to be fully worked out is liaison with the professional bodies, so as to fulfil the Commission’s additional supervisory roles without impeding efficiency. “We have to keep this careful balance of having an oversight but we must work with them. What we can’t have is cases not being dealt with efficiently because perhaps all three of the bodies are doing a separate investigation into a particular case… The reporting structure in the rules is not only to avoid duplication, it’s to make sure that if there’s an element of service that tipped into misconduct because it’s a repeat failure, then we can report that to the Society or the Faculty.”

Common interest

There can be no doubt that the Complaints Commission will bring some fresh thinking to professional service issues, and while Irvine describes the Society as having had to “battle for a long time with old legislation”, she believes that its present system has defects the Commission can improve on.

“I see its greatest weakness at the moment is still the inconsistency in quality of reporters, and the variation in the depth to which there is a true investigative process working within the Society. And inconsistencies between committee determinations. I’m very conscious that we have to be much more consistent in the way we operate. I know there are also difficulties in bringing case management and investigative structures together, but we think that’s a better way of working.”

There may have been justified alarm within the profession at some of the early proposals regarding the Commission, most of which did not in the end become law, but it is safe to say that legal practitioners should now follow the lead of their governing bodies in embracing the new regime.

As Irvine sums up:

“We’ve been very grateful for the co-operation by the Society and the Faculty so far. I’m sure there will be areas that we agree to disagree on or that cause difficulties for one of us, just as I’m sure there are some parts of our system that complainers will find difficult or they don’t like, but at the moment there is a terrific degree of goodwill. We have to make this work. If it doesn’t work it will cost the professions more money.”

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