Confidentiality and third-party complaints

For most solicitors in private practice, dealing with complaints from clients is part and parcel of the job. More recently, over the last eight years solicitors have had to focus on dealing with the Scottish Legal Complaints Commission when complaints are formalised and have not been dealt with directly between the firm and the client.

While most complaints are made to firms by their own clients, it is well known to the Law Society of Scotland that complaints can be made to the SLCC by “any person”, and complaints from third parties do raise issues for members when dealing with them. One particular issue which the Professional Practice team has been advising on recently is the problem solicitors face in responding to a complaint that has been made when they want to use information which is confidential to their client (who ironically has not complained!), and are unclear about what they can and cannot do in that situation.

Although the Society is very well aware of the importance of members being able to defend themselves against such claims, the position is quite clear and the obligations of confidentiality owed to clients take priority and defeat any argument the other way. If a solicitor thinks that they need to mention confidential information in a response, the only option open to them is to contact their own client, explain the situation and ask for a waiver of the confidentiality duty owed which would otherwise prevent disclosure. If the client is prepared to grant that waiver, the solicitor can be comfortable that they can use the information in their response. If the client does not grant a waiver, any response to the SLCC needs to be restricted accordingly and the solicitor can only point out to the SLCC in the response that the ability to respond fully is limited on that basis.

As a matter of general advice, it is worth reminding members that they should check whether any information they want to use is already in the public domain before they contact their client for a waiver. If it is, that information can be used in a response even though it would otherwise be caught by the confidentiality duties owed by the solicitor. Certain matters are much more likely to fall into that category and it is well worth looking into, if this arises in practice.