B1.17 Duty to Co-operate with the Scottish Legal Complaints Commission
Rule B1.17 - FAQs
Why is the rule being introduced?
The SLCC has reported increased instances of non-compliance by solicitors with requests from the SLCC for documentation or information, made under s17 of the Legal Profession and Legal Aid (Scotland) Act 2007. Whilst most solicitors engage promptly and fully with the complaints processes, the Regulatory Committee feels it is appropriate to introduce a new practice rule to clarify and emphasise that solicitors have duties in relation to the SLCC, including a duty to comply with statutory notices, and should be co-operating with the SLCC, so as to allow the SLCC properly to exercise their functions under the 2007 Act. Cooperation with the SLCC and the Society assists with a more efficient complaints system and helps to protect the reputation of the profession. The new rule echoes the existing duty for solicitors to cooperate with the Society, as set out in Rule B1.16.
Does the rule impose new obligations on solicitors?
It is not intended that the rule create obligations on solicitors which would not apply without the rule, and there is no intention that the proposed rule be interpreted as ‘overriding’ any professional duties that a solicitor may have to clients (or the court).
The Practice Rules set out those duties and there is existing Guidance on how to reconcile these duties in the context of providing material to the SLCC (or indeed to the Society) available on the website here Guidance related to Rule B5: Client Relations Manager (see, in particular, the paragraphs under the heading ‘Responding to third party complaints’).
Does the rule impact on the SLCC’s powers?
The rule obviously does not alter existing statutory provisions setting out the SLCC’s powers in relation to requiring the production of documents or information, or the circumstances where the court may make an order requiring such production. The existence of the rule does not alter any rights which solicitors and practice units may have in relation to the exercise of those powers.
Does the rule prevent solicitors explaining to the SLCC any problems which they have with complying with a request or notice issued by the SLCC? Does it prevent solicitors seeking amendments to requests or notices to resolve such problems?
The rule does not preclude any person from whom the SLCC has sought to obtain documents or information from seeking to explain to the SLCC why compliance with a particular request or notice, on its terms, creates genuine problems – and seeking to engage with the SLCC in resolving those problems. The rule does not stop solicitors or practice units from seeking extensions of the time allowed for compliance where the circumstances make that necessary or appropriate, or from seeking to have certain documents or information excluded where the circumstances make that necessary or appropriate. Solicitors are, however, expected to act in good faith, recognising the statutory role and powers afforded to the SLCC and the public and the profession’s interest in facilitating the effective and proper exercise of those powers.
By way of illustration, it may be that the practitioner considers that the production of certain documents or information is prohibited in a third party complaint as the client has validly asserted legal professional privilege in respect of those documents or that information. When the complaint comes from a client any right of confidentiality, which includes legal professional privilege, must be waived for a complaint to be accepted by the SLCC.
The protection offered by legal professional privilege in a third party complaint was considered in the recent case of SLCC v Donald Murray and James McCusker.
In that case, the client did not waive their right to privilege. In responding to the third party complaint, the solicitors were not entitled to disclose any communications or documents within the scope of that privilege, without their client’s consent. They were, however, required to disclose items on file that were confidential.
The decision in this case means that when the complaint comes from a third party, the solicitor must not disclose documents covered by confidentiality and legal privilege without the prior consent of the client. However, if the client does not consent, the SLCC can serve a notice on a solicitor under s17 of the 2007 Act requiring them to produce confidential material to the SLCC. This notice does not entitle the SLCC to documents which are covered by legal professional privilege.
In contrast, when the complaint comes from a client any right of confidentiality or legal professional privilege is deemed to be waived for a complaint to be accepted by the SLCC.
What would happen if an allegation of breach of the rule is made against a solicitor?
An alleged breach of rule B1.17 (like any other alleged breach of any practice rule) may trigger a complaint being made to the SLCC (e.g. by a client or a third party or, in appropriate cases, by the Society itself). The processes which would apply would be the same as apply to any other complaint alleging breach of a practice rule. Decisions to make complaints in the name of the Society are taken by appropriate sub-committees of the Regulatory Committee. In the case of complaints alleging breach of a practice rule within the Standards of Conduct at B1, it is the Complaints and Oversight Sub-Committee that decides whether or not a complaint is made. Such decisions are made in accordance with the Society’s obligations in relation to the regulatory objectives (as set out in section 1 of the Legal Services (Scotland) Act 2010 and in a way which seeks to adopt best regulatory practice.
Can the SLCC make a complaint alleging breach of the rule?
The court has previously held that the SLCC’s statutory remit does not include instigation of complaints in the SLCC’s own name (see Francis Cannon Petition for Judicial Review [2020] CSOH 23).
The SLCC is likely to advise the Society if it considers that a solicitor or practice unit is not complying with the rule. The Society has already agreed a protocol with the SLCC whereby the Society may engage directly with solicitors or practice units where the SLCC has reported non-compliance of a nature which the Complaints & Oversight Sub-Committee considers requires action by the Society. In some cases the Society may decide to make a complaint in its own name – the process for making such complaints is explained above.