B5: Client Relations Manager
This Guidance has been updated in light of the Court's Opinions in the case of Scottish Legal Complaints Commission v Donald Roderick Murray and Another issued on 11 October 2022 and 9 December 2022 respectively.
1. Records to be kept (Rule B5.5.1)
It is not intended that the record keeping exercise should simply be an administrative one. Experience shows that keeping records of complaints received can assist a practice unit in identifying areas which need to be improved in the service to clients and often point up either problems with systems or the way in which a member of staff may be dealing with matters. It is considered that the Client Relations Manager of a practice unit should hold a record of all complaints received even if the practice unit itself splits into various different departments for business. That way the Client Relations Manager can get an overview of the work being carried out and where difficulties may be arising.
It is recommended that the central record follow the form set out in this template, which may be downloaded from the Society's website, certain fields of which may be populated using the standard terms therein.
Whilst practice units are free to record separately such additional information as they consider necessary for their own internal processes, the central record must show the following information:
1. File reference
2. Date the complaint was made;
3. Description of the substance of the complaint;
4. Category of personnel against whom the complaint was directed (ie. unqualified; trainee; solicitor; or principal);
5. Type of business in respect of which the complaint was made;
6. Action taken by the practice unit in relation to the complaint;
7. Date the complaint was closed;
8. Whether or not the complaint was resolved;
9. Learning outcomes from the complaint.
This type of record should help a Client Relations Manager see at a glance if there is a common theme to complaints being made, or common issues that might need to be tackled; and will enable the Society to monitor trends in areas of practice which may be generating complaints. It is recommended that records of individual complaints should be retained for five years from the date the matter is resolved or closed.
The recommended format has been devised to obviate, or at least minimise, any requirement for details on the central record to be redacted by practitioners prior to delivery – the generic information recorded ought not to require to include material from which the identity or confidential affairs of a complainer could be readily derived. Practitioners will nonetheless require to exercise their judgement in that regard so as not to reveal to the Society in any disclosure of the central record any information which would otherwise be confidential or privileged. If it is necessary for a central record containing redactions to be delivered to the Society, then an explanatory note setting out why the redactions have been made should accompany it.
Records deliverable to the Society (Rule B5.5.1.1)
Where the Society requests delivery of a practice unit's central record, it should be delivered promptly within 21 days from the date on which the request is made.
2.2 Written procedure (Rule 5.5.2)
In September 2001 a protocol was published in the Journal (page 8) for handling complaints within firms. The principles set out in that protocol have not altered in the intervening years. It is believed that where a client or any person wants to make a complaint they should be given clear written information about what to do, who to contact, and how to set out the complaint. It is suggested that the written procedure should be kept as simple as possible and can be contained either in a leaflet or on a single A4 sheet of paper which can be handed or sent to a client, or sent to any other person who indicates they wish to make a complaint.
The essentials of the procedure are considered to be as follows:
1. Who should the complainer contact in the first instance if they have a concern?
It could be the solicitor a client is instructing, the departmental head or the Client Relations Manager.
2. What should they do if they are dissatisfied with the answer they receive?
At that stage should they contact the Client Relations Manager or if they have been to the Client Relations Manager they can be advised to contact the Scottish Legal Complaints Commission.
3. What information does the practice unit need from them to enable them to investigate the complaint?
4. What timescales will be involved in dealing with the complaint?
5. Will the matter be dealt with in writing or will the complainer be offered a meeting to discuss matters?
6. How will the matter be finalised?
7. Will a letter or other form of communication be sent confirming the outcome of any attempt to resolve matters or set out, if matters are not resolved, why they have not been resolved?
There is a need to be aware of the Equality Act 2010 and to vary the procedure if the complainer either has difficulty in reading or writing, or has language or other difficulties which would make communications in writing a barrier to them.
Responding to third party complaints (Rule B5.5.2)
There is a professional duty to respond to complaints from third parties. They should be treated as seriously as a complaint from a client. Responses to third party complaints do, however, require to be framed subject to the duties which solicitors owe to their own clients and in line with the views expressed by the Court in the case of Scottish Legal Complaints Commission v Donald Roderick Murray and Another on 11 October 2022 and 9 December 2022.
In its Opinions, the Court made a clear distinction between matters which are confidential and those which are subject to legal professional privilege.
Confidentiality is a professional duty and covers matters which are actually confidential and not in the public domain. For example, the contents of a document which has been registered in a public register can never be confidential.
Privilege is a matter of law and is narrower than confidentiality. Law, Practice and Conduct (2nd Edition) by Alan Paterson and Bruce Ritchie, comment that only professional communications between a solicitor and their client which are referable to the giving or receiving of advice within the solicitor and client relationship are covered by privilege. A fuller discussion can be found at Chapter 6, Paragraph 6.05 of the text. There is extensive case law on the meaning and implication of legal privilege. For example, see Three Rivers District Council v Governor and Company of the Bank of England (appellants) (2004) [2004] UKHL 48.
There are two types of privilege that can be claimed: (1) legal advice privilege; and (2) litigation privilege. Legal advice privilege relates to communications between a client and solicitor for the dominant purpose of seeking or giving legal advice (on any area of the law). Litigation privilege relates to communications, including those with third parties, which are made for the dominant purpose of ongoing or expected litigation.
The Court confirmed that a statutory notice issued to a solicitor under the Legal Profession and Legal Aid (Scotland) Act 2007 provides the requisite statutory authority to overcome client confidentiality (under Rule B1.6). Therefore, it is the view of the Society that, if a solicitor is served with a notice by either the Scottish Legal Complaints Commission (under section 17) or the Law Society of Scotland (under section 48) , a solicitor must comply with that notice and provide the confidential materials requested, even if the client has not consented to the disclosure of that confidential information. This notice does not entitle the Scottish Legal Complaints Commission or the Law Society of Scotland to documents which are covered by legal professional privilege.
In Scottish Legal Complaints Commission v Donald Roderick Murray and Another, 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.
Therefore, in dealing with a third party complaint, consideration should be given to the following:
- It is possible that not all the information a practice unit holds on behalf of their client is confidential or privileged. There may be matters which are in the public domain or otherwise which can be disclosed in order to answer complaints. It may be possible to refer to other sources from which information can be obtained. This is a matter for the professional judgement of the Client Relations Manager.
- When a complaint is made to the practice unit, in the absence of a statutory notice, the Client Relations Manager must act with caution to ensure that any information or documentation which is confidential or privileged to their client is not disclosed to the complainer, the Scottish Legal Complaints Commission, the Law Society of Scotland or otherwise, without the specific written consent of its owner.
- The client should be advised that a complaint has been raised which the practice unit are obliged to answer. The extent to which the Client Relations Manager is able to disclose confidential or privileged information will depend on their instructions, by which the Client Relations Manager is bound, at that stage. If the client agrees to disclose confidential or privileged information, the Client Relations Manager should ensure that such authority is obtained in writing.
- The Client Relations Manager should consider whether any complaint made by a third party brings the practice unit into conflict with their own client and, if so, whether they require to withdraw from acting for them, or advise them to seek independent advice.
- Even if a client instructs the Client Relations Manager not to disclose confidential or privileged information, the Client Relations Manager remains under a duty to deal with the complaint. The Client Relations Manager should explain to the client that they are under that duty, and have a professional obligation to correspond with the third party to the extent necessary to deal with the complaint. It would be prudent to inform clients of this obligation in writing at the outset of each new matter so that clients are made aware of this possibility.
- In the event that a complaint is made to the Scottish Legal Complaints Commission (and in the case of a conduct complaint, is referred to the Law Society of Scotland for investigation), it may result in a statutory notice under the 2007 Act being served seeking confidential material. If this happens, the Client Relations Manager is obliged to comply with that notice in terms of the Court’s Opinions, i.e. to disclose confidential information. Privileged information must not be disclosed without the client’s consent.
Last reviewed: 5 April 2023