Letter: reporting what concerns?

Last month the Law Society of Scotland launched a new method to report misconduct and concerns (Journal, February 2019, 47, since amended online).

The SLCC commends the focus on managing risk and encouraging reporting. However, we were not consulted in advance on this new scheme, and believe it may contravene Scottish legislation.

We understand it does not assist the profession or public when the two organisations take different views, but in the absence of a joint position we wish to clarify our concerns. Flaws in the process may leave the public exposed to risk if action cannot legally be taken on information received.

The original article suggested that “misconduct” should be reported to the Society. The SLCC believes this clearly contravenes the Legal Profession and Legal Aid (Scotland) Act 2007, and was surprised such a misunderstanding of functions could occur.

This word has now been removed from online content. It is clear in legislation that the SLCC has exclusive jurisdiction to consider whether an issue needs examined as misconduct (and passed to the professional bodies); if such an issue is accidentally reported to the Society it is required to “without delay send the complaint and any material which accompanies it to the Commission”.

However, the issue is more complex and nuanced. The statutory definition of a complaint includes “any expression of dissatisfaction”. This could include a formal complaint sent to the Society in error, but also could include other types of intelligence about a firm. Indeed, a professional practice enquiry, where a solicitor flags concerns about a firm they are transacting with, could be an “expression of dissatisfaction”, which the Society would have a statutory duty to pass to the SLCC.

We are concerned that the new service duplicates costs for the profession by creating two reporting avenues for the same data in an already complex complaints system, that it may cause confusion for the public, and may mean information received cannot be legally acted on. A whistleblowing scheme may be a positive and required development, but both profession and public will need guidance on how that differs from the current statutory arrangements.

We urge the Society to issue guidance to the profession and public on how to differentiate an “expression of dissatisfaction” from the other matters it feels should now be reported directly to the Society.

The Society comments:

We recognise the important role the SLCC has in handling complaints against solicitors. However, the Society has a much wider public interest role as regulator of the profession. Our increasingly important work as AML regulator is subject to strict oversight by OPBAS, part of the Financial Conduct Authority. It was through discussions with OPBAS that the need for a new dedicated line was identified so people could more easily report concerns around suspicious behaviour. This intelligence is vital in assisting our own programme of firm inspections and other regulatory activity. It was this “reporting concerns” line which was established last month. No other procedures have changed and we will continue to refer any and all complaints to the SLCC, as we have done for the last 11 years.

We had offered to collaborate with the SLCC and create some new internal guidance to address their concerns. Given these discussions, we are surprised it has chosen to pursue the matter further via the Journal for reasons which remain unclear. We will continue to work with the SLCC and all our other partners to ensure regulatory issues are properly identified and acted upon.