Court of Session decision underlines need to review regulation of the legal profession

A recent decision from the Court of Session on the categorisation of a complaint against a law firm has raised issues in how complaints against lawyers should be handled.

The Law Society of Scotland and the Scottish Legal Complaints Commission (SLCC), including its Consumer Panel, believe that regulation within the legal sector should be modernised and have called for new legislation to enable this.

The decision in the case of Anderson Strathern vs. SLCC (CSIH 71XA16/15) was on an appeal against an SLCC decision on the categorisation of a complaint.  The complaint had previously been appealed twice (by the complainer) and was then appealed by the law firm complained about. 

The Scottish Legal Complaints Commission, the gateway for all legal complaints in Scotland, had determined that three of the issues within the complaint were hybrid and contained both elements of potential inadequate service and conduct.  The Court of Session judges determined two of the issues to be about service only and the remaining issue purely conduct. Lord Malcolm determined that complaint issues in general could not be classified as hybrid.

Lorna Jack, Chief Executive of the Law Society of Scotland said: “We have always agreed that the service provided by a firm and the individual conduct of a solicitor represent distinct issues, even though they can arise from the same set of circumstances.   We were happy to support the SLCC in its arguments during its appeal.  However, we now need to respect this judgment which creates some key challenges for how the SLCC assesses and then handles hybrid complaints.  We will work with the Commission and the Faculty of Advocates so the appropriate changes are made and to ensure conduct issues are passed to the relevant professional body for investigation as swiftly as possible.  After all, there is an overarching public interest in ensuring solicitors who do not meet certain professional standards are properly disciplined.

“Longer term, this judgment further demonstrates the case for looking again at the whole legislative framework for regulating the Scottish legal profession of which the handling of complaints is an important part.   The Scottish Government was elected on a manifesto promise to consult on this issue and we will continue to push for this to remain a priority.  The reality is that much of the legislation is now over 35 years old and is simply unfit for purpose for today’s modern and ever changing legal profession.  We desperately need a new, flexible and enabling framework for regulation which works for the public and for the legal profession which provides such important services to clients across Scotland. With almost 50 years’ experience in setting and upholding standards in the legal profession, we want to play a full part in developing that new framework.”

SLCC Chief Executive Neil Stevenson expressed his disappointment in the decision: “The process of categorising issues within a complaint as hybrid is a long standing one, in use by the Law Society of Scotland before the SLCC was founded, and recognised as appropriate by leading academics and expert regulatory commentators.

“However, the categorisation of whether a complaint is either conduct, service, or both is not just an academic one.  Under the current system, if a complaint issue is classified as service or hybrid, the SLCC can award a maximum of £20,000 in compensation. Reclassifying hybrid issues as conduct only will reduce the maximum compensation payable to the complainer to £5,000. Seeing lower compensation in the very cases which could have caused greater cost and impact for clients appears to be a perverse outcome.

“While the clarity the opinion brings is welcome, this decision could have a huge impact on our process and, unfortunately, our ability to provide swift redress to those who bring a valid complaint.  We will continue to study the judgment and work closely with others to ensure that legal consumers don’t lose out. Once the judgment has been fully considered, we will communicate with the profession and public further about current cases.  We have been calling for some time for a simplification of the ‘customer journey’ in legal complaints, recently through publishing our #ReimagineRegulation paper, and believe this only serves to increase the urgency of legislative change.

Carol Brennan, Chair of the SLCC Consumer Panel, also commented on the judgment: “As Consumer Panel Chair I share the Commission’s concerns at the possible detrimental impact this decision will have on complainers’ access to redress, particularly in relation to levels of compensation. The suggestion put forward by Counsel for the Appellants that complainers who enter the conduct complaint route, which affords significantly lower levels of compensation, still retain the right to pursue damages in court proceedings, appears to counter the very rationale for the SLCC’s creation.”