Solicitor's 'lapse of judgement' is condemned

The Inner House of the Court of Session has condemned a solicitor’s “extraordinary lapse of professional judgement” in failing to produce a response to a complaint, but stopped short of making a finding of contempt of court.

This is the third time the Inner House has convened a contempt of court hearing relating to a solicitor’s actions and follows a case in May where for the first time a solicitor was found to be in contempt of court for non-compliance with a court order and an SLCC request for information.

Lord Malcolm stated that the solicitor was “guilty of an extraordinary lapse of professional judgement” and demonstrated behaviour that was “quite extraordinary for a professional person”. However, the bench decided that in light of factors surrounding the solicitor’s personal circumstances he should not held in contempt of court.

Although the solicitor had belatedly passed the file requested to the SLCC, the court made clear that it did not believe that the file had been produced timeously, nor that the response provided had fulfilled the requirements of the notice serviced by the SLCC and subsequently, the court.
The firm was found liable for expenses on an agent client, client paying basis as a mark of the court’s unhappiness in this matter.

Lord Pentland noted that the court has seen a few such cases recently and that this failure to respond impacts the whole legal profession, in terms of both reputation and adding to the SLCC’s costs and therefore the levy.

The SLCC was also asked by the court to write to the Law Society of Scotland to provide details of this decision with the court stating it expects the Society to carefully consider what action it might take.

Neil Stevenson, Chief Executive, said: “This is the third such case we have seen come before the Inner House of the Court of Session, but this is the tip of an iceberg of unnecessary delays, costs and frustration which the SLCC deals with every week in trying to discharge its statutory duty to investigate complaints made to it.

“We have a number of other cases approaching this stage, and which, without meaningful action or a significant change in approach by the profession, will see other solicitors brought before the bench to answer for their actions in wilfully ignoring their basic regulatory duties.

“While welcome, these hearings do nothing to remove the delays already experienced by complainers exercising their statutory right to complain, or meet the costs incurred by the SLCC and borne by the whole profession.
“The staggering cost of this approach – the only one currently open to us – is clearly entirely disproportionate to the issue at hand which is basic professional compliance with statutory regulation. It shows the current system of regulation to be utterly ineffective at delivering a proportionate way for us to access the information we need from firms in response to complaints and to conclude our investigations.

“The debate on the Regulation of Legal Services (Scotland) Bill gives us an opportunity to seek vital improvements the complaints system for consumers of legal services and for those practitioners who deal well with complaints and co-operate with us when necessary.

“We urge all those with a role to play in legal services regulation to work with us to achieve a system that achieves a swift, effective complaints process and deals effectively with those who act to hinder it.”