This article was published in the September Gazette of the Scottish Law Agents Society. It has brought a considerable amount of comment and, if members have any information that might help to develop the consideration of this issue they send it to firstname.lastname@example.org for potential publication in the December Gazette. Given the delicacy of the topic, names can be withheld from publication.
“A SECRETIVE CULTURE” EXPOSED re Law Society Policies on Complaints
“Information Sharing Protocol” between the Law Society and its members required
I wish to bring to the Profession’s attention a matter which has been troubling me for some considerable time in my work as an adviser with the Legal Defence Union (LDU). I will not cover the whole history but after much pressure, fishing and requests I am now in the fortunate position of being in possession of 2 Policy documents regarding Complaints.
There may well be others but the two that I do have are
(1) Policy on Withdrawal of Complaints (POWC) and
(2) Policy on Discontinuance of Complaints (PODC).
My co-advisers at the LDU had not seen them before or even known of their existence.
If you faced a Complaint and one of these documents was relevant would you not wish to know the contents and your legal adviser to have seen these?
I am involved in a recent Complaint which went through the Professional Conduct Committee and is now before the SSDT. On several occasions I requested these Policies from the Society and from the Fiscal but they were refused and not supplied. I had to lodge an application for production of these documents (which was opposed by the fiscal) but quite coincidentally in another unrelated Complaint matter they were supplied. I am not prepared to give the name of the person who quite innocently sent them and in my opinion did the completely correct thing in sending them in response to my request. I was then able to lodge them with the SSDT as productions so my application for production was not proceeded with.
To illustrate the importance of disclosure of Policies I mention a case in which I am involved which was started before the POWC was issued in February 2012. My case would not have been treated the way it has been and would never have been pursued if the legal advice underpinning that Policy and the terms of the policy had been adhered to. Despite drawing this Policy to the attention of the Fiscal the case is still being pursued and the fiscal is arguing against the terms of the legal advice underpinning the Law Society’s own POWC.
All this secrecy is not befitting of a members organisation representing Solicitors. The Law Society of Scotland exists for the benefit of its members (and the public) and if it wishes to represent the members then I do believe it has to treat them with proper respect. I cannot see how it can possibly ever have been in the interests of the Society or its membership to withhold production of these Policies. As a Solicitor defending fellow solicitors against complaints I think it an absolute right to be able to see the Policies that are being referred to which are shaping the advice that is being given. There is a need to know whether the policies are being interpreted correctly or not and if the correct decision has been taken based on their terms.
While Rosemary Agnew was still Chief Executive of the SLCC she sent me a Policy Document in 2010 with all of their Policies on
1) Accepting Complaints made outside time limits.
2) Assessing Eligibility of premature conduct and service complaints
3) Frivolous, Vexatious and Totally Without Merit Complaints
4) Requesting information and explanations
5) Settlements and disposal at Determination
6) Complaint Levy Policy
It was a large booklet but they supplied it simply because I asked for it. How that contrasts with the Law Society. It casts the Society in a very poor light.
I have written to the President requesting that he personally intervenes in this matter with a clear steer from the top that this “secretive culture” has to end. I believe these Policies should be available on request to Solicitor and complainer alike. They could be on the website along with the rules and guidance and that is what I would prefer. However for my own part I would certainly be prepared to accept that they be mentioned on the website and supplied in written form if a request is made.
There may well be other Policy documents which I have not come across thus far and I have requested from the President a list of all the current policies that are held regarding Complaint and Professional Practice matters.
I should mention as relevant that members of the Scottish Law Agents Society met with a number of officials with the Law Society from the Financial Compliance Team (FCT), Guarantee Fund Committee (GFC) and Professional Practice Committee. This was to discuss concern about the Law Society becoming a policeman for breaches of CML rather than focusing on the big picture of fraud and the like. It had seemed to us that there had been a policy change in the way FCT and GFC were handling breaches but there had been no announced decision of a policy change. I understand that a “policy” document has now been drafted and sent for approval. I understand however that on finalisation that it is intended to publish this policy in some form or make it available on request. I have requested the President to confirm.
The LDU was unhappy with the Information Sharing Protocol entered with SCDEA without any consultation with the Membership and voiced concerns about confidentiality with the then President. The Society have entered such arrangements with outsiders. I have called on the President to have the Law Society enter an “Information Sharing Protocol” with its own Members re these Policies which shape the way Complaints are or ought to be handled.
Previous to the coming into force of the 2007 Act in September 2008 a Reporter Manual was maintained by the Client Relations Office. I learned of it by chance but was not allowed a copy of it or to take a copy of it. No other LDU advisors were aware of it’s existence. Requests for the production of the Manuals were turned down in relation to a recent case. I was told a new Manual (a single manual) was being prepared and the old one was well out of date following the 2007 Act. However it is now some 4 years since the 2007 Act came in to force and 5 years since it was passed and its terms known but there is still no new Manual.
The SLCC issued their Policy Document in November 2010. I have asked the President to intervene to ensure the new Manual is completed without further delay and I have requested an assurance from him that its contents will be published for the benefit of the members and public alike. I fear the Law Society’s reputation would not survive an SLCC audit of Law Society procedures and its continued failure to prepare a new Manual.
Written by Ian C Ferguson
LDU Director and Partner with Glasgow legal firm Mitchells Roberton.