Association of Construction Attorneys: revised scheme

11.0 Complaints Procedure

11.1 Introduction

11.1.1 The Association recognises that there may be complaints by clients and non-clients regarding the professional services provided by, and the conduct of, Attorneys.

11.1.2 The Association encourages Attorneys to resolve complaints directly with the person complaining wherever possible. However, in some instances, resolution will not be possible and such persons must be signposted, at the earliest opportunity, to the SLCC, as the gateway for formal complaints.

11.1.3 The Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act) applies in respect of any service or conduct complaints made about Attorneys, who are defined in Section 46 as “practitioners”.

11.1.4 The Association is named in the 2007 Act as a “Relevant Professional Organisation”, which has the responsibility of dealing with complaints about the conduct of Construction Attorneys.

11.1.5 The Association is also subject to Handling Complaints, raised under Section 23 of the 2007 Act, which relates to how the Association deals with conduct complaints.

11.1.6 Where, under Part 1 of the 2007 Act, the Scottish Legal Complaints Commission (‘SLCC’) has decided that a complaint about the conduct of an Attorney should be accepted for investigation, the SLCC will remit the complaint to the Association for it to deal with under its conduct complaints procedures.

11.1.7 Where a complaint has elements of both conduct and service, the SLCC and the Association will liaise and agree which investigation should proceed first.

11.1.8 The Association has processes and policies in place to investigate and determine conduct complaints. These processes are overseen by the SLCC, as part of its statutory monitoring function under Section 36 of the 2007 Act.

11.1.9 The Association recognises that there may be complaints by clients, members of the public and other Attorneys of the Association against Attorneys in relation to their professional activities.

11.1.10 In addition to the complaints procedure outlined in this scheme, the Association will comply with the statutory requirements of the Legal Profession and Legal Aid (Scotland) Act 2007.

11.1.11 All Attorneys are under a duty to represent the client competently and diligently with the exercise of reasonable care and skill, and to keep the client properly informed; Rule 10.10.1. Attorneys are required to deal properly and promptly with complaints which allege breach of the duty in Rule 10.10.1; Rule 10.10.2.

11.1.12 Where a complaint has not been resolved to the client's reasonable satisfaction or has been referred to the Association by the SLCC in respect of a matter of conduct it will be dealt with in accordance with the Association’s Complaints Procedure, set out below.

11.2 Complaints Board

11.2.1 General.

11.2.2 The Complaints Board will investigate complaints against Attorneys. The Chairman of the Association will decide on the persons who are to sit on the Complaints Board. The Complaints Board shall comprise of a minimum of six persons consisting of Members/Fellows of the Association and Non-Members of the Association.

11.2.3 Members/Fellows will only constitute a maximum of 50% of the membership of the Complaints Board. The Complaints Board will appoint a Head of the Complaints Board from within the members of the Complaints Board. If agreement cannot be reached the Head of the Complaints Board will be appointed by the Chairman of the Association. The Head of the Complaints Board will carry out the initial investigation of any complaint against an Attorney. A Complaints Panel may also be formed to deal with the complaint. The Panel for any particular complaint shall be decided by the Head of the Complaints Board and shall consist of three persons of whom not more than two shall be Member/Fellows of the Association.

11.2.4 The role of the Complaints Board is to investigate complaints of professional misconduct against Attorneys and, where appropriate, to discipline Attorneys.

11.2.5 The Head of the Complaints Board has power to take the steps set out in Rule 11.3.8.

11.2.6 Any reference to the Complaints Board or investigation by it is without prejudice to any other rights a complainant may have.

11.2.7 The Complaints Board may consider complaints about the professional activities of Attorneys from clients, past clients, potential clients, members of the public or from other Attorneys.

11.3 Complaint procedure

11.3.1 Many complaints will first be made by the complainant direct to the Attorney concerned. The Attorney shall make every effort to resolve any such complaint. See Code of Practice Section 10.0.

11.3.2 Where the Attorney cannot resolve a complaint to the reasonable satisfaction of the complainant the Attorney is under a duty to remind the complainant of the existence of the Code of Practice and of this Complaints Procedure, and of the complainant’s right to contact the Scottish Legal Complaints Commission (‘SLCC’) in the first instance.

11.3.3 When the Association receives a written complaint which appears to relate to allegations of professional misconduct or inadequate professional services, it will be referred to the Head of the Complaints Board who may:-

• make further enquires which he may consider appropriate
• if the complainant has not already done so, advise the complainant of his or her right to contact the SLCC in the first instance
• refer the complaint to the SLCC
• take such further steps as may be necessary.

11.3.3 A Where the SLCC refers a complaint to the Association for consideration, the Head of the Complaints Board may:-

• appoint a Panel to enquire into the complaint
• if required appoint an Investigating Officer to act on his/her behalf
• take such further steps as may be necessary.

11.3.4 Where the SLCC refers a complaint to the Association for consideration, the Head of the Complaints Board shall write to the Attorney:-

a) informing him of the allegation or information which suggests he may be liable for disciplinary action;

b) providing him with copies of any relevant documentation received or obtained by the Head of the Complains Board;

c) inviting him to provide a written response within a period specified by the Head of the Complaints Board, which will be no more than 28 days from the date of the letter;

d) advising him that any response will be disclosed to the maker of the allegation (if any) for comment.

11.3.5 Having considered any written representation provided by the Attorney and having made further enquiries he considers necessary (including seeking comments on any representations) the Head of the Complaints Board shall:-

a) decide whether there is a realistic prospect of establishing that the Attorney is liable to disciplinary action; and

b) decide what further action, if any, should be taken by the Association

11.3.6 Where the Head of the Complaints Board has determined that there is no realistic prospect of establishing that an Attorney is liable to disciplinary action he shall:-

a) in cases where representations have been sought, write to the Attorney to notify him of the decision;

b) advise the Attorney that the allegation or information received will be held by the Association and may be reconsidered by the Head of the Complaints Board on receipt of a fresh allegation or fresh information about the Attorney;

c) write to any maker of the allegation to notify him of the decision.

11.3.7 Where the Head of the Complaints Board has determined that there is a realistic prospect of establishing that an Attorney is liable for disciplinary action, he shall:-

a) decide, having regard to the seriousness of the allegation or information and the public interest, whether or not the Association will take further action in the matter;

b) inform the Attorney and any maker of the allegation of the decision and his reasons.

11.3.8 Where the Head of the Complaints Board has determined that the Association should take further action he shall take one or more of the steps set out below:-

a) serve the Attorney with a Fixed Penalty Notice;

b) with the written agreement of the Attorney make a Consent Order;

c) refer the matter to a Complaints Panel for consideration under section 11.6 (interim measures);

d) refer the matter to a Complaints Panel for consideration under these Rules (discipline).

11.4 Fixed Penalty Notices

11.4.1 A Fixed Penalty Notice shall be in accordance with the Procedures Note/Sentencing Policy approved by the Complaints Board of the Association of Construction Attorneys.

11.5 Consent Orders

11.5.1 A Consent Order shall consist of terms requiring the Attorney to:-

a) take or desist from taking certain actions within a specified period of time;

b) if appropriate, pay a fine in accordance with the provisions of the published sentencing policy;

c) if appropriate, pay costs to the Association in accordance with published scales.

11.5.2 The Head of the Complaints Board may invite the Attorney to provide their written agreement to a Consent Order within a specified period of time.

11.5.3 The Head of the Complaints Board may refer the Attorney to a Complaints Panel where:-

a) the Attorney has not provided their written consent to a Consent Order within the time specified by the Head of the Complaints Board;

b) any of the terms of the Consent Order have been breached.

11.6 Interim measures

11.6.1 Where the Head of the Complaints Board refers the matter to the Complaints Panel for a hearing to consider interim measures, or where the Complaints Panel has directed a review of interim measures, the Head of the Complaints Board shall serve notice of the hearing by special post on the Attorney with reasonable notice.

11.6.2 The hearing may be in the form of a conference call.

11.6.3 The hearing shall be conducted in accordance with the provisions of these Rules save that the provisions may be modified by the Complaints Panel in the interests of justice. The procedure will usually consist of the following stages:-

a) the Head of the Complaints Board (or if appointed an Investigating Officer) may outline the allegation or information received by the Association and address the Complaints Panel as to why it might be necessary to impose (or renew) interim measures, and may adduce relevant evidence;

b) the Attorney may present his case in relation to the imposition of interim measures and may adduce relevant evidence;

c) The Complaints Panel may put questions to any witnesses including the Attorney if he gives evidence;

d) The Complaints Panel shall consider its decision in the absence of the parties and announce its decision and give reasons.

11.6.4 No person shall give oral evidence at the hearing unless the Complaints Panel considers such evidence is relevant to enable it to discharge its functions.

11.6.5 If the Complaints Panel is satisfied that there is credible evidence demonstrating the Attorney may be liable for disciplinary action and it is necessary having regard to the seriousness of the allegation or information and the public interest and the interests of the Attorney, the Panel may:-

a) take no action or conclude any interim measures;

b) suspend the Attorney’s registration with the Association, with immediate effect, for a period not exceeding twelve months;

c) require the Attorney to refrain from practising all or part of the role of an Attorney for a period not exceeding twelve months;

d) direct that shortly before the end of the period of interim measures (if not previously concluded) the matter shall be referred back to a Complaints Panel for a review.

11.6.6 Where there has been a change of circumstances, on the application of the Attorney, or of his own volition, the Head of the Complaints Board may refer a case back for review of an interim suspension by a Complaints Panel.

11.6.7 The Complaints Panel shall have power to conclude interim measures in any case where they are determining disciplinary action.

11.7 Cancellation

11.7.1 The Head of the Complaints Board may cancel a referral to the Complaints Panel in the following circumstances:-

a) the death of an Attorney;

b) very exceptionally on the application of an Attorney who wishes to resign their registration with the Association (only applicable where the resignation is deemed sufficient penalty in respect of the complaint received);

c) in circumstances where there is no longer a realistic prospect of establishing that the member is liable for disciplinary action;

d) in other circumstances as determined by the Head of the Complaints Board, having regard to the seriousness of the allegation or information and the public interest.

11.8 Notices

11.8.1 When a hearing is required to consider a matter under the provisions of these Rules, the Head of the Complaints Board shall fix a date, place and time for the hearing and, in correspondence sent by special post, shall:-

a) set out the charge or decision subject to review or appeal;

b) give the Attorney notice of the hearing which shall not, except in the case of interim measures hearings under paragraph 11.6.1, be less than 28 days from the date of the letter;

c) inform him of the date, time and place of the hearing;

d) provide him with a copy of these Rules;

e) send him a listing questionnaire relating to the hearing containing provision for the Attorney to make admissions in response to the charge and in Appeal Panel cases requiring him to indicate within 7 days whether he wishes to request an oral hearing which he could then attend.

11.9 Public Hearings

11.9.1 Complaints Panels shall usually sit in public except when considering interim measures.

11.9.2 The Attorney who may be liable for disciplinary action or the Head of the Complaints Board may request that the hearing in whole or in part shall be held in private. The Panel may only grant such a request in whole or in part where it considers that exceptional circumstances apply which justify that decision.

11.10 Legal Assessor

11.10.1 Complaints Panel may be advised by a suitably qualified and experienced legal assessor.

11.10.2 The legal assessor may advise a Panel on the following matters:-

a) any question of law as to evidence or procedure;

b) any other matter arising in connection with these rules including any relevant associated guidance issued by the Association;

c) the drafting of any written decision and the structuring of the Panel’s reasons.

11.10.3 Where a legal assessor advises a Panel, he shall do so in the presence of the parties (if present) or, if the advice is tendered after the Panel has retired for any reason, the parties shall be informed as to what advice has been given prior to the Panel reaching any decision.

11.11 Proceeding in absence of the Attorney

11.11.1 Where the Attorney whose case is being considered by a Panel is not present and is not represented the Panel may proceed in the absence of the Attorney if they are satisfied that notification under section 11.8 has been properly given.

11.12 Oral Hearings and Representation

11.12.1 Where the Attorney has requested an oral hearing before the Complaints Panel the matter shall be considered as set out below and an oral hearing should be granted where it is considered this will assist in fairly dealing with the matter:.

11.12.2 Where there is to be an oral hearing the Attorney has the right to appear in person before the Complaints Panel and may, if he so wishes, be represented by a lawyer, a representative from any professional organisation of which he is a member or, at the discretion of the Complaints Panel, any other Attorney of his choice. A representative may not give evidence at the hearing.

11.13 Voting

11.13.1 Where the Complaints Panel is required to decide an issue;-

a) the matter shall be put to a vote;

b) no panel member shall be allowed to abstain;

c) the matter shall be decided by a simple majority.

11.14 Costs

11.15 The Complaints Panel may make such order for costs against the Attorney or the Association as it considers fair and reasonable, subject to the requirement that an estimate of costs incurred by a party shall be served on the other parties at least 24 hours before the hearing.

11.16 Adjournments

11.17 The Head of the Complaints Board, (or Complaints Panel after the commencement of a hearing), may at any stage adjourn a hearing. In such circumstances the parties shall be informed in writing, by special post, of the date, time and place of a resumed hearing.

11.18 If for any reason any member of the Complaints Panel is during the course of the hearing unable to continue to attend, or attend the adjourned hearing, the hearing may be re-heard by a new Panel appointed by the Head of the Complaints Board.

11.19 Panel Decisions

11.19.1 All Complaints Panel decisions under these Rules shall be notified by the Association to the Attorney and the complainer by special post within 14 days of the conclusion of hearing.

11.20 Publication and Records

11.20.1 Publication of all decisions under these Rules shall be at the discretion of the Complaints Panel.

11.20.2 All Complaints Panel decisions under these Rules shall be recorded on the Attorney’s record.

11.21 Complaints Panel Procedures

11.21.1 At any hearing before a Complaints Panel:-

a) the rules on the admissibility of evidence that apply in civil proceedings (Scotland) shall usually apply, although the Complaints Panel may receive relevant evidence which would not be admissible if it is satisfied that admission of that evidence is necessary to ensure a fair hearing;

b) where the Attorney has been convicted of a criminal offence a certified copy of the conviction shall be admissible as proof of that conviction;

c) the parties shall be permitted to call witnesses to give oral evidence and the Complaints Panel may request the attendance of witnesses or the provision of documents;

d) any witness called shall first be examined by the party calling him, may be cross- examined by the other parties or their representatives, may be re-examined and may be asked questions by the Complaints Panel.

11.21.2 Save where the Complaints Panel decides otherwise the order of proceedings before the Complaints Panel shall be as follows:-

a) The Panel Chairman shall read out the charge;

b) The Chairman asks the Attorney or his representative (if present) if any of the matters are admitted;

c) The Chairman shall invite the Presenting Officer to present the case against the Attorney and to adduce relevant evidence in support of that case;

d) At the conclusion of the case against the Attorney the Chairman shall invite the Attorney or his representative (if present) to address the Complaints Panel and to adduce relevant evidence in relation to the charge;

e) If the Attorney or his representative has addressed the Complaints Panel the Chairman shall then invite the Investigating Officer (who may be the Head of the Complaints Board) to make his closing address;

f) The Chairman shall invite the Attorney or his representative (if present) to make his closing address;

g) If necessary, the Complaints Panel shall then retire to make its findings as to the facts and whether the Attorney is liable to disciplinary action in the absence of the parties and before doing so may seek legal advice from its Legal Assessor;

h) The Chairman shall then announce the Complaints Panel’s findings as to the facts and whether the Attorney is liable to disciplinary action, together with the Panel’s reasons, before those parties who are present;

i) The Chairman shall then invite the parties present to address the Complaints Panel as to penalty (where the charge has been found proved and as to costs, and to adduce evidence as to any previous disciplinary record held by the Association and any mitigation;

j) The Complaints Panel shall then retire to make its decision in relation to any penalty to be imposed and costs in the absence of the parties and before doing so may seek legal advice from its Legal Assessor:

k) The Chairman shall then announce the Complaints Panel’s decision and reasons as to penalty and its decision as to costs before those parties who are present.

11.22 Burden of Proof

11.22.1 The burden of proof shall be on the Association and where the Complaints Panel must determine issues of fact the standard of proof shall be on the balance of probabilities.

11.23 Penalties

11.23.1 The penalties available to the Complaints Panel are:-

a) to caution the Attorney against repeating the conduct or action which is found to have constituted the contravention;

b) to reprimand or severely reprimand the Attorney;

c) to require the Attorney to give one or more undertakings as to future conduct;

d) to fine the Attorney;

e) to instruct compensation be paid:

f) to impose conditions on the Attorney’s continued registration of the Association;

g) to expel the Attorney from the Association.

11.24 Decisions of the Complaints Panel

11.24.1 All decisions of the Complaints Panel shall usually take immediate effect unless the Panel directs otherwise. In the event of an appeal by the Attorney no fine shall become payable until the determination of the Appeal but all other penalties shall continue pending determination of the Appeal.

11.25 Appeals

11.25.1 An Attorney or a complainer may appeal to the Appeal Panel against:-

a) a decision of the Fixed Penalty Reviewer (Head of the Complaints Board);

b) a decision of the Complaints Panel.

11.26 Appeals Procedure

11.26.1 Any appeal or requirement for review by the Association shall be lodged with the Chairman of the Association within 28 days of service of notification of the decision to be appealed or reviewed. If the complaint is concerning the Chairman of the Association the matter will be dealt with by the Vice Chairman or Secretary of the Association.

11.26.2 The Appeal Panel shall be decided by the Head of the Complaints Board and shall consist of three persons of whom not more than two shall be Member/Fellows of the Association. No person that sat as a member of the initial Complaints Panel may sit on the Appeal Panel.

11.26.3 An appeal shall only be accepted by the Association if it is:-

a) in writing in the form prescribed by the Association from time to time;

b) specifies the grounds relied on in support of the appeal.

11.26.4 An appellant may withdraw his notice of appeal at any stage. In such circumstances the Appeal Panel may make an award for costs.

11.26.5 No appeal shall be allowed to proceed to the Appeal Panel without the permission of the Chairman or Vice Chairman of the Association.

11.26.6 An Appeal Panel shall review the decision of the Complaints Panel or Fixed Penalty Reviewer having regard to:-

a) the evidence presented to the Complaints Panel or Fixed Penalty Reviewer;

b) any representations made to the Complaints Panel or Fixed Penalty Reviewer if available in written form, including any transcript of any hearing;

c) the appellant’s grounds of appeal:

d) any representations which the appellant or the Head of the Complaints Board may wish to make to the Appeal Panel regarding the findings and/or penalties imposed by the Complaints Panel or Fixed Penalty Reviewer.

11.26.7 The parties may not provide new evidence to the Appeal Panel without leave of the Panel.

11.26.8 The burden shall be on the Appellant to satisfy the Appeal Panel that the order being appealed was wrong.

11.26.9 Where the Attorney has been granted an oral hearing before the Appeal Panel, except where the Panel decides otherwise, the order of proceedings before the Appeal Panel shall be as follows:

a) The Panel shall hear and consider any preliminary legal arguments;

b) The Investigation Officer shall outline the decision which is the subject of the Appeal and direct the Panel to any relevant evidence including transcripts of any hearing;

c) If present, the Appellant may address the Panel on their grounds for appeal;

d) The Panel may allow either party present an opportunity to make a closing address;

e) The Panel may then retire to make its decision in relation to the Appeal and in relation to costs in the absence of the parties, and before doing so may seek legal advice from its Legal Assessor;

f) the Chairman shall announce the Appeal Panel’s decision and reasons and its decision as to costs before those parties who are present.

11.26.10 Only where the Panel considers that the decision of the Complaints Panel or Fixed Penalty Reviewer was wrong may the Panel allow the appeal.

11.26.11 Where the Appeal Panel allow the appeal they may :-

a) vary the Complaints Panel’s finding that the Attorney was liable to disciplinary action; and/or

b) vary the penalty imposed by the Complaints Panel or Fixed Penalty Reviewer to one of greater or lesser severity;

c) refer the matter back to a Complaints Panel or Fixed Penalty Reviewer for a new hearing or consideration.

11.26.12 All decisions of an Appeal Panel shall take effect from the date specified by the Appeal Panel.

11.27 Review of the Complaints Procedure

11.27.1 The Complaints Board shall report annually to the Association on complaints received and their outcome.

11.27.2 The Association shall review on an annual basis the operation of the Complaints/Disciplinary Procedures.

11.28 Role of the Scottish Legal Complaints Commission

11.28.1 Where the matter is a service matter the SLCC will determine whether investigation is required and, if the complaint is investigated and upheld, it will inform the practitioner of its decision. The SLCC will be responsible for any sanctions and the implementation of any recommendations following a complaint. In the event that an Attorney does not comply with the recommendations of the SLCC and the SLCC refers the case to the Association, as a conduct complaint, the Association will consider disciplinary action under its Complaints Procedure as noted above.

11.28.2 The SLCC will investigate the Association’s handling of a complaint from a complainant where the SLCC considers that is a matter of conduct and it has referred the matter to the Association to deal with under its Complaints Procedure. In such an instance, the Association will co-operate fully with the Scottish Legal Complaints Commission (SLCC) and will act on any recommendation by the SLCC within three months of receiving that recommendation.

11.29 Where an issue of conduct has been referred to the Association by the SLCC, the Association will notify the SLCC of its decision as regards the matter.