Complaints against lawyers and legal firms: consultation analysis

1. The Consultation Exercise

1.1. Why did we consult?

The Scottish Government is committed to improving the framework for the regulation of legal services and complaints handling in Scotland. Esther Roberton's report of the independent review of the regulation of legal services^[1] made recommendations to Scottish Ministers on ways to reform and modernise the framework to protect consumer interests and promote a flourishing legal sector.

In the longer term, the report by Esther Roberton provides an opportunity to develop a new statutory framework for a modern, forward-looking legal services regulatory system for Scotland, with a complaints system adapted within that framework.

The Scottish Government response to that report^[2] set out that a public consultation, currently anticipated for later in 2021, will inform Ministers' views as to the shape and extent of reform.

As progress on wider reform continues, the Scottish Government has worked with the Law Society of Scotland and the Scottish Legal Complaints Commission, with the agreement of the Faculty of Advocates and Association of Commercial Attorneys, to develop proposals for potential change that could deliver shorter term improvements to the way in which complaints are handled within the current legislative framework.

Those discussions identified potential improvements that might be made to the complaints system. A public consultation which sought views on those proposals ran between 23 December 2020 and 20 February 2021.

1.2. What did the consultation ask?

The changes proposed seek to build on previous changes made in 2014^[3] and are based on 10 years' working knowledge of the current legislation and the experience of the current system.

The proposals on which views were sought are intended to have a cumulative effect in meeting the five objectives below, and which fall into three packages:

A. Changes to the process of complaint categorisation (to introduce a category of hybrid issue complaints);

B. Changes to the process of complaint investigation, reporting, determination and conclusion of cases (comprised of 6 separate amendments with the aim of creating a more efficient and proportionate complaints process); and

C. Changes to the rules for fee rebates (where a rebate of fees cannot be paid by the practitioner because they are unable to pay due to death, insolvency or cessation, the equivalent amount can be treated as an actual loss for the client/complainer, and so instead be paid out by the professional indemnity insurance scheme)

The consultation sought views on whether the proposals would meet the objectives of:

i. Reducing the overall time taken to deal with complaints.

ii. Achieving greater proportionality in the complaints system, allowing the SLCC to identify earlier in the process which issues are more likely to require investigation.

iii. Reducing the cost of the complaints system.

iv. Continuing to ensure an independent and fair system.

v. Providing greater flexibility in the system.

1.3. How did we consult?

Responses could be provided online through the Scottish Government's consultation hub, or submitted by post or email.