Annual Reports

Summary of the Annual Report 2006–2007

Introduction

This Annual Report necessarily looks back at events during the last year. On the opposite page to this introduction you will find a record of the performance of my office. Inside you will find my observations on performance of the Law Society of Scotland and the Faculty of Advocates as complaints handling bodies and my observations on likely future changes.

It has been a privilege to have been appointed as Scottish Legal Services Ombudsman. I have to credit my predecessor Linda Costelloe Baker and her predecessor Gary Watson. Both had clearly worked hard to establish a well respected and well managed office.

I have to add however that the role has been a frustrating one. This is because my remit is appellate, and limited to looking only at the way complaints have been handled — not at the complaints themselves. The remit confuses the public and some members of legal profession. An appellate body is simply not what people want or need for service complaints. People want a single body with stronger powers to determine complaints.

In addition I think people need a much more flexible and consumer focused system dealing with service complaints. A system too that offers mediation by independent people so more disputes can be settled by explanation and agreement rather than determination. And a system that enables learning to be drawn from complaints. I have been involved with many service industries as a specialist in complaint handling. The legal service industry stands out to me because so many complaints arise about what service will be provided, for what cost and within what timescale simply because of poor communication between providers and service users.

I am very pleased therefore that I can look forward and see change coming. The passing of the Legal Services and Legal Aid Bill 2007 will lead to introduction of a much needed new Scottish Legal Services Complaints Commission. I hope this will deal with complaints about legal services in a much more proportional and resolution focused fashion. Over the coming year my office of course will continue to vigorously examine standards of complaint handling. We all know every complaint deeply affects those involved. We will also however be working hard to ensure there is a smooth transition from current systems to the new Commission.

The Ombudsman’s Office

Budget

Staff numbers reduced from 6 full time Case Investigators to 5 full time and 1 part time Case Investigators with 1 part time Office Secretary throughout.
The office stayed within staff budget costs of £358,652 as we actually spent £270,985.48.
We also stayed within the budget of £145,105 for administration, IT and property costs as we spent only £137,188.28.

Thus total expenditure by the office was £408,173 and more simply shown expenditure on individual items was:

Staff costs: 66%.
Administration: 18%.
Accommodation: 13%.
IT: 3%.

Performance

The team:

Introduced a new Complaint Form helping people tell us why they were dissatisfied and importantly what they wanted.
Simplified the format of the Opinion published to assist all parties involved in complaints.
Reduced the number of active cases by 426.
Dealt with 549 cases.
Answered 90% of correspondence within 5 days.
Completed 471 Opinions.
Reduced the average time taken to complete an Opinion from 17 weeks to 5 weeks.

The Law Society of Scotland

The Law Society of Scotland regulates 12,126 solicitor members of whom 9,847 are practising within 1,250 firms. They also regulate the 21 licensed conveyancers within Scotland. In the year 2006/2007 the Law Society of Scotland received 3,623 complaints. Of these 3,245 were dealt with within the target period of 43 weeks.

During the year 2006/7 I received 392 complaints about the way the Law Society of Scotland handled complaints. 33% of people coming to me said they were dissatisfied with the Law Society’s processes, 24% said they were unhappy with the way evidence was used or interpreted, 20% said reasoning was inadequate, 11% complained of bias, 7% complained about delays and 5% complained about the limitations of the Law Society of Scotland’s powers.

Over the year 2006/7 I actually managed a total of 529 complaints about Law Society of Scotland handling. This figure is higher than numbers coming in as I also dealt with cases received 2005/6. Of the 529, I investigated 451 cases. A further 55 complaints were out of remit which includes 21 complaints that were out of time. 2 complaints were withdrawn. 9 cases were sent to the English Legal Services Ombudsman and I investigated 5 complaints on behalf of the English Legal Services Ombudsman.

When I investigate a case I publish an Opinion and confirm one of three outcomes: Satisfactory, Generally Satisfactory or Critical. The outcomes of investigations were:

Satisfactory: 57%
Generally Satisfactory: 15%
Critical: 28%

If a recommendation I make to the Law Society of Scotland or the Faculty of Advocates is not acted on, I can publish a Notice. I published two Notices in November 2006 after the Law Society of Scotland refused to comply with my recommendations. Since that date disagreements between myself and the Law Society of Scotland over appropriate resolution of cases have been resolved by discussion producing better outcomes for parties. The Law Society of Scotland has also been open to suggestions I have made where learning points have emerged.

In carrying out my investigations I have noted areas of Good Practice. These include:

Policies for diverse needs.
Openness of procedures.
Good record keeping.
Significant improvement in meeting case time target of 43 weeks.
Increasing willingness over the year to try to resolve difficult issues by dialogue.

Areas where I perceive improvement is required or which are causing difficulty include:

Lack of attention being given to expressions of dissatisfaction by complainers about firms’ complaint handling.
Limited resources within the Law Society of Scotland preventing resolution by explanation or conciliation.
Lack of clarity of Case Manager and Reporter roles.
Widely differing standards of investigation reports.
Over reliance on adversarial rather than inquisitorial procedures.
Confusion over what Inadequate Professional Service actually is.
Over reliance upon Codes of Conduct, Practice Rules and Practice Guidance that need modernisation.
Ready acceptance of solicitor file destruction.
Confusing redress decisions.
Reluctance to consider that a complaint about fees may actually be a complaint about service.
Problems in maintaining requisite confidentiality where complaints come from third parties, not direct clients.
Cumbersome decision making forums limiting the Law Society of Scotland’s ability to resolve complaints or discuss, formulate and promote policy changes.

The Faculty of Advocates

There are currently 759 members of the Faculty of Advocates of whom 458 are practising. The Faculty received 26 complaints in the Faculty year 2006/7. All were dealt with within the 43 week target period. I received 13 new complaints about the Faculty’s handling of complaints over the same period.

Over the year 2006/7 I dealt with 10 cases. 9 others were referred to the English Legal Services Ombudsman. Overall 42% of people said they were dissatisfied with the Faculty’s processes, 16% said they were unhappy with the way evidence was used or interpreted, 21% said reasoning was inadequate, 11% complained of bias, 5% complained about delays and 5% complained about the limitations of the Faculty’s powers.

The outcomes of investigations were:

Satisfactory: 64%
Generally Satisfactory: 18%
Critical: 88%

The Faculty broadly accepted all the recommendations made.

In carrying out my investigations I have noted areas of Good Practice. These include:

The Faculty of Advocates does consider advocates’ actions in the round and does not to seek to define complainers’ issues too tightly too early.
The Faculty can produce high quality investigation reports.

Areas where I perceive improvement is required or which are causing difficulty include:

The role of lay members requires clarification and they should be paid, as a minimum for sitting within Disciplinary boards.
There is a lack of lay representatives on investigation teams.
Changes are required to complaint systems to reflect implications of more direct access to advocates’ services.
And — surprisingly for a professional body that specialises in communicating opinions — much better reasoning about decisions could be provided to parties.

Thoughts about improving regulation of legal services within Scotland

Evidential tests & outcomes

The Faculty of Advocates tests evidence against the criminal hurdle to see if it proves beyond reasonable doubt that what is alleged occurred to see if any complaint is proved. The Law Society of Scotland uses the criminal test if complaints allege misconduct. However where allegations of service failings are made the civil test is used. This will be used too when the new category of Unsatisfactory Conduct applies after introduction of the new Commission. This inconsistency cannot be right. Moreover clearly it is harder to prove things against the criminal test so I question if the criminal test should be used within a system regulating professionals. Other regulators, particularly the GMC, are moving towards using the civil standard of proof, flexibly applied for all regulatory matters. I think this is good modern thinking. It encourages evolution of a shift in emphasis — from lengthy gathering of a great deal of evidence to prove misconduct against high criminal evidential standards allowing expulsion — towards earlier recognition that practice and conduct must be improved allied with appropriate outcomes that suit all parties.

Standards of conduct & practice

The Law Society of Scotland’s published Code of Conduct is weakened by lengthy definitions and exclusions. It should be clear, simple and flexible. The Law Society of Scotland’s Practice Rules and Guidelines are a patchwork, again sprinkled with confusing exclusions. They do not provide a clear framework of quality standards. Combined with the fact inadequate professional service is not well defined, the result is that lawyers are regulated against low standards — despite the fact individual firms independently often set higher standards. The Faculty of Advocates’ single Code of Conduct is comprehensive, but arguably too long. Both the Faculty of Advocates and the Law Society of Scotland will have to find ways of communicating the standards their members work to much more clearly.

Fee & service disputes

Legal service complaints often arise where fees are taken from client accounts without notice. In addition many complaints challenge not just service quality, but also fees charged. How then can complaints be currently judged without reference to fee charged? How can the current system that sends complaints about fees to “taxation” and complaints about service to the professional bodies be justified? Those who consider complaints must be more willing to recognise that where a client complains of high fees what they may actually be saying is that “I paid for a quality of service I did not receive”. And consumers need a modern system which allows fees to be challenged before they are collected. I am delighted therefore that the Scottish Executive is now working towards modernising the system for challenging legal fees. I hope it may fall within remit of the new Legal Services Complaints Commission so disputes that concern fees charged and service quality can be resolved together. I hope too changes to Practice Rules soon clarify that solicitors cannot remove fees from client accounts without clear, prior, explicit client agreement.

Jane Irvine
Scottish Legal Services Ombudsman
June 2007

Source: http://www.slso.org.uk/2006summary.shtml