Case studies

Law Society of Scotland cases

These cases set out my findings about Law Society of Scotland handling of complaints of inadequate professional service made against firms of solicitors, or of complaints alleging professional misconduct by individual practitioners.

Case 1 — Time bar

The Law Society of Scotland expects complainers to lodge complaints within two years of knowing about the incident giving rise to the complaint. Some people object to this and some people also expect cases to be re-opened. I think this is a fair time bar policy. It is reasonable to expect complaints will be lodged promptly and setting a time limit is a clear and open approach that prevents investigations that are ineffective due to lack of evidence being available. I think too that an important part of any complaint process is how matters are closed. Complaints cannot run on for ever. This is not fair to either complainer, or firm or practitioner subject to complaint.

Mr A understood that his cousin had amended her will to leave him her house but the will that applied when she died did not include that amendment. He raised complaints with the Law Society and the Law Society carried out two investigations into the two complaints. Mr A had requested my office to consider handling of the two previous complaints and two previous Scottish Legal Services Ombudsmen had done so and found that the Law Society of Scotland had carried out their work appropriately and fairly. Mr A later requested that the Law Society of Scotland re-open his complaint. The Law Society of Scotland refused to re-open Mr A’s complaint because the matters he was raising were not new. He was trying to re-open a complaint that was closed. Moreover he raised issues arising from correspondence he had known about for over two years. Thus complaints based on this information were time-barred.

Mr A complained to the Ombudsman because he found the LSS inflexible with regard to their time limits. After this complaint had been accepted by my office two of my investigators met with Mr A at his request. It became apparent during that meeting that Mr A expected me to re-investigate his whole complaint. It had to be explained that I could not reconsider work carried out by my predecessors considering earlier investigations. Instead in a case where the Law Society of Scotland has refused to investigate a case, my powers are limited. In such cases I can only assess if the Law Society of Scotland has acted fairly and assess reasoning given for refusing to investigate.

In my Opinion I noted that the Case Manager at the Law Society had checked the previous investigations carried out by the Law Society of Scotland into the same matter. I also noted the Case Manager had clearly explained the Law Society of Scotland time limits to Mr A. I also noted that Mr A himself in fact confirmed he had received the correspondence that he based his new complaint over two years previously. I decided I was satisfied that the Law Society of Scotland had acted fairly when they refused to re-open Mr A’s complaint as I concluded Mr A was trying to re-open a complaint that had been finalized. Moreover he had not provided any extenuating circumstances as to why he had not brought the matter up sooner and the Law Society of Scotland had administered the enquiry well.

Case 2 — Time bar

In a similar time bar case I reached an opposite view. I recommended that the Law Society of Scotland should re-open the case. It was apparent the Law Society of Scotland had overlooked the fact that a reason for the delay in bringing the complaint was that the complainer had been seriously ill and had not known all the facts surrounding the issue.

Case 3 — Identification of issues

It is important that in any complaint system the actual complaint to be investigated is agreed. However many people say to me that they find the process of trying to agree issues with the Law Society frustrating. They say their simple complaints get put into complicated legal language and individual issues do not reflect their complaint. They say sense of their complaint has been lost. Mr H was one such person.

Mr H wrote to my office dissatisfied with the outcome in his case. When I investigated the file I noted 13 issues had been identified against the firm but none upheld as inadequate professional service (IPS). In addition one issue of possible misconduct had been identified, but no action had been taken on this either.

In his original complaint to the Law Society of Scotland, Mr H simply stated that he had been given poor advice regarding a loan transaction. I am always concerned when many issues are identified from what on the face of it is an apparently a simple complaint about a small piece of work. As noted, it is important that Case Managers within the Law Society of Scotland ensure they understand what complaints are made. However it seems to me the Law Society of Scotland sometimes wrongly translates a simple complaint into a multitude of complicated issues creating unnecessary confusion, inconvenience and work for both themselves and parties. I think too when this occurs there is a risk that the essence of the complaint is lost.

In my Opinion I noted Mr H had been involved when the issues were identified, but also that he had been told by the Case Manager not to be too concerned as the Reporter could identify new issues if necessary. I also noted that whilst Mr H had at first tried to amend the Case Manager’s drafting of issues in the end he appeared to have given up and the final list had not been signed off by him. Further that despite the Case Manager’s reassurances, the Reporter had adhered strictly to the list of issues forwarded to him and interpreted them narrowly clearly believing this to be correct.

I recommended the case be reconsidered from the start so Mr H was given opportunity to restate his complaint. The Law Society of Scotland did not agree to the recommendation saying they had followed normal procedure and Mr H had been involved with defining the issues.

I publicised the Law Society’s refusal to reconsider this case. I continue to regard agreement of issues as a problematic area. In my view there is currently justification for my intervening earlier if I receive complaints that the Law Society of Scotland is not defining issues as required. People are still writing to me saying “complicated and legalistic language used in correspondence was confusing”. I think some people cannot easily get issues stated simply as they wish. I think too solicitor firms are asked to respond to a long list of often repetitive issues.

Case 4 — Identification of issues

Sometimes though they do get it right!

Ms F complained about the solicitors acting for her in her divorce. She was particularly concerned about the financial details of the settlement and the way in which the solicitors had accounted to her for their work. The LSS considered Ms F’s complaint identifying and investigating ten inadequate professional service, IPS, issues. The Law Society of Scotland decided to take no further action in any of the ten issues.

When I reviewed the file I found that the Law Society of Scotland had handled Ms F’s complaint in a satisfactory manner. In particular I found that the Law Society of Scotland had identified where Ms F’s concerns lay as regards the settlement and had taken a constructive approach. Despite being a long list, the issues identified as forming the substance of complaints did reflect Ms F’s concerns. They had moreover been investigated and considered as might be expected and fully reasoned decisions provided on each. I appreciated how disappointing the outcome of the Law Society of Scotland work and my Opinion would be for Ms F. The case was difficult and potentially an alternate decision could have been reached. I concluded however that the Law Society of Scotland had done all that could reasonably be expected of it.

Case 5 — Administrative failing but fair handling of decision making

I always look at administration and handling of decision making. Just because administration fails, it does not always mean decision making is flawed.

Mr B’s company was involved in a civil litigation. The original complaint raised with the firm of solicitors concerned was that the solicitors breached an agreement which they had that they would only take on claims they were sure to win. Further the solicitors failed to arrest the defender’s bank account and failed to suggest adjudication as a means of resolving the dispute. Mr B also thought that the solicitors had failed to prepare adequately for a meeting with Counsel and had failed to obtain a copy of the contract between Messrs A and Messrs M and failed to lodge a list as a production for the proof. Mr B also complained that the solicitors allowed him to be cross examined for 18 hours without intervening and advised him to raise Court proceedings when the correct advice would have been to advise him to attempt adjudication. The Law Society of Scotland identified and investigated eight complaints of inadequate professional service, IPS, against the solicitors. The Client Relations Committee having considered all of the information before it determined to take no action on the issues raised.

Mr B complained to the Ombudsman because he felt the Law Society of Scotland had mishandled his complaint against the solicitors. He said he had it on paper that after the Reporter received the documentation it would take just over one month to resolve. Two Case Managers, two Reporters, six months on and in his own view he had been given no good answers. Mr B also thought the second Reporter made a lot of assumptions. For example, the Reporter stated Messrs A was a large firm and financially sound so freezing their bank account for such a small sum would have had no effect. When he informed the Reporter that they were in fact a small firm and that this was their first large contract, the Reporter awarded him £400 but the Committee had overruled that finding.

As noted, I look at two distinct aspects of work by the Law Society of Scotland — quality of administration and quality of decision making before deciding if, overall, handling is Satisfactory, Generally Satisfactory or I am Critical of it. In this case I considered there had been a failing in administration, but crucially handling of decision making had been good so I classified handling overall as Generally Satisfactory.

As regards administration, I was critical of the delay at the Report stage of this enquiry. Mr B had commented on this delay when he complained to my office and when I investigated the file I calculated 28 weeks of avoidable delay during the Reporter stage of the enquiry. Within my Opinion, I criticized this. It is essential in any complaint process that responses are provided as promptly as possible. Generally disputes fester and become worse as timetables expand.

I accepted that the Case Managers in this case did their best to keep the investigation on target. I noted also the Law Society suffers problems trying to find Reporters with suitable expertise in some cases — particularly Reporters with litigation experience. Quite clearly however Reporters who receive a low honorarium may place other commitments ahead of Law Society of Scotland work and I must judge the handling by the Law Society of Scotland. Just because the Law Society of Scotland persists in using Reporters who are only paid a low honorarium they cannot be excused from their responsibility to ensure that cases run to time. Nor can the Law Society of Scotland be excused from their responsibility to ensure Reporters are aware of the importance of time limits. For the Law Society of Scotland complaint system to work well the Reporter system has to meet modern requirements of efficiency, and delays like that in this case should not occur. The Law Society of Scotland needs to have robust procedures in place to ensure that those investigating complaints do so promptly.

I have seen a number of similar cases and in this as in those other cases I recommended that the Law Society of Scotland pay Mr B compensation for the inconvenience delay caused him and his costs in bringing this case to my office. Had I power to do so I may also have recommended similar payments to the solicitors concerned as solicitors are often equally inconvenienced by delays in dealing with complaints. I cannot however do this, but at least in this case the Law Society of Scotland did pay compensation and costs as recommended to Mr B.

As regards handling of decision making however I was generally satisfied that the Law Society of Scotland had carried out a fair and thorough investigation. The file I examined showed that the Reporter and Committee had very carefully considered the extent of evidence, sufficiency of evidence, and what it showed as regards all issues. In such circumstances I cannot reasonably recommend reconsideration of a case. The Law Society of Scotland has in simple terms done all that could be expected of it. In Mr B’s case therefore I found handling of decision making reasonable.

Case 6 — Professional judgment and client instructions

Since 2005 solicitors have been required to agree letters of engagement with their clients. These should set out fees and work to be undertaken for such fees. Hopefully over the longer term this will mean clients know what to expect by way of services and what they will have to pay for services. At present this is often not the case and it seems to me sometimes the Law Society expects clients to instruct about matters that might more reasonably be for solicitor firms to advise on. Conversely some clients think solicitors must take specific actions when often solicitors can exercise their discretion. Indeed selecting the best action to take is part of the skill of a solicitor.

Mrs D wrote to me to say she had not been able to sell her house when she wanted because, having bought it with another person, the way it was conveyed to her and the other person meant both had to agree to sell. No one party could trigger sale. The Law Society said the complaint failed as Mrs D had not instructed the solicitors about the type of title she wanted. In my Opinion I said that I found it odd on occasion that the LSS seems to assume clients should instruct on what are often technical points where one may more reasonably expect solicitors would take the lead offering options to clients. They, the solicitors, are at base being paid for their expertise in complex areas. I commented in particular that the Law Society of Scotland needs to take care to ensure they are not rejecting genuine complaints on grounds that “no instructions were given” in instances where maybe in fact the onus lay with solicitors to raise options with clients. Then clients may have been able to give more considered instructions. I often make such comments or observations as it is important learning points are drawn from my Opinions.

Mrs D also said that in a related court case the solicitors had not raised all relevant arguments. The Law Society found however that the solicitor had exercised professional judgment about which arguments may best succeed. I found this decision had been reasonably reached.

Case 7 — Failure in handling of decision making

Mrs R complained that the Law Society of Scotland had overlooked all the evidence she had raised. She said the Committee had also overturned the Reporter’s findings and so must be made up of biased solicitors.

Unfortunately adverse publicity over the last few years does mean people are suspicious of bias by the Law Society of Scotland’s decision makers. In cases I investigate in fact it is clear from the file that a mix of solicitors and non solicitors have decided cases. Often too there is evidence of careful consideration of all issues.

In Mrs R’s case however it seemed to me the Law Society of Scotland had overlooked her evidence. The Reporter’s report focussed on evidence within the solicitor’s files. I also considered a relevant element of the Code of Practice had been overlooked. I recommended that the Law Society of Scotland reconsider elements of the complaint instructing a new Reporter and pay Mrs R compensation for inconvenience she had suffered and costs bringing her complaint to me. It is most important both sides in any complaint see that their arguments have been considered. My recommendations were accepted in full.

Case 8 — Confidentiality

Mr K complained about actings of his wife’s solicitor, Ms R, during their divorce. The Law Society agreed to investigate the complaints, but treated Mr K as a third party complainer. Thus they agreed to investigate only allegations that inferred misconduct. As Ms R had not been providing a service to Mr K there could be no complaints of inadequate professional service. The Law Society of Scotland also provided Mr K with a copy of their leaflet on third party complaints and told Mr K he would not receive a copy of the Reporter’s report.

All this was as I would expect. However when I read on through the Law Society of Scotland’s file, I saw that in fact they had wrongly sent out the Reporter’s report which contained information that should not have been revealed about actings of Ms R on instructions of Mrs K and I noted the Committee reasoning similarly revealed confidential information.

In my Opinion I found Mr K had received a satisfactory service from the Law Society of Scotland. I was however critical about release of sensitive and confidential information. This should not occur and I continue to be vigilant about the way the Law Society of Scotland handles information. All complainers have a right to fully reasoned responses, but care has to be taken in third party cases that the rights other clients have to have their cases kept confidential are not overlooked.

Case 9 — Failure to assess appropriate redress

Mr M had sold and bought property. He believed his solicitors had made a mistake and then refused to absorb the costs of that mistake. Solicitors acted for him in the conveyancing and estate agents handled the marketing. The solicitors had informed Mr M that the Estate Agent’s fees were paid. Months later the solicitors apologised for retaining funds belonging to Mr M and months later then told him they had forgotten to pay the agents. They expected him to pay that money.

The Law Society of Scotland considered Mr M’s complaint and identified, investigated and upheld one inadequate professional service issue with compensation for clear IPS.

When I reviewed the file I found that the Law Society of Scotland had handled Mr M’s complaint in a generally satisfactory manner. Administration had been fair and handling decision making generally fair also. The file showed relevant evidence had been taken into account and carefully reasoned decisions provided.

I was however concerned that the LSS had not given appropriate consideration to the full range of sanctions available to it in these circumstances. In every case where there is a finding of inadequate professional service the LSS should consider if fees should be rebated. I also consider whether the Law Society of Scotland has properly identified what fees were and whether they have or have not been paid. This is often a problematic area as the Law Society of Scotland often does not ascertain this at early date and generally never considers scale of fees. In this case no consideration at all had been given to fee rebate. I recommended therefore that the LSS should reconsider whether rebating fees was appropriate in the specific circumstances where IPS had been identified.

The Law Society of Scotland accepted my recommendation and ultimately after reconsideration 50% of fees paid were rebated in addition to compensation being paid.

Case 10 — Failure to consider all options for redress

Mr W complained about the outcome in his case. Although the Law Society of Scotland had found the solicitors had provided an inadequate professional service in failing to check title to his house properly, and had ordered payment of compensation; he considered the title defect overlooked was so significant he was saddled with a property that he could never sell.

When I investigated the file I found the Law Society of Scotland had requested Mr W “vouch” his loss. It seemed to me Mr W had not done this as he was not clear what he was being asked to do. The issue of how significantly the title defect affected saleability and value had not therefore been properly considered. Moreover whilst compensation had been awarded towards the maximum sum that may not cover the loss suffered if the property was un-saleable, or only capable of sale at significantly discounted sum.

I therefore recommended the Law Society of Scotland reconsider the appropriate redress considering not only advising Mr W more carefully what “vouching” his loss might entail, but also if they should exercise their powers to order the solicitors to rectify their failure in another way or do something else in Mr W’s interest to make up for their failure. In other words use full powers to provide Mr W with redress, not just consider fee rebate or payment of compensation. The Law Society of Scotland accepted my recommendation. Mr W also received an immediate payment of compensation from the Law Society of Scotland for the inconvenience of not having his complaint properly considered at first time of asking and costs of bringing his complaint to my office reimbursed, which I had also recommended.

Case 11 — Payment of compensation

Several people have written to me over the past year stating they have not received payment from the solicitors despite a finding by the Law Society of Scotland that they should receive compensation. Others have stated compensation has not been paid by the Law Society themselves. I have chased the Law Society of Scotland on every occasion. I have also urged the Law Society of Scotland to have better follow up procedures in place. By response the Law Society of Scotland has confirmed it will adjust procedures to check if firms make payments and to keep files open until they themselves pay compensation. The Law Society of Scotland is also actively considering how to ensure partners of former firms pay compensation due from their former firms promptly and effectively.

Case 12 — Payment of compensation

Mr G wrote to this Office to complain about the outcome of complaints that had been upheld by the Law Society. Mr G had been the beneficiary of a deceased’s estate however he had concerns about the way the solicitor and one of the executors, who was also a beneficiary, had handled the administration of the estate. Some of the complaints that were made to the Law Society were upheld however the compensation for the inadequate professional service was, by order of the Law Society, to be paid to the Executry; this would have meant the Executor would also have benefited from the compensation award. Mr G felt that as he had made the complaint the compensation should have been paid to him. This was the only issue of concern raised by the complainant.

While I appreciated Mr G’s concern I explained to him that under the current legislation the Law Society of Scotland must pay any compensation awarded to the client and that in Executry cases the client is the Executor and the Executry. Mr G did feel frustrated by this, however when this was fully explained he chose not to pursue his complaint further with this Office. I therefore simply highlighted to the Law Society of Scotland, as I often do, the importance of providing fully reasoned decisions. Had this decision been better explained then in my view referral to my office could have been avoided.

Case 13 — Administrative failures and failure to pay compensation

Mrs McC had instructed a firm of Scottish solicitors in July 2004 to act for her in a conveyancing matter. Mrs McC was concerned that she has not received a letter of engagement or a copy of the offer letter in connection with her purchase. She had had problems with the solicitors’ communication regarding the funds and the identification required for purchasing the house and subsequently had to employ new solicitors to complete the transaction.

The Law Society of Scotland investigated six complaints of inadequate professional service against the solicitors and decided to uphold all of the complaints. The Law Society of Scotland directed the solicitors to pay Mrs McC £1,000 compensation and to refund the fees paid. The Law Society also decided that a new complaint should be intimated regarding possible professional misconduct.

Mrs McC complained to the Ombudsman because she had received the Law Society’s decision on 29 June 2005 and although she had made numerous telephone calls to the Case Manager she had not received the compensation awarded to her. She later contacted the Ombudsman’s office to say that the Case Manager confirmed her case was going to a tribunal and her compensation should be paid out in February 2006 but by March 2006 she had still not received the compensation promised.

In my Opinion, although I was satisfied with the manner of decision reached by the Law Society of Scotland in respect of Mrs McC’s complaints I did identify administrative areas of concern. Specifically a lack of communication at the report stage, and a delay in implementing a notice on the solicitors for their failure to reply to Mrs McC’s complaints. This latter administrative failure resulted in a period of almost 6 months when no action was taken by the Law Society of Scotland to ensure that the solicitors complied with the determination to pay Mrs McC her compensation and refund the fees. The solicitors’ failure to comply with the Law Society’s rules and regulations resulted in Mrs McC’s case subsequently having to go to the Scottish Solicitors Discipline Tribunal. Unfortunately this meant that the whole process would take even longer to complete and I concluded that this complaint could have moved to the tribunal stage more quickly had the Law Society followed up its correspondence with the solicitors and served a notice more promptly.

The compensation due to Mrs McC was not received until 10 months after the Law Society made its determination. I was therefore critical of the Law Society’s investigation and its failure to use its powers to ensure that the solicitors had complied with its determination. I recommended that the Law Society should pay compensation for the loss caused to Mrs McC due to payment delays that were identified because of the poor handling of the case, the fact Mrs McC had to regularly chase for progress and for the general inconvenience caused to Mrs McC. I also recommended that the Law Society reimburse Mrs McC costs of £15 for making her complaint to the Ombudsman.

The Law Society accepted my recommendations and assured me that their new case management system would ensure that cases were brought to Scottish Solicitors’ Discipline Tribunal as quickly as possible following the expiry of the 21 day deadline solicitors have to appeal the decision.

Source: http://www.slso.org.uk/cases-lawsoc.shtml