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APPENDIX A
Reforms made by the legal professional bodies
in Scotland since the publication of the Justice 1
Committee report
1. Both legal professional bodies have introduced
reforms to their complaints procedures since the
Committee's report in November 2002. References in brackets
are to the paragraphs in the Justice 1 Committee report
containing the relevant recommendation.
Law Society of Scotland
2. Under its new powers in The Council of the Law
Society of Scotland Act 2003, the Council has delegated
decision-making on complaints from its Council to its
Committees (paragraph 112).
3. Since September 2003, the Society has implemented a
series of reforms designed to reduce the time taken to
resolve disputes and to improve complaints handling:
3.1 a sifting panel, made up of a solicitor and
non-solicitor, has been introduced to check that
decisions made by case managers not to investigate a
complaint or re-open a case are consistent with statute
and with the Client Relations Office's policies and
practice;
3.2 80 new reporters have been recruited since
September 2003, three new Case Managers joined the
Client Relations team in 2004 and staffing of the
Client Relations Helpline has been increased;
3.3 the number of Client Relations Committees has
been increased to 10 and 50% non-solicitor membership
on these Committees has been introduced (paragraph
128); and
3.4 in December 2004 the Society reached its target
of completing 90% of complaints investigations within
nine months of the complaint being received.
4. The Society has prepared a new rule for introduction
to extend the use of letters of engagement to virtually all
areas of legal practice.
5. The Society has also prepared a new rule to introduce
compulsory Client Relations Partners in law firms to deal
with complaints at an early stage to the client's
satisfaction or understanding
38 (paragraph 122).
Faculty of Advocates
6. The Faculty has acted to implement recommendations
made to it by the Justice 1 Committee:
6.1 arrangements for compensation of up to £5,000
have been introduced for upheld complaints, with effect
from 1 January 2005 (paragraph 150).
6.2 an information sheet is now provided to all
complainants and easily accessible information on
complaints is now available on the Faculty's website
(paragraph 152).
6.3 new arrangements for 50% lay representation on
the Faculty's complaints committees and its
Disciplinary Tribunal were introduced with effect from
1 January 2005 (paragraph 154).
7. A memorandum of understanding between the Faculty of
Advocates and the Law Society of Scotland was signed in
June 2004, which deals with complaints made against both an
advocate and solicitor in relation to the same action,
advice or representation; and complaints against a
practitioner who has moved from one branch of the
profession to the other (paragraph 156).
APPENDIX B
Justice 1 Committee recommendations not
requiring legislative action
"The Scottish Legal Services Ombudsman should
be given powers to make recommendations on the
operation of the complaints procedures of the
professional bodies" (paragraph 68)
1. The Ombudsman is already able to make such
recommendations
39. Though not binding, experience over the past decade
shows that a high proportion of recommendations are
accepted by the professional body, albeit in some cases
quite slowly.
"The Committee recommends that there should be
lay involvement in the setting of standards for
professional bodies to ensure that the consumer's voice
is represented from the very outset" (paragraph 72)
2. The Society's Client Care Committee which is
responsible for standard setting has 50% lay membership.
The Professional Practice and Competence Committees, which
have relevant contributions to make in relation to standard
setting, do not have non-solicitor members at present. The
Council of the Law Society of Scotland believes lay
membership does add value, however, and has recently
recruited non-solicitor members for its Professional
Practice Committee, although the proportion is unlikely to
be as high as 50%.
"Increase to £5,000 the maximum level of
compensation which the Law Society of Scotland or the
Scottish Solicitors' Discipline Tribunal can direct a
solicitor to pay a client in respect of inadequate
professional services" (paragraph 104)
3. An order was laid before the Scottish Parliament on
22 December 2004 to implement the increase recommended by
the Committee. Ministers considered the increase to be an
appropriate reflection of how seriously they regard the
loss, distress and inconvenience experienced by
complainants. The order came into effect on 1 April
2005.
"Membership of the Scottish Solicitors' Discipline
Tribunal should be appointed by an open selection
process" (paragraph 134)
4. Solicitor and non-solicitor members are now appointed
in this way. It is already possible for the Tribunal to be
chaired by a lay person, assisted by a legally qualified
clerk (paragraph 134). It has been suggested that the
Tribunal should always be chaired by a lay person, to
emphasise its independence, but the Executive believes that
such decisions should be left to the discretion of the
Tribunal.
APPENDIX C
Clementi report on the regulatory framework in
England and Wales
(a) Governance arrangements
1. Sir David Clementi recommends that regulatory
functions are best dealt with by a model he refers to as
Model B+. This involves an oversight regulator, the Legal
Services Board, which would have regulatory powers which it
could delegate to recognised front-line (ie professional)
bodies, where it was satisfied of their competence and that
appropriate governance arrangements had been made to split
the body's regulatory and representative functions. Sir
David discusses the current governance arrangements of the
Law Society of England and Wales and the Bar Council and
concludes that they are inappropriate for the regulatory
tasks they face.
(b) The establishment of new complaints
systems
2. Sir David recommends that an Office for Legal
Complaints (subject to oversight by the proposed Legal
Services Board) should be established as a single
independent body to handle consumer complaints regarding
all members of legal professional bodies. He views such a
complaints system as easy to access and independent in
dealing with consumer complaints.
3. Chapter C of Sir David's report examines the problems
that exist with the current complaints system in England
and Wales, and possible solutions. It concludes that for
reasons of independence, simplicity, consistency and
flexibility a single independent complaints body for all
consumer complaints should be adopted. The Office for Legal
Complaints would be independent in dealing with individual
complaints but would need to work closely with the Legal
Services Board to ensure that regulatory oversight reduced
complaints at source. The Office for Legal Complaints would
be part of a single regulatory framework, with the Legal
Services Board at its head.
4. The report recommends that the Office for Legal
Complaints should ensure that front line regulatory bodies
are involved in the complaints handling process by
developing feedback loops, so that the profession can learn
from complaints and respond by acting to push up
standards.
5. Issues about professional conduct, including
disciplinary action, would be handed down to the legal
professional bodies. The Chapter's overall conclusion is
that the disciplinary systems of the legal professional
bodies work reasonably well in England and Wales and could
be left broadly as they are, subject to a small number of
changes.
6. The report reckons that the cost of any new
complaints handling system for the legal sector should not
be borne by the taxpayer. It argues that the cost should be
partly funded by a general levy across the front line
regulatory bodies, and partly by payments from those
against whom a complaint has been upheld - the 'polluter
pays' principle.
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