Promoting best practice in client care
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Issue 5: DECEMBER 2016

One year on...

The quarter’s CRM Newsletter – issue 5 – marks a year from the first edition and the intervening months have seen a steady increase in the number of people signed up to receive this. We have also received extremely encouraging and positive feedback – it is good to know that the Newsletter, together with the quarterly published decisions, provides useful and practical information.

To mark this milestone we invited Austin Lafferty to provide the first in what we hope will become a series of “guest speaker” slots. We are very grateful to Austin for taking time to put together an entertaining and informative view of complaints – and how best to avoid them – from “the other side”.

Each year, my area of the SLCC – Oversight – carries out a wide range of outreach activities. The past year has seen an increase in these activities with, I’m glad to say, a number of repeat invitations to run workshops or speak at seminars or annual conferences. It is of course one of our statutory functions to provide this best practice guidance, based on insight gleaned from dealing with complaints.

There is always room for improvement, however, and we are keen to hear your views on training on complaint handling. What form and content would most benefit you in equipping you to deal with complaints – and how frequently do you think such training should be offered? It would be extremely helpful if you would take a couple of minutes to complete our on-line survey and tell us what you think. Take the Survey.

Finally, we recently announced important information about changes to the time limit for making a complaint to the SLCC – which will increase from one year to three years. Firms will require to update their signposting information about the SLCC in their Terms of Engagement and complaints procedures before the implementation date of 1 April 2017. Further details can be found here.

Guest Article - by Austin Lafferty
I have probably over 35 years seen, on various Law Society committees – including complaints in the old days pre-SLCC -  error, denial, misconduct, miscommunication, risk ignorance (i.e. the opposite of risk awareness), wishful thinking and downright dishonesty. That said, it should be remembered that this has been a tiny percentage of Scottish solicitor practice, the vast majority of which is honest, diligent, professional and highly beneficial to clients and the public.
When doing talks – to student or lay audiences I may do a Q & A, and ask: What makes a good solicitor?
Depending on the experience of the crowd, they offer suggestions like knowledge of the law, intelligence, analytical ability, good presentation style.  All useful, but what lawyers need are three things:
  1. The ability to stand up for clients even if it’s not popular;
  2. The ability to stand up TO clients .  I had a divorce client who came in and said his wife was claiming a share of his pension. I said under the law she is entitled to half of it. His response to that was “Whose side are you on?”
  3. And a deep, genuine and abiding interest in human nature. You have to be interested in your clients if you are to help. You need to understand them.  I maintain that a good lawyer should be (morally at least) entitled to an honorary psychology degree – when the client comes in you have to hear their story. You also have to hear what they are not saying, you need to appreciate body language, notice things like appearance, facial gesture, apparent prejudices… even smell. Get as comprehensive a picture of them as you can – not to catch them out or be one step ahead, but so that you can advise and represent them to the best effect. In Casino Royale James Bond says when playing poker you don’t play your own hand, but the other person’s, and legal practice is like that.
It is also hard. Unless you are very lucky indeed, you will be tasked with making split second decisions all day every day, fighting a screen of emails /red hot phone/ waiting room stuffed with punters. In legal dramas on TV they’ve got one client, a case to last 7 episodes. Our lives are like the guy on TV variety shows - 100 canes with plates on the end of them on the stage, running around to keep them spinning while the music plays – and a grin on his face one quarter inanity, three-quarters terror.
None of that counts as excuse. We have to get it right every time. If you don’t then it may be a service complaint to SLCC, a conduct complaint investigated by the Law Society, or a claim for negligence.
So here are some Be’s:
Be honest – with clients, colleagues, the court. Seems obvious from a moral and ethical point of view, but also in these days of case management, emails, IT databases , you are likely to get found out. Once reputation lost, that’s it.  There are sadly plenty of awful cases where solicitors have meant to do something – raise a court action, beat a time bar, and end up lying to the client – even in one sad case paying the compensation out of his own pocket to protect the web of lies.
Be able to say no – to the same groups. E.g. anti money laundering. Do NOT settle the transaction without meeting the statutory and Law Society requirements about source of funds and vouching as a) you may be committing various offences, b) you’re getting your firm into trouble, and c) the stable door will have closed and the money launderer has bolted.
Be ruthless – with yourself. The Mañana (Scotland) Act will always get you into trouble – diarise, create reminders, never trust memory. Record everything. Remembering something from 3 months ago is no good – indeed a complaint may come in a year later, and a negligence action 5 years later. What if staff have moved on or died? Failure to record actions and communications has been a large element in complaints being upheld.
Be quick/in touch – imagine you are a customer of the firm. Again play that Casino Royale hand – how would YOU like it if your phone calls to a company were not returned, if you got charged more than expected for a service or got letters that were inaccurate and badly spelled?
Be reliable – if you promise something do it.  There is nothing worse than saying I will do XYZ and then instead doing ABC, or nothing. It’s a sure way to trouble and to losing the client.
Be candid – fess up, consult, take help.  With the best will in the world, things wil go wrong – indeed you may have dealt flawlessly but remember the motto of the legal profession
– This would be a great job … if it weren’t for the clients.
To finish, Be… informed. There is lots of material available to help you know and keep the rules, so set aside enough time to read what’s needed and what’s happening. Every day is a (law) school day. A short selection:
  • – The Society’s own site, containing all the legislation, rules and guidance you need.
  •  - and/or the physical Journal, which has a monthly section on SSDT decisions and contains lots of material on good practice;
  • - the annual report of the SSDT;
  • and , especially the Guidance and best practice notes – excellent advice on complaints handling, that also give in passing good advice on how to conduct yourself in practice.
  • – Scottish Legal News.

Learning from complaints

Our Determination Committees decided 24 complaints in the quarter July to September; 7 were either wholly or partially upheld, with the remaining 17 complaints not upheld.
Complaint 16/53 is an interesting complaint as it highlights the use of a relatively new aspect of our legislation. This was an amendment which, from 1 January 2015, allowed the SLCC to revisit an eligibility decision where new information cast a different light on the issue and indicates that an issue should have been rejected at an earlier stage in the process.
In this particular complaint, the complainer had alleged that their solicitor had made an inappropriate remark during a meeting. As is not unusual in such situations, the accounts of both parties were directly contradictory. On the balance of probabilities, and in the absence of any other evidence, it had been recommended that the issue could not be upheld.
However, during the course of the Committee’s investigation it became clear that other parties may have been present at the meeting in question. Statements were obtained from those parties who unanimously contradicted the position as alleged by the complainer.
The Committee considered that, had this information been available at the time the complaint had been received, this particular issue would have been deemed “totally without merit”. So, rather than decide not to uphold the issue, the Committee revisited the original eligibility decision and determined that this issue was totally without merit.
It is worth remembering that, at the eligibility stage, the SLCC is restricted in the level of investigation that can be carried out and decisions on whether or not to accept a complaint have to be made on the basis of the (often scant) information presented to us. The eligibility threshold is therefore a low one. However, there is nothing to prevent solicitors from submitting their own first tier investigation papers to us; this can often assist us in making a better-informed eligibility decision.
Returning to the case in question, it is unfortunate that these particular circumstances only came to light at such a late stage in this process – had this been brought to our attention sooner this issue could have been removed from the process much earlier on. However, it serves a useful reminder of the importance of providing as much relevant information to us as possible – and as early as possible.
See all decisions here
  • 15th December, “Best Practice in Complaint Handling”, Faculty of Advocates
  • 23rd January, “The SLCC & Mediation”, Scottish Mediation Network event on mediation in the Public Sector
  • 20th April, “Complaints – Best Practice”, Scottish Paralegals Conference, Glasgow
  • 21st April, Training for Trainees workshop, Glasgow Bar Association
News in brief:
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