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Issue 3: June 2016

Major Milestones

The summer period will see four important milestones for the SLCC which are all relevant to solicitors in practice. 
 
Firstly, we've published our new strategy, as well as this year’s operating plan, after extensive consultation.  We’re hugely grateful to the lawyers and consumers who helped input into this, and it will now guide all our work until 2020. 
 
Next, we would encourage you to look out for the launch of our paper calling for legislative change around regulation and complaints.  We hope this sparks debate about what outcomes we are seeking to achieve for consumers and for the sector, and we’ll welcome views from CRMs.   
 
We also await the outcome of an important Court of Session Appeal case which may affect how service and conduct issues are classified and divided between us and the professional bodies.  We were grateful the Law Society of Scotland formally supported our position, but if the decision interprets matters differently we may need to make changes to our current approach.  This has resulted in us delaying the implementation of our time scale limits – see the separate article below.
 
Finally, our Board continues to consider operational improvements as we focus on how we can reduce the time complaints take.  A review of our ‘eligibility’ stage is currently well underway, which looks at how we can maximise efficiency even if currently having to do so within the tight constraints of the current legislation, and how it is interpreted by the courts.

I hope you enjoy the newsletter, let us know any feedback you have.
Learning from complaints - Third Party Complaints
 
This quarter we have published a further 28 decisions which were made by the Commission’s Determination Committees during the months of January to March.
 
As in previous periods, most of the complaints are those made by clients about alleged inadequate service by their own solicitors.
 
Inadequate service complaints can, however, be made by anyone who has been affected by the alleged poor service. This can therefore extend to third parties - generally, but not always, the opposite party to the one the solicitor is acting for. Unusually, six of this quarter’s upheld decisions stem from these third party complaints. 
 
In approaching a third party complaint, the Commission adopts a two-step process:
 
1. Is there evidence of an inadequate professional service to the solicitor’s own client? Only if this can be established do we go on to ask
2. Did that inadequacy have a direct adverse impact on the third party (the complainer)?
 
Accordingly, third party complaints are not simply an opportunity for a begrudged loser in a court case to have a pop at the winning side’s solicitor. There has to be more to it.
 
Conveyancing transactions can often give rise to third party complaints, generally when a defect in the purchase of a property is only exposed when the new owners subsequently decide to re-sell. 
 
However, there are some interesting features in some of the examples from this quarter.
 
Cases 16,2-16,5 are clearly related and arise from the same executry case. Over a period of approximately 20 months the practitioner completely ignored 12 separate pieces of correspondence which had been sent by the complainers’ own solicitors. The Committee considered that this represented a poor service to the practitioner’s own client - the deceased - and that the impact on the 4 separate complainers was sufficient to merit upholding the complaint.
 
However, the one I find most interesting is case 16,10. Every day we see complaints from clients about delays in their own transactions being concluded. This one is unusual in that it is from the opponent. The Committee decided that there had been various delays in progressing matters which represented an inadequate level of service to the solicitor’s own client - who may or may not have complained - and that this had adversely impacted on the complainer. 
 
So the lesson to learn is that even if your own client isn’t particularly concerned about a delayed outcome, or for natural reasons just isn’t around any more, any element of inadequate service could be put under the spotlight by someone else…..anyone, in fact, who may have been badly affected by it.
 
Like all complaints, under the prematurity provisions, we expect those from third parties to be investigated at first tier by practitioners. If something has gone wrong, that’s your opportunity to put it right. Although these type of complaints may need to be treated differently from a complaint from your own client, and you may want to have a separate process for dealing with them to take into account aspects such as confidentiality, they shouldn’t be considered irrelevant. And they should never be ignored.  
See all decisions here
Change to time limits

The proposed change to the time limit for accepting complaints – from one year to three years – which we had aimed to implement from 1 July this year has been delayed pending the outcome of an appeal against one of our decisions in the Court of Session.

We expect to review the time limit later this year and will provide further information, including guidance for practitioners, once a new timescale has been agreed.
News in brief:
SLCC issues guidance on the application of disciplinary sanctions
SLCC becomes a 50:50 by 2020 partner and gains Living Wage accreditation
Guides:
Events:
21st October 2016  Legal Services Agency, Glasgow – “Complaints Best Practice Workshop”

24th October 2016 Inverness Faculty – “Communications – Boundaries, Barriers, Risks and Benefits” (Jointly with Law Society of Scotland)

26th October 2016  Family Law Conference, Murrayfield, Edinburgh – “Risk management - avoiding complaints in family law matters”
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