Legal Profession and Legal Aid (Scotland) Bill
2006
Just as the courts in Scotland have tried to make life a little
easier for lawyers so the Scottish Executive seems determined to do
quite the opposite.
The Legal Profession and Legal Aid (Scotland) Bill is the
product of a recent review of procedure for the handling of
complaints against lawyers in Scotland and was in turn provoked by
the Clementi review in England. This Bill demonstrates a
straightforward acceptance of the recommendations of the English
review notwithstanding the perception that it was intended to deal
with a predominantly English problem of difficulties and delays in
the handling of complaints against solicitors.
At the moment complaints of poor service on the part of
solicitors and advocates are dealt with in the first instance by
their respective disciplinary bodies namely the Law Society of
Scotland and the Faculty of Advocates. Disgruntled complainers have
the option of an Appeal against the refusal of any complaint to the
Scottish Legal Services Ombudsman. This new Bill abolishes the
Ombudsman and proposes the institution of a new body to be known as
the Scottish Legal Complaints Commission which will deal with all
complaints of inadequate professional service on the part of both
solicitors and advocates.
That body is to be paid for by way of two levies - the first
being a general levy on all legal practitioners and the second
being a levy payable by those practitioners in respect of whom a
complaint is received. Bizarrely this second levy is payable
regardless of whether or not the complaint is ultimately upheld. It
is proposed that the Commission would have power to award
compensation to unhappy clients of a level of up to £20,000 with
only very limited rights of appeal available to any solicitor who
is ordered to pay such compensation.
The levels of compensation which may be awarded by the
Commission are the most immediate concern to legal practitioners.
Up until a year ago the maximum compensation payable on
consideration of a complaint by the Law Society was £1,000. That
limit had been in place for many years and the extension made in
2005 to increase compensation awards to a maximum of £5,000 was
generally welcomed but it is difficult to see why such a
significant further increase is at this stage required except as a
means of duplicating the proposals now being considered in
England.
One practical concern is the likely consequence that members of
the public may in many instances now find it impossible to obtain
legal assistance. It is well recognised that certain types of work
are likely to prove more difficult than others. Often this work is
carried out for demanding clients in return for very restricted
legal aid remuneration. Already solicitors are warning that the
prospect of having to pay an additional levy as the recipient of a
complaint (regardless of whether or not it is ultimately judged to
be well founded) will persuade them to turn certain clients
away.
The main consideration for insurers is whether or not cover
should be extended by them in order to cover solicitors against not
only such possible awards of compensation but also the costs of
responding to a complaint that is being considered by the
Commission.
Solicitors in Scotland are covered by a master policy which has
previously signalled that cover is not available in respect of the
awards up to £5,000 currently available from the Law Society for
well-founded complaints of inadequate professional service. The
likelihood must therefore be that they would seek also to avoid
liability for any such awards made by the Complaints Commission.
The difficulty is that many solicitors in Scotland continue to act
as sole practitioners with modest overheads and only slightly less
modest incomes. There will be some instances in which an award of
compensation of £20,000 will mean the difference between the
practice continuing or dissolving. That, in turn, may increase the
need for legal services to be provided either by non-lawyers or
through legal expenses insurance.
The Bill has yet to be considered in any detail by the Scottish
Parliament and there are real concerns over whether or not all of
its provisions are compliant with the Human Rights Act. Most
lawyers in Scotland do, however, assume that the Bill will become
law in due course with only modest amendments to its current
provisions.