David Buchanan-Cook: A change is under way in Scotland's law
STAYING close to the case is paramount to finding all the fresh evidence, finds David Buchanan-Cook
April 1st, apart from being April Fool’s Day, is often a time of change. As the start of the financial year, it’s the point at which many organisations start their new operational year and the commencement of new projects.
For lawyers across Scotland this year it marks a significant change to the way in which we look at legal complaints. The period in which we can accept a complaint to us about a lawyer’s conduct, or poor service, will increase from one year, the level set when the SLCC was established in 2007, to three years.
So why the change?
In a previous job as a Forensic Accountant specialising in fraud investigations, I was always told “fresh evidence was best evidence”; the further you are from the matter under investigation, the less likely you are to find all the evidence you require, and of course, witness recollection blurs over time.
The main reason for the change is the nature of legal complaints. We frequently see situations where clients delay reporting a complaint because they want to wait until their business has completed.
They don’t want a complaint to interrupt or delay the progress of on-going litigation, for example. Litigation can take years, by which time the one-year clock has stopped and their complaint, however valid, is rejected because it has been made too late. Last year, we rejected 74 complaints for this reason. Lawyers are also obliged to keep detailed records of transactions and their client file will often be the critical source of evidence which informs the outcome of our investigation. The Law Society currently requires solicitors to retain files for longer than three years, so – providing accurate records have been kept – there should be no detriment in terms of the need otherwise to rely on personal recollection.
So why three years?
We considered time limits in place for other ombudsman-type schemes.
The obvious comparator was our counterpart in England and Wales, the Legal Services Ombudsman or LeO. Their overall time limit currently is six years.
The same is true for the Financial Services Ombudsman. Those schemes which opted to comply with the EU Directive on Alternative Dispute Resolution have had to dispense with the concept of an overall maximum time limit at all. For them, the clock starts ticking at the point the complaint is made to the service provider - and that complaint can be made any time after the event or service complained about.
We believe that while one year is overly narrow compared with other complaint-handling bodies, six years would be a step too far in the other direction.
Three years is a suitable compromise. So, when complaint numbers are increasing, are we simply creating another rod for our backs?
We don’t think so. The change will only apply to complaints about new business which commences on or after 1st April, or complaints where the alleged occurrence of the relevant act, omission or conviction was on or after that date. It’s not retrospective and it doesn’t mean, as some feared, that people who have already had complaints refused as being out of time can have a second bite at the cherry.
What it does mean is that lawyers from 1 April will have to amend their Terms of Business/Engagement letters, and probably their own internal complaints procedures.
• David Buchanan-Cook is Head of Oversight at the Scottish Legal Complaints Commission