We'll meet the new challenges, says complaints commission

There was the untimely departure in the middle of the year on health grounds of its first chief executive; defeat in the first challenge to its authority brought by the Law Society of Scotland in the Court of Appeal - with 15 more in the pipeline; and constant sniping about the cost of running it, expenses run up by board members and the cash surplus it is carrying. Admittedly, the fingers squeezing the triggers are unlikely to be satisfied whatever the explanations.

"I think we've kept continuity," says Rosemary Agnew, the new chief executive, formerly SLCC director of investigations. "We've consolidated the work of the first year. We're addressing the new challenges presented by the changed economic environment. We're an organisation that is evolving as it establishes itself."

Rosemary, and Jane Irvine, chairwoman of the SLCC board, prefer to view the past as another country that had to be traversed on the way to the future. The stamps are there in the passport as evidence they were there but, as Barack Obama suggested, whatever we think of the past, we must not be prisoners of it.

It is apparent that the number of complaints the SLCC has received has been less than expected. "That may be due to a number of factors," says Jane Irvine. "A high proportion of complaints to the Law Society under the old system were concerned with conveyancing. The decline of the housing market may have had an effect. Also in recent years many firms appointed their own client relations managers so they may be resolving disputes at a much earlier stage before they become formal complaints. And it takes a long time to fall out with a lawyer."

There may be more business on the way when the SLCC itself becomes better known as a fearless defender of the aggrieved client.

The commission was established under the Legal Profession and Legal Aid (Scotland) Act 2007 as an arm's-length agency that would disarm once and for all the accusations levelled at the professional bodies - principally the Law Society of Scotland and Faculty of Advocates but also including the newer Association of Commercial Attorneys - that they had a conflict of interest in policing themselves when their clients felt aggrieved.

The professional bodies didn't like it and still don't. Not the least of their discontent is based on the fact that their members have to pay individually an annual levy to fund the SLCC's 2.5m running costs.Although the figure may not seem enormous to any client whose jaw has dropped at the hourly rate his lawyers have charged him, the outrage has been spectacular and clearly took the SLCC by surprise.

Horsetrading last year led to a reduction in the levy for the current year to 235 for a solicitor, 118 per advocate and 78 for other categories by drawing down 740,000 from SLCC reserves.

Although the statutory consultation on setting the levy for next year has not yet begun, Rosemary Agnew says: "We'll be asking for less."

Will that take the heat out of the scrutiny of the SLCC's accounts? Wigs might fly.

There was much fluttering in the spring when it was asserted the commission was sitting on 6m of reserves at a time when the professions were feeling the cold draught of recession. "The 6 million reserves figure seems to have been plucked from the air," says Rosemary Agnew. "Our budget has never reached 6m. The most recently published reserves figure is 1.565m and this is published on our website."

Applying a microscope to their accounts is the least of the SLCC's worries. The Law Society of Scotland and individual lawyers have been queuing up on the steps of the Court of Session to challenge it on the way it is going about its business. At the time of writing their annual report, due out next month, there were 12 pending cases. Three more have been added since.

Two earlier challenges have run their course. The first to get to court resulted in an interesting split decision against it in an action brought by the Council of the Law Society of Scotland, challenging the authority of the commission to require the Law Society to investigate what it considers to be trivial matters and complaints without merit.

The initial complaint accepted by the commission was brought by a couple in Duns who had received correspondence from a firm of Edinburgh solicitors alleging that they had been transgressing onto neighbouring land belonging to their client, a building developer, and that damage had been caused to septic tanks and drainage, and warning that a repeat might lead to court action.

The couple wrote back that the solicitor had been "misinformed" on all the relevant facts of the matter but did not receive a reply.

They then contacted the SLCC and lodged a complaint about the lawyer's letter was "overly aggressive, intimidating and threatening" and that they had been "distressed and aggrieved that we have been falsely accused of illegal acts which we have not committed and our character has been defamed."

The commission accepted the complaint. The Law Society argued that it should not have done so as the case was without merit in terms of the Legal Profession and Legal Aid (Scotland) Act.The leading judgement by Lord Kingarth, supported by Lord Reed, acknowledged that it is for the commission to establish its own threshold for the merit of complaints that it accepts, but allowed the appeal on the basis that this particular case was without merit because the couple had misunderstood the obligations of solicitor to his client and overreacted to the language used. They acknowledged what could appear unexceptionable between lawyers could seem aggressive to the lay public.

Both the SLCC and the Law Society have declined to expand on their view of that judgement since it was delivered in September. They may be conscious that the dissenting judgement of Lord Malcolm may be more in tune with the intentions of the Act.

"The present case might prompt the society to reflect on what is to be expected of a solicitor who is instructed to write a letter directly to lay people threatening court action on the basis of alleged wrongdoing … the Society may wish to consider whether it is satisfactory for the solicitor to ignore rebuttal letters, especially if in the meantime he neither raises the threatened court proceedings nor says anything further on the subject, thereby leaving the people concerned in a state of uninformed limbo."

Jane Irvine takes a a sanguine view. "It's a new Act and we always knew it would have to be tested before everyone could settle down. Though I think it's significant how quickly the legal professionals have rushed to the courts so far."

It is understood the Law Society and the SLCC are to meet for discussions next week. The commission will normally be required to pay the costs of the other side when it loses. With only 63,000 set aside in the budget for legal costs in the current financial year, it will be hoping the discussions indicate a cessation of hostilities.