Commentary on Sections Part 1 – the Scottish Legal Complaints Commission Section 2: Receipt of complaints: preliminary steps
5.The Commission is to act as the gateway for all complaints about either the service provided by a legal practitioner or the conduct of a legal practitioner, where it has not been possible for the practitioner or the practitioner’s firm to resolve the complaint at source. The range of practitioners subject to the jurisdiction of the Commission is set out in section 46 which defines the term “practitioner”. Relevant professional organisations which receive a complaint direct from a complainer are required by section 33 to send it to the Commission without delay.
6.Section 2 sets out the preliminary steps which the Commission must take on receipt of a complaint. The Commission may receive complaints about either the conduct of a legal practitioner which may involve either professional misconduct or the new concept of unsatisfactory professional conduct (defined in section 46) on the one hand or the adequacy of the professional services provided by a legal practitioner on the other (referred to, respectively, as “conduct complaints” or “service complaints”). On receipt of complaints, the Commission’s initial function is (a) to determine whether or not they are eligible and (b) to reject those which it determines to be frivolous, vexatious, totally without merit or otherwise ineligible in terms of the Commission’s rules. The Commission must give notice in writing to the complainer and the practitioner that the complaint has been rejected.
7.Any person may make a complaint alleging either professional misconduct or unsatisfactory professional conduct. The Commission will not however deal with a complaint where any element of the complaint involves the conduct of a practitioner acting in a judicial capacity in a court or tribunal specified by order by the Scottish Ministers. The purpose of this exclusion is to preserve judicial independence, particularly where legal practitioners sit as part-time sheriffs or tribunal chairs. In addition, the Commission will not deal with a complaint that has been made prematurely or outwith the prescribed time limit for making a complaint.
8.Persons who may make a complaint alleging inadequate professional services are those who appear to the Commission to have been directly affected by the services which are the subject of the complaint. So the Commission is not required to (and should not) take forward a complaint made by someone who does not appear to have been directly affected – unless the person is one of those listed in subsection (2)(b)(ii) to (viii). Under subsection (2)(b), certain public bodies and office holders and any relevant professional organisation may make a services complaint: the public bodies and office holders are the Lord Advocate, the Advocate General for Scotland, any judge (including a sheriff), the Auditor of the Court of Session, the auditor of any sheriff court, and the Scottish Legal Aid Board. These public bodies and office holders may come across unsatisfactory practices in the course of their work and may have a legitimate public interest basis for reporting these. The relevant professional organisations are defined in section 46.