Andrew Stevenson: Learning lessons from Adelaide on regulating lawyers
In July 2020 the Scottish Law Agents’ Society proposed that the Scottish Legal Complaints Commission charge a modest fee, refundable on success, to those who wish to complain. The amount suggested was £60.
Needless to say this proposal has never materialized in the context of the regulation of the legal profession in Scotland, and there is no indication that it ever will. Instead, the SLCC is seeking a nine per cent increase in the colossal sum it already takes from the legal profession each and every year.
Let us be open minded and look elsewhere for how things can be done better. The legal profession of South Australia is a useful model against which to compare that of Scotland. The general population of the state is about 40 per cent of ours. Its Law Society is about a third of the size of Scotland’s. The SLCC received 1,146 complaints in 2021/22 whereas the South Australian Legal Profession Conduct Commissioner received 380, about a third of that figure.
However, the regulators of solicitors in South Australia clearly possess more understanding than their Scottish counterparts of why it is appropriate and fair to expect a fee from complainants. The Legal Practitioners Act 1981, as amended, allows the Commissioner to fix and require the payment of fees. Unlike the unbalanced system that prevails under the SLCC, the fees in South Australia encompass complainants as well as lawyers.
Since November 2020, anyone wishing to complain about a lawyer in, for example, Adelaide must pay a sum of 110 Australian dollars, including goods and services tax of 10 per cent. This total happens to equate to about £60 sterling. Importantly, the sum is refunded to the complainant in the event of the lawyer being found to have been at fault. The 2022 Annual Report of the South Australian Commissioner explains that “The introduction of the fee to lodge a complaint was intended to ensure that a complainant is serious about making a complaint.”
The Commissioner may waive payment of the 110 dollars where the complainant is on benefits or would struggle to pay. Prisoners, juveniles, seniors and those who have recently been in receipt of legal aid are exempted. This all means that poverty is not a barrier to access to a system of redress. The system is clearly not intended primarily to be a form of raising funds. In fact, in 2022, the fees were waived for most complaints in South Australia. In 2022, the first full year following introduction of the complaint fee, the sum of 12,200 Australian dollars was ingathered, excluding GST. That is around £7,000. If the SLCC did likewise the equivalent would be about £20,000. But the policy would also deter frivolous or opportunistic claims and free up the resources that they consume. Also, in accordance with the “polluter pays” principle, where a complaint fails the person who brought it contributes even in a small way to the cost that he himself has created.
The South Australian system is eminently fair and sensible. Charging a fee of £60 or 110 AU dollars is bound to deter some complaints that are spurious or vexatious, thereby freeing up the commission to deal more expeditiously with meritorious cases. The 2022 Report states that “It is reasonable to assume that the introduction of that fee has had some impact on the total number of complaints received” That stands to reason.
In his 2022 Report the Commissioner considered that “a not insignificant amount of resources of my Office are applied to dealing with what are ultimately unproved or unmeritorious allegation about legal practitioners” and that this “obviously impacts on the time it takes to determine genuine and reasonable complaints and investigations”. It is in the public interest to ask complainers to put their money where their mouth is.
By sharp contrast, any complaint in Scotland, even one that is frivolous or malicious, will be to the inescapable detriment of the solicitor. This happens in two ways. Firstly, the budget of the SLCC is met entirely by the legal profession with no contribution whatsoever by the taxpayer. Secondly, there is the unremunerated time and energy that have to be devoted by the solicitor to responding to a complaint. On the other hand, the complainant faces no financial hit whatsoever, regardless of whether he is a opportunist or not. He has literally nothing to lose.
South Australia is to be commended on applying common sense and fairness to their system of complaints against lawyers. Scotland should follow suit.
Andrew Stevenson is secretary of the Scottish Law Agents’ Society. This article first appeared in The Scotsman.