Mohammed Sabir

Complaints against solicitors are inevitable. The important question is not whether complaints are made, but how they are investigated, by whom, and whether the process commands confidence from both the public and the profession.

The Scottish Legal Complaints Commission was created by the Legal Profession and Legal Aid (Scotland) Act 2007 against a background of concern about a complaints system in which the legal profession was perceived as investigating itself. Independence was intended to improve public confidence.

That makes the quality of the SLCC’s own investigations fundamental.

This article concerns one complaint in which I represented the complainer. I do not suggest that one case establishes how every SLCC complaint is handled. Nor is my argument that the allegations against the solicitors complained of necessarily had to be upheld. My concern is with the process. When a detailed and disputed complaint reaches the SLCC, what does an independent investigation actually involve?

The complaint

The complainer had previously been represented by a firm of solicitors, which I shall call CS, in Court of Session divorce and financial proceedings.

This was not a general expression of dissatisfaction. Following the eligibility process, nine heads of inadequate professional service were identified. They concerned, among other things, enquiries following service of divorce papers at an incorrect address; properties allegedly omitted from negotiations; the possible instruction of a handwriting expert concerning a Minute of Agreement; affidavits and the taking of instructions; interdict and dissipation of assets; representations concerning the disposal of property to a daughter at an alleged undervalue; the eventual disposal of the Court of Session proceedings; and communication with a client who could not communicate effectively in English.

The allegations might ultimately have been well founded, unfounded or somewhere in between. That is precisely why an investigation was required.

Administration or investigation?

There is a difference between administering a complaint and investigating one.

Administration receives documents, fixes deadlines, relays responses and moves a case through a process. Investigation requires something more. It requires the investigator to test evidence, identify inconsistencies, ask obvious follow-up questions and pursue material lines of enquiry which emerge as the investigation develops.

CS eventually provided a detailed response and made a commercial settlement offer of £2,500, without admission, conditional upon withdrawal of both the SLCC complaint and contemplated court proceedings.

During a telephone conversation on 28 August 2025, the investigator discussed that offer with me. There are two contemporaneous records of the conversation. The SLCC’s record states that the investigator indicated that the settlement probably exceeded the level of redress likely to be recommended. My own attendance note records the discussion in stronger terms, including that the offer should be accepted, that compensation was unlikely to exceed £1,500 and that the investigator could not identify serious faults.

There is no recording of the conversation and I do not suggest that my note should simply be preferred to the SLCC’s. What matters is that both records establish that, at a relatively early stage of the investigation, a provisional assessment of likely outcome and quantum had already been communicated.

That does not, of itself, establish predetermination. It does make what followed, and the rigour of the subsequent investigation, particularly important.

Investigation behind closed doors

A more serious difficulty then emerged.

The investigator referred to two CS file notes dated 11 February 2022 and 1 March 2023 concerning communication and the taking of instructions. Those documents were plainly relevant to a complaint involving a client whose ability to communicate in English was itself in issue.

The investigator had seen them.

The complainer had not.

That was particularly concerning because CS had previously indicated that its full file had been supplied.

The obvious questions were not complicated. Why had these notes apparently not formed part of the file supplied to the complainer? What did they record? Did they support or undermine the competing accounts? Did their emergence require further enquiry? Did the apparent discrepancy concerning production of the file itself require investigation?

When I sought to have the existing complaint amended to address the apparent failure to provide the complete file, I was told that a further complaint could be made. The existing investigation would continue.

When disclosure of the notes was sought, the SLCC relied upon section 43 of the 2007 Act and the inquisitorial nature of its process.

The problem was obvious: the investigator and the complainer were operating from different evidential bases.

I accept that an inquisitorial process does not necessarily require every document to be copied automatically between the parties. But “inquisitorial” cannot simply mean that the investigator sees everything while the complainer sees less. If material obtained from one party influences the assessment of a disputed factual issue, there must surely be some mechanism by which that evidence can be meaningfully tested.

Otherwise, the very feature said to justify the procedure — the investigator’s control over the evidence — becomes the source of procedural inequality.

There is a simple way of testing the proposition.

What would happen if this occurred in a court of law?

Suppose one party to a defended action handed the judge a document bearing directly upon a disputed factual issue. The judge read it. The other party was not allowed to see it. That party could not take instructions upon it, challenge its accuracy, explain its context or produce evidence in answer to it. Yet the document remained before the judge when the disputed issue was determined.

Would we regard that as a fair procedure?

The SLCC is, of course, not a court. Its procedure is inquisitorial rather than adversarial and there may be legitimate statutory reasons why particular information cannot be disclosed. But that does not answer the underlying question. If the ordinary opportunity to see and answer material evidence is removed, what safeguard takes its place?

In this case I could not identify one.

The problem was not simply that the complainer wanted to see documents held by the SLCC. The investigator had access to evidence directly relevant to a disputed issue which the complainer did not have. The investigator could consider it. The complainer could not meaningfully challenge it.

An inquisitorial process may justify a different procedure. It should not justify a lower standard of procedural fairness.

Who investigates the investigator?

The disagreement eventually went beyond dissatisfaction with an individual evidential decision.

On 11 September 2025, I expressly challenged the investigator’s interpretation of section 43. I asked that the investigation be paused, that the file and the statutory issue be referred to the SLCC’s in-house legal team for urgent consideration and direction, and that the case subsequently be reassigned.

The response refusing those requests came from the investigator herself.

She maintained that disclosure of the two file notes was not necessary to fulfil the SLCC’s duty of procedural fairness and that the complaint would neither be reassigned nor paused. If I remained dissatisfied, I could make a service-delivery complaint.

I did.

The service complaint was acknowledged by the director of resolution but referred to another case investigations manager. The substantive investigation report was, at one stage, paused while that process was considered.

When matters were subsequently escalated to director level, I was told that the service-complaint process was “quite narrow” and that a review under that policy could not achieve the outcomes I was seeking.

So where within the SLCC process is there an effective mechanism for identifying and correcting a problem with a live investigation before that investigation is concluded?

If a party merely says, “I disagree with the investigator”, it is entirely understandable that the investigator should continue doing her job. That was not what was being said here. The challenge was that the investigation itself was procedurally unfair and that the investigator had adopted an incorrect interpretation of the legislation governing disclosure. Independent legal and senior review was expressly requested.

The investigator whose approach was being challenged effectively remained the gatekeeper to that challenge.

That cannot be a satisfactory form of independent scrutiny.

Who are the investigators?

This experience led me to examine the SLCC’s published recruitment material.

There is no requirement for an SLCC case investigator to be legally qualified. That, by itself, is not objectionable. Ombudsman and regulatory organisations can employ excellent investigators from many professional backgrounds.

More interestingly, the SLCC’s recruitment material expressly contemplates applicants who may be looking for their first experience of investigations. Its job description refers to experience in a regulatory, professional-services or client-services environment, ideally with an understanding of the legal environment.

At the same time, the responsibilities placed upon an investigator are substantial. They include assessing statutory eligibility tests and professional standards, conducting objective investigations, obtaining and assessing evidence, applying legislation and professional rules, preparing investigation reports and recommending whether complaints should be upheld.

The SLCC’s own recruitment material says that an applicant may be looking for their “first experience of investigations”. It also says that investigators will undertake “comprehensive training and continuous feedback”.

That combination is important. There is nothing inherently wrong with recruiting someone without previous investigative experience. But it makes the content, quality and supervision of that training all the more important.

In this case, I expressly requested legal review of a disputed interpretation of the SLCC’s governing statute. The request was refused by the investigator whose interpretation I was asking to have reviewed. The subsequent service complaint entered a process which the Director of Resolution herself described as narrow.

The greater the discretion exercised by an investigator, the more important the questions of training, supervision and accountability become.

If an investigator can obtain evidence from one party, decide whether another party sees it, determine what further enquiries are necessary, interpret the governing legislation, assess disputed evidence and ultimately recommend the outcome, the competence and supervision of that investigator are not peripheral administrative matters. They are safeguards at the heart of the system.

The SLCC refers publicly to comprehensive training and quality assurance. There is considerably less publicly available detail about the duration and content of core investigative training, competency sign-off, training in evidence and procedural fairness, the circumstances in which legal advice should be obtained, and the threshold for escalation where the conduct of an investigation itself is challenged.

Those are questions which a statutory complaints body exercising these powers should be able to answer.

There is now a further reason to question the adequacy of these arrangements. In response to a formal information request dated 24 September 2026, the SLCC confirmed on 21 October that it holds no formal competency assessment required before an investigator manages cases independently. It also confirmed that it holds no documented criteria governing referral to senior staff or for internal or external legal advice.

When asked who decides whether a disputed interpretation of the 2007 Act should be referred for independent legal or senior review, the SLCC’s answer was remarkably brief:

‘Decision of CI.’

In other words, the investigator whose interpretation is being challenged may determine whether that interpretation requires independent scrutiny.

The SLCC has training and quality-assurance arrangements, but what protection do they offer where the investigator’s own understanding of the governing legislation is the issue?

From investigation to determination

The investigation report was issued on 8 October 2025 and recommended that none of the service complaints be upheld.

Detailed written representations followed. They did not simply argue that the investigator had reached the wrong conclusion. They challenged the process which had produced it: reliance upon evidence unavailable to the complainer, the treatment of section 43, the unequal evidential position, the investigator’s earlier provisional assessment and what was said to be inadequate testing of CS’s account.

Further submissions followed, including requests that determination be deferred while disclosure issues remained unresolved.

At this point the statutory structure appeared to provide its safeguard.

The investigator investigates and recommends.

A Determination Committee determines.

Before the final decision, the SLCC itself advised me that its Determination Committee agrees with the overall investigation recommendation to uphold or not uphold a complaint “more than 90 per cent of the time”.

That statistic made what followed particularly interesting.

Independent determination or rubber stamp?

The Determination Committee issued its decision on 25 November 2025.

Its substantive conclusion was:

“The Firm has not provided an inadequate professional service.”

The section headed “COMMENTS FROM DETERMINATION COMMITTEE” contained the entirety of the committee’s identifiable reasoning:

“The committee agreed with the reasoning given in the Recommendations.”

That was it.

Nothing in the determination enabled its reader to identify what independent scrutiny the committee had applied to the challenged aspects of the investigation.

Perhaps the committee considered every representation and rejected every one of them. Perhaps it independently examined the evidential and procedural issues and concluded that none affected the result.

The determination does not tell us.

Adequacy of reasons is not a question of length. A decision-maker need not respond to every sentence advanced by a party. But where material representations challenge not merely the merits of a recommendation but the fairness of the process which produced it, one would expect the final determination at least to reveal how the central issues were resolved.

I therefore sought reasons.

The SLCC’s subsequent response was striking:

“There is no requirement for the Determination Committee to address specific aspects of the complaint.”

For me, that response exposes one of the most important weaknesses in the system.

What is the committee for?

Why have a Determination Committee at all?

If the investigator investigates, evaluates the evidence and recommends an outcome, while the committee can dispose of detailed challenges simply by saying that it agrees with the investigator’s reasoning, what function is the second stage performing?

If all that is required is adoption of the recommendation, the investigator could simply make the final decision.

Surely the point of separating investigation from determination is independent scrutiny.

That is particularly important in an inquisitorial system. The investigator has substantial control over the evidence and the direction of enquiry. The Determination Committee should therefore provide a genuine safeguard against investigative error.

It is not enough simply to call the committee independent. Its decision should demonstrate that it has considered the issues independently.

There should, in my view, be an express duty upon the Determination Committee to consider and address material representations made by both the complainer and practitioner concerning an Investigation Report. The determination should identify the material disputed issues and provide sufficient reasons for accepting or rejecting them.

That does not require a lengthy judicial opinion. It requires enough reasoning to show that the committee has actually considered the material issues for itself.

Reform and redress

The Regulation of Legal Services (Scotland) Act 2025 makes significant changes to the complaints framework. The SLCC is presently developing the procedures through which those changes will operate.

Under the statutory regime applicable to this complaint there was no internal appeal from the Determination Committee. The next statutory route was an appeal to the Inner House of the Court of Session under section 21 of the 2007 Act.

For a complaints system intended to provide accessible redress, that is a remarkable escalation.

There is also a financial dimension on the other side of the complaint which should not be overlooked.

The profession’s compulsory Master Policy expressly recognises service complaint awards. Under the 2026/27 rating rules, the standard Self-Insured Amount is doubled for claims relating to Service Complaint Awards and IPS Awards. An adverse service determination can therefore have a direct financial consequence for the solicitor or firm, quite apart from any reputational consequences.

This matters because both sides have a legitimate interest in a reliable decision. The complainer is entitled to expect a fair investigation of the complaint. The solicitor or firm is entitled to expect the same where an adverse determination may carry direct professional and financial consequences.

Yet, under the system applicable to this case, the means of challenging the final SLCC determination was not a proportionate internal appeal. It was litigation in the Inner House.

That is too large a jump.

The 2025 Act replaces the Court of Session appeal with an internal review committee. The SLCC itself has described the existing court appeal as “costly and disproportionate”. That reform is welcome. But an internal review will be worthwhile only if it does more than reproduce the problem at another level.

If a review body can simply adopt the determination below without engaging with material representations, replacing an Inner House appeal with internal review merely moves the rubber stamp.

The forthcoming procedures provide an opportunity to put that safeguard on a clear footing. The duty to engage with material representations should apply not only to the Determination Committee but also to any internal review. The decision should contain sufficient reasons to show how material issues capable of affecting the outcome have been resolved.

Likewise, where the fairness of a live investigation or an investigator’s interpretation of the governing legislation is credibly challenged, there should be a defined route to independent senior or legal consideration before the investigation simply continues to conclusion.

Reform should also look backwards

There is another aspect of reform which should not be overlooked.

It should not look only outwards and forwards. It should also look backwards.

If weaknesses in the existing process are identified while the new system is being designed, there is a legitimate question about decisions already produced under that process.

I am not suggesting that every historic complaint should be reopened. That would be neither realistic nor proportionate. There is, however, a strong case for a structured internal assurance review of past cases displaying identifiable procedural risk factors.

Those might include cases in which material evidence was available to the investigator but not to the parties; substantive concerns about investigative fairness were raised but not independently reviewed; requests for legal or senior intervention were returned to the investigator whose conduct or interpretation was being challenged; or material representations to a Determination Committee were answered simply by adopting the investigator’s reasoning.

The question is straightforward: if the reform process identifies weaknesses in the existing system, did those same weaknesses affect decisions already made?

One case cannot establish systemic failure.

The SLCC, however, holds the historic information capable of finding out.

Meaningful organisational learning cannot be confined to designing tomorrow’s procedures. If the reform process identifies weaknesses capable of affecting substantive fairness, the SLCC should also be prepared to ask whether those weaknesses affected decisions made yesterday.

Investigation or illusion?

I began by asking what an investigation by an independent complaints body should mean.

It cannot simply mean collecting documents, exchanging correspondence and producing a report.

Investigation requires curiosity. Where the evidence exposes another problem, it requires enquiry. Where material evidence is known to the investigator but not to one of the parties, it requires a process capable of ensuring meaningful participation. Where the investigation itself is challenged, independent determination requires something more than adoption of the investigator’s conclusions.

This case left me with three questions.

If a judge would not ordinarily determine a disputed issue using material which one party had never been permitted to see or answer, why should we be comfortable when an independent complaints body does so?

If an investigator’s interpretation of the governing statute and conduct of the investigation are themselves challenged, who independently investigates the investigator?

And finally:

If a Determination Committee can answer detailed representations simply by adopting the investigator’s reasoning, what is the Committee actually determining?

Those questions go much further than the outcome of one complaint.

In this case, relevant evidence emerged but was withheld from the complainer. The resulting evidential inequality was not resolved within the investigation. I expressly requested independent legal review of the investigator’s interpretation of the statute. Nothing subsequently provided to me demonstrated that such a review had taken place. Detailed challenges to the investigation were ultimately met by a Determination Committee which simply adopted the investigator’s reasoning. There was then no proportionate internal route by which that determination could be challenged.

One case cannot establish how every SLCC complaint is handled. It can, however, test whether the safeguards within the system worked when they were actually needed.

In this case, I do not believe they did.

So, having asked whether what occurred was genuinely an investigation or merely the appearance of one, I should answer my own question.

Investigation or illusion?

On the evidence of this case: illusion.

Mohammed Sabir is principal solicitor at MBS Solicitors, Edinburgh. The views expressed in this article are those of the author.