Legal Profession and Legal Aid (Scotland) Act 2007

JurisdictionScotland
Citation2007 asp 5


Legal Profession and Legal Aid (Scotland) Act 2007

2007 asp 5

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 14th December 2006 and received Royal Assent on 19th January 2007

An Act of the Scottish Parliament to establish the Scottish Legal Complaints Commission; to make provision as regards complaints against members of the legal profession in Scotland and other matters concerning the regulation of that profession; to make provision in connection with the administration of the Scottish Legal Aid Fund, including a register of advice organisations in connection with advice and assistance; and for connected purposes.

1 The Scottish Legal Complaints Commission

Part 1

The Scottish Legal Complaints Commission

Establishment

Establishment

S-1 The Scottish Legal Complaints Commission

1 The Scottish Legal Complaints Commission

(1) There is established a body to be known as the Scottish Legal Complaints Commission (referred to in this Act as "the Commission").

(2) Schedule 1 makes further provision about the status, constitution, proceedings etc. of the Commission.

Conduct or services complaints against practitioners

Conduct or services complaints against practitioners

S-2 Receipt of complaints: preliminary steps

2 Receipt of complaints: preliminary steps

(1) Where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2)—

(a) suggesting—

(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;

(ii) that a conveyancing practitioner or an executry practitioner has been convicted of a criminal offence rendering the practitioner no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner,

(a complaint suggesting any such matter being referred to in this Part as a "conduct complaint");

(b) suggesting that professional services provided by a practitioner in connection with any matter in which the practitioner has been instructed by a client were inadequate (referred to in this Part as a "services complaint"),

it must, subject to subsection (3) and sections 3 and 4 and any provision in rules made under section 32(1) as to eligibility for making complaints, take the preliminary steps mentioned in subsection (4).

(2) The persons are—

(a) as respects a conduct complaint, any person;

(b) as respects a services complaint—

(i) any person who appears to the Commission to have been directly affected by the suggested inadequate professional services;

(ii) the Lord Advocate;

(iii) the Advocate General for Scotland;

(iv) any judge (including a sheriff);

(v) the Auditor of the Court of Session;

(vi) the Auditor of any sheriff court;

(vii) the Scottish Legal Aid Board;

(viii) any relevant professional organisation.

(3) The Commission is not to take the preliminary steps mentioned in subsection (4), and is not to take any further action under any other provision of this Part, in relation to any element of a conduct complaint which is about a practitioner acting in a judicial capacity in a court or tribunal specified by order by the Scottish Ministers.

(4) The preliminary steps are—

(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;

(b) where the Commission determines that the complaint is any or all of these things, to—

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit (or two or all of these things).

S-3 Existence of specified regulatory scheme

3 Existence of specified regulatory scheme

(1) Where any element of a complaint referred to in section 2(1) is capable of being dealt with under a specified regulatory scheme, the Commission is prevented from dealing with the element but only to the extent that the element is capable of being dealt with under the specified regulatory scheme.

(2) Where the circumstances referred to in subsection (1) apply, the Commission must give notice in writing to that effect to—

(a) the complainer and the practitioner;

(b) such other persons as may be specified by the Scottish Ministers by order.

(3) Notice under subsection (2) must specify under which specified regulatory scheme the Commission considers the element is capable of being dealt with.

(4) Where the circumstances referred to in subsection (1) apply, notice under subsection (2) must in addition specify that the fact that the Commission is prevented by subsection (1) from dealing with the complaint to the extent that the complaint is capable of being dealt with under the specified regulatory scheme does not prevent the Commission taking the preliminary steps referred to in section 2(4) and dealing with the complaint under any provision of this Part to the extent that it is able.

(5) In this section "specified regulatory scheme" means a scheme specified as such by the Scottish Ministers by order.

S-4 Complaint not made timeously or made prematurely

4 Complaint not made timeously or made prematurely

(1) Where a complaint referred to in section 2(1) is not made timeously, the Commission is not to take the preliminary steps referred to in section 2(4) in relation to it, and is not to take any further action under any other provision of this Part (except this section), in relation to it.

(2) Where a complaint referred to in section 2(1) is made prematurely, the Commission need not take the preliminary steps referred to in section 2(4) in relation to it, and need not take any further action under any other provision of this Part (except this section), in relation to it.

(3) For the purposes of subsection (1), a complaint is not made timeously where—

(a) rules made under section 32(1) fix time limits for the making of complaints;

(b) the complaint is made after the expiry of the time limit applicable to it;

(c) the Commission does not extend the time limit in accordance with the rules.

(4) For the purposes of subsection (2), a complaint is made prematurely where—

(a) the complainer has not previously communicated the substance of it to the practitioner, the practitioner's firm or, as the case may be, where the practitioner is an employee of another practitioner that other practitioner (referred to in this Part as the "employing practitioner") and given the practitioner, the firm or the employing practitioner what the Commission considers is a reasonable opportunity to deal with it;

(b) rules made under section 32(1) either—

(i) do not provide for circumstances in which the Commission will take the steps and further action referred to in that subsection; or

(ii) do provide for such circumstances but none is applicable in relation to the complaint.

(5) Where the circumstances referred to in subsection (1) or (2) apply, the Commission must give notice in writing to the complainer and practitioner to that effect.

(6) Where the circumstances referred to in subsection (2) apply, notice under subsection (5) must specify whether or not the Commission is proceeding to take the preliminary steps referred to in section 2(4).

S-5 Determining nature of complaint

5 Determining nature of complaint

(1) Where the Commission proceeds to determine under section 2(4) whether a complaint is frivolous, vexatious or totally without merit and determines that it is none of these things, it must determine whether the complaint constitutes—

(a) a conduct complaint;

(b) a services complaint,

including whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of these categories and if so which of the categories.

(2) Where it appears to the Commission that the complaint may constitute both—

(a) a conduct complaint; and

(b) a separate services complaint,

it must consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation on the matter before making a determination under subsection (1) as respects the complaint.

(3) A relevant professional organisation must co-operate and liaise with the Commission in relation to subsection (2).

S-6 Complaint determined to be conduct complaint

6 Complaint determined to be conduct complaint

Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must—

(a) remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint);

(b)give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination and specifying—

(i) the reasons for the determination;

(ii) that the conduct complaint...

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