I wish to make a complaint

Part 6 of the Legal Services Regulation Act 2015 creates a new complaints and disciplinary system for solicitors and barristers. Part 6 is expected to come into operation on the first day of the new legal year – 7 October 2019. This article provides an introductory overview of the new system as it applies to solicitors.

Expanded definition

There will be an expanded definition of misconduct. The Legal Services Regulatory Authority will deal with complaints and will have limited powers of sanction. Informal resolution of complaints about inadequate services and excessive costs will be encouraged.

The authority will have a Complaints Committee, which will have the power to make referrals to the new Legal Practitioners Disciplinary Tribunal. The tribunal will refer serious cases to the High Court for decision on sanction.

Being members of a regulated profession, solicitors are exposed to the occupational hazard of complaints being made against them, no matter how well their practice is run. For this reason, the new complaints and disciplinary system should be of interest to all solicitors.

Misconduct

The act introduces a new and extensive definition of misconduct, but does not significantly add to the effective scope of the current definition, except that
the following may be considered to be misconduct:

• An act or omission connected with provision of legal services that were, to a substantial degree, of an inadequate standard,
• An act or omission occurring otherwise than in connection with the provision of legal services justifying a finding that the legal practitioner is not a fit and proper person to engage in the provision of legal services.

New complaints system

The new complaints and disciplinary system is quite similar to the existing system. The most significant differences are the new institutions, with complaints about solicitors being made to the Legal Services Regulatory Authority rather than the Law Society, and with disciplinary cases being heard by the Legal Practitioners Disciplinary Tribunal rather than the Solicitors Disciplinary Tribunal.

The existing three-tier structure of a complaints committee, a disciplinary tribunal, with the High Court at the apex of the system, in essence remains the same. An administrative filtering and resolution process is also provided for.

Three-year time limit

A client may make a complaint to the authority about legal services of inadequate standard or excessive costs. There is a three-year time limit for making such complaints, which compares with the existing five-year time limit. Any person may make a complaint to the authority about misconduct. There is no time limit for conduct complaints.

Complaints may be made only to the authority, and the Law Society must refer any complaints it receives to the authority. Where the Law Society, in the exercise of its statutory functions, forms the opinion that an act or omission of a solicitor constitutes misconduct, it must notify the authority, unless the matter constitutes a breach of the Solicitors Accounts Regulations or should be investigated in connection with such a breach.

Relevant documentation

The authority may request the Law Society to investigate a complaint. The authority must notify the Law Society of complaints about solicitors and send relevant documentation to the Law Society.

The authority can investigate a legal practitioner where no complaint has been received and may continue to investigate a complaint, even where it has been withdrawn by the complainant.

Informal procedures

Complaints procedures are to be as informal as is consistent with the principles of fair procedures, and so that undue expense is not incurred.

The authority must conduct a preliminary review of a complaint to determine whether or not it is admissible. It must first notify the legal practitioner of the complaint and request his or her observations. The act allows the rejection of complaints that are frivolous or vexatious, without substance or foundation, out of time, or relate to a matter already decided under the act, the Solicitors Acts, or in civil or criminal proceedings. One effect of this is that complaints that have already been dealt with by the Law Society cannot be reopened.

Informal resolution

The authority is required to facilitate informal resolution of complaints relating to inadequate service or excessive costs, where the client and the legal practitioner agree. Where the parties do not accept the authority’s invitation of informal resolution or the attempt to resolve is unsuccessful, a written procedure is commenced.

In appropriate cases, the authority may issue directions. The range of directions available at this stage is similar to those available to the Law Society’s Complaints and Client Relations Committee.

Seeking review

Both the client and the legal practitioner may seek a review by a review committee of the authority’s decision. There is a right of appeal against the committee’s decision to the High Court.

Statements made in the course of attempting to resolve a complaint by the complainant or the legal practitioner may not be used in disciplinary proceedings. Costs arising from the attempt to resolve a complaint are to be borne equally by the parties, unless the parties agree otherwise.

Complaints and Divisional Committees

The authority will establish a Complaints Committee. This committee will have a lay majority, and a minimum of eight of its up to 27 members will be nominated by the Law Society. The committee will operate in divisions – referred to as Divisional Committees – with a lay majority and a lay chair. A Divisional Committee is to investigate complaints referred to the Complaints Committee by the authority.

The Divisional Committee will operate by written procedure. It may require the complainant to provide information and verify information by affidavit. The Divisional Committee may require the complainant and the legal practitioner to appear before the committee.

Representation

The complainant and legal practitioner may be represented by a person of their choice for the purposes of their appearance before the Divisional Committee, and the costs of such representation, if any, shall be borne by the person who requested such representation.

Where the Divisional Committee considers that a complaint is not one to be referred to the Legal Practitioners Disciplinary Tribunal, but that it warrants the imposition of a sanction, the committee may itself impose a sanction. At this stage, the range of sanctions available to the Divisional Committee is much wider than are currently available to the Law Society’s Complaints and Client Relations Committee. Effectively, this signals a significant shift in the dividing point between what is dealt with by a complaints committee and what is dealt with by a disciplinary tribunal.

Higher threshold

The new system appears to envisage a higher threshold of seriousness having to be reached before a matter is referred for disciplinary proceedings. The range of sanctions available to the Divisional Committee includes powers to make directions in relation to completing services, participating in professional competence schemes, waiving and refunding fees, complying with undertakings, withdrawing or amending advertisements, imposing monetary sanctions and, on consent, imposing conditions on the practising certificate.

Statutory obligation

In issuing directions with financial implications, the Divisional Committee is under statutory obligation to have regard to the means of the legal practitioner.

The legal practitioner (but not the complainant) has a right of appeal to the High Court. In addition, interestingly, the authority may appeal a decision of its own Divisional Committee to the High Court.

Application

Where the Divisional Committee considers that the act or omission is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal, it may make an application for the holding of an inquiry.

The authority is to publish six-monthly reports on the performance of its functions under part 6. Where the Complaints Committee has decided that the complaint merits the imposition of a sanction, and where the authority considers it appropriate, the name of the legal practitioner may be included in the report.

Disciplinary tribunal

The Legal Practitioners Disciplinary Tribunal will have a lay majority, and a minimum of six of its up to 33 members will be nominated by the Law Society. The chairperson of the tribunal is appointed by the President of the High Court and may be either a layperson or a legal practitioner. The tribunal will act in divisions, chaired by a layperson.

Applications to the tribunal may be made by the Complaints Committee or by the Law Society. This means that the current right of members of the public to make direct disciplinary applications will cease.

Objective

The tribunal has a statutory objective that its regulations be as informal as is consistent with the principles of fair procedures, and that undue expense is not likely to be incurred by any party who has an interest in the application. The tribunal may deal with cases on the basis of affidavits where the parties consent.

It may require submission of a written outline of the evidence expected to be given by witnesses, and there are provisions to discourage irrelevant evidence. Inquiries will generally be in public. There is provision for the tribunal to obtain expert advice or assistance.

Wider range of sanctions

The Legal Practitioners Disciplinary Tribunal has available to it a wider range of sanctions as compared with the Solicitors Disciplinary Tribunal. The range of sanctions includes powers relating to professional competence schemes, waiving or refunding costs, completing services, transferring documents, imposing conditions on a practising certificate, as well as a range of monetary sanctions.

In relation to financial sanctions, the aggregate amount of money that the legal practitioner can be ordered to pay may not exceed €15,000, and the tribunal is to have regard to the means of the legal practitioner.

There are provisions for appeal to the High Court and further appeal to the Court of Appeal.

High Court

Where the tribunal decides that the issue of sanction should be dealt with by the High Court, the tribunal is to make a recommendation to the High Court on sanction. The sanction powers of the High Court will be broadly similar to the High Court’s existing powers of sanction, and will include strike-off and suspension.

The act provides for determinations of the tribunal and orders of the High Court to be furnished to the Registrar of Solicitors and to be published.

Transitional arrangements

It is expressly provided that complaints about inadequate services and excessive fees received by the Law Society before the commencement of the new system will continue to be dealt with to conclusion under the existing system.

With conduct complaints, if the act or omission giving rise to the complaint occurred before the commencement of the new system, but the complaint is received after commencement, while it will be the authority that deals with the complaint, it will do so under the current definition of misconduct (rather than the new expanded definition contained in the act).