Policy on suspension or postponement of conduct complaint investigations policy

The Legal Profession and Legal Aid (Scotland) Act 2007 (the Act) provides the statutory basis for the investigation of conduct complaints. It provides at Section 15 that the Society may suspend a conduct complaint investigation if it considers that the complaint, or any aspect of it, instead constitutes a services complaint. There is then a duty upon the Society to consult and liaise with the SLCC. The Act is silent regarding the suspension of investigations by the Society for any other purpose.

We obtained legal advice in the form of an Opinion from Counsel dated 14 July 2010, which concluded and advised that the Society nevertheless has both the power, and in certain circumstances the duty, to suspend investigations, outwith the specific statutory power to do so in the context of Section 15 of the Act.

Our policy is to postpone or suspend investigations where the circumstances reasonably require us to do so. We are satisfied, on the basis of the legal advice received, that we have both the power and the duty so to do in appropriate cases. It is inappropriate to define "appropriate" circumstances, as the question of whether it is appropriate to suspend or postpone an investigation will be dependent on the particular facts and circumstances of individual cases. Certain examples of when a suspension may be appropriate are outlined below.

The Society must balance the competing interests of the complainer, the solicitor, the public and the profession, including any other interested parties. It must act with fairness and in accordance with the law and principles of natural justice. Similarly a suspension or postponement will be uplifted and  the complaint investigation resumed when the circumstances dictate that it is appropriate so to do, taking into account the same factors.

At all stages after receipt of the complaint from the SLCC, staff must be alert to any circumstances whereby the investigation of a conduct complaint may prejudice the interests of justice, or otherwise constitute appropriate circumstances warranting the suspension or postponement of a conduct investigation. Where such circumstances arise, the procedure which should be adopted by the Reporter to the Professional Conduct Sub Committees (Reporter) is:

• Analysis of the situation and preparation of a brief summary of the circumstances for retention on the file.
• Summary to be discussed with a member of the management team.
• If the manager agrees that there appear to be circumstances warranting suspension or postponement then the file should be made dormant in the Visual Files case management system.
• After a suspension or postponement has been effected, the Reporter will write to the complainer, to the solicitor and to the SLCC confirming that a decision has been taken to suspend or postpone the investigation. The communications will set out the reasons for the decision and the circumstances in which the suspension or postponement may be lifted. The letters to the parties will also make it clear that they have the right (where that right exists) to make a handling complaint to the SLCC in respect of the decision.
• In some circumstances, before effecting a suspension or postponement, the Reporter may require to write to both parties indicating that the Law Society is minded to postpone or suspend, and seek representations on that intention. Any such representations should be taken into account by the Reporter and the manager before a decision is made to suspend or postpone the investigation.
• The Reporter will schedule in the Visual File, and conduct on a regular basis (and at least every 6 months), a review of any file which has been suspended, and may:
  • contact either or both parties for an update in circumstances
  • decide to retain the suspension
  • decide, after discussing with a manager, to lift the suspension

If at any time, outwith regular reviews, any party, including the SLCC, contacts the Reporter submitting that circumstances have changed or that a different view ought to be taken about existing circumstances, the Reporter will review such submissions and may decide, after discussing with a manager, to retain or uplift the suspension.

Where a suspension or postponement is uplifted, the Reporter will write to the parties confirming that to be the case, and setting out the reasons why the investigation has been reactivated. The Reporter will inform the SLCC that the investigation has been reactivated.

Examples of when a suspension may be appropriate may include (but are not restricted to):

• where a criminal prosecution of the solicitor is being undertaken in respect of the subject matter of the complaint;
• where civil proceedings which are directly relevant to the subject matter of the complaint are in progress;
• where an additional issue of complaint against the same solicitor arising from the circumstances under investigation has been identified, and referred to the SLCC to establish eligibility;
• bereavement of a close relative of one or other of the parties;
• temporary indisposition by virtue of illness or injury of one or other of the parties, subject to medical certification of same being exhibited.