Chamber and committees

Scottish Legal Complaints Commission submission of 27 September 2021

PE1857/C: Regulate the role of curator ad litem

I am writing on behalf of the Scottish Legal Complaints Commission to submit our views on the action called for in the above petition and our role in relation to the regulation of curators ad litem, as requested by the Committee at its meeting on 1 September 2021. Below we set out the role of the SLCC, some policy context, and the issues in relation to complaints about solicitors who may have been acting as a curator ad litem.

The SLCC’s role

The Scottish Legal Complaints Commission (SLCC) is an independent statutory public body providing a single point of contact for all complaints against legal practitioners operating in Scotland. We deal with around 1,200 complaints per year. We can award up to £20,000 compensation for inadequate service. Issues about the personal conduct of a lawyer are referred to the relevant professional organisation, and we have oversight of certain aspects of their complaints handlings processes. We have statutory duties to monitor trends in complaints and to oversee the operation of the indemnity arrangements of the profession.

The SLCC has no specific role in the regulation of, or in dealing with complaints regarding curators ad litem. However, because many people fulfilling that role may also be solicitors, we may have a role if a complaint is made that a solicitor acting as a curator ad litem has breached certain standards of service or conduct which apply to solicitors.

Context

As noted in the SPICe briefing provided to the Committee, the Scottish Parliament has recently considered some aspects of the regulation of curators ad litem as part of the debate on the Children (Scotland) Act 2020. For example, s17 placed a duty on Scottish Ministers to maintain a register of curators ad litem for certain purposes.

The SPICe briefing also noted that the Scottish Government has recently consulted on its proposals for a new regulatory and complaints regime for curators ad litem. The SLCC responded to this consultation, focusing on the potential crossover and interaction between the proposed complaints processes outlined in the consultation (for child welfare reporters, curators ad litem and solicitors appointed when a person is prohibited from conducting their own case), and the complaints and regulatory arrangements which already exist for lawyers in Scotland, as operated by the Scottish Legal Complaints Commission and Relevant Professional Organisations (specifically, the Law Society of Scotland and the Faculty of Advocates).

Our role in relation to complaints about curators ad litem, and issues arising

The Scottish Government consultation asked questions about how complaints would be dealt with about curators ad litem on the new register. In our response we noted that while the development of a dedicated complains process for those on the register might be positive, it could also lead to parallel investigations of a curator ad litem in relation to the same matter, both in that role, and in terms of their professional registration as a solicitor. These investigations could theoretically lead to different decisions, outcomes and sanctions being made against that practitioner.

In relation to the present system, when we receive a complaint about a solicitor who has acted as a curator ad litem, there are a number of issues. The main statutory focus of the SLCC is complaints by a client about their solicitor. In this context the closest to a client is the court, which appoints the curator ad litem. If the court was unhappy with their work, and raised a complaint, we’d have the widest discretion to investigate.

However, it is usually other parties who raise a complaint. In that context, we may be more restricted in what we can consider, and what information we can share with those parties about the complaint and any investigation we carry out.

These are now matters for Scottish Government to consider.

Conclusion

The legislation for the complaints system about lawyers, itself under review by Scottish Government, was not primarily designed to deal with people acting in other capacities, such as curators ad litem, so these challenges are perhaps not surprising.

As the Scottish Government considers how to proceed regarding the regulation of curators ad litem, we will continue to share our experience of complaints, investigation, and professional standards, to ensure that any interaction between a proposed new scheme and the existing complaints process for solicitors and advocates is fully understood and considered.

We would be very happy to provide any further information that might be helpful to the Committee in its consideration of this petition.