The Lord Chancellor's announcement that a commissioner would oversee the complaints-handling system in England and Wales has turned attention to similar upheavals in fellow common law jurisdictions, reports Chris Baker

When the Lord Chancellor announced the appointment of a Legal Services Complaints Commissioner (LSCC) to oversee complaints handling, it ruffled a few feathers - and not just in Chancery Lane (see [2003] Gazette, 2 October, 1).

The Law Society of England and Wales reacted with disappointment, and across the border in Scotland eyebrows were raised.

'When the Department for Constitutional Affairs (DCA) said solicitors will be regulated in a different way we had to ring them up and say Scotland is different,' a spokeswoman for the Law Society of Scotland recalls.

'It was not sufficiently clear and to give them their due the DCA did send out that clarification.'

It is a common misconception.

'This is not a criticism of the Law Society of England and Wales - it is always very clear on its juris-diction,' the spokeswoman adds.

'But when something is said about the Law Society people can assume it is about us as well.'

Different jurisdictions across the Commonwealth all have their own complaints-handling systems.

And several are in a similar state of flux to that in England and Wales.

The Law Society of Scotland's role as a regulator was reviewed by the Scottish Parliament, which reported a year ago.

That concluded that regulation should remain with the Law Society of Scotland in its entirety.

'But the parliament did make some suggestions for improvement, which we welcomed as it was about 20 years since the last review and we did feel it was time as the volume of work has moved on,' the spokeswoman says.

The Council of the Law Society of Scotland Act 2002 now allows the Scottish Law Society's council to delegate some decision making to committees with non-solicitors sitting on them.

There are now provisions for these committees to have equal numbers of solicitor and non-solicitor membership.

It has not caused the problems some thought it might.

'We do tend to find an assumption of a split between solicitors and non-solicitors,' the spokeswoman adds.

'Most of the distinction comes in defining complaints but you don't get lay members on one side of the table and solicitors on the other - it's not like that at all.'

All the complaints handling is done in the same building as the rest of the Law Society, with measures to avoid conflicts of interest.

For example, the society has several complaints committees with a general committee overseeing their work.

There is a complaints handler who acts as a gateway to decide whether a complaint has any basis but does not make judgements.

A report then goes to the committee for a final decision.

There is also an ombudsman as in England and Wales.

The Law Society of Scotland can order a firm to pay a maximum of 1,000 in compensation, and the Scottish Legal Services ombudsman can order the society to pay out a maximum of 1,200.

Complaints have increased slightly, but that is believed to be more to do with increased publicity for the service including a helpline, leaflets and information on the society's Web site.

In Northern Ireland, the regulator has fewer teeth than those in Britain.

'We do not have compensatory powers; nor do we have a legal services ombudsman,' Law Society of Northern Ireland assistant secretary Moira Neeson says.

'We have similar other inadequate professional services powers, including the power to reduce fees.

We also investigate conduct complaints and refer these to the Solicitors Disciplinary Tribunal in serious cases.'

Here, the society's work is overseen by a lay observer who reports to the society, government, and Lord Chief Justice on the nature of complaints being made and the manner in which they are dealt with.

He may also examine any written allegation made by a member of the public about the society's treatment of a complaint against a solicitor, and if a complaint includes serious issues of conduct and service it is referred to the tribunal.

What are complaints-handling systems like in the common law jurisdictions of the southern hemisphere? 'In New Zealand, lawyers obtain their practising certificates through district law societies and it is those district law societies which handle the complaints, at least in the first instance,' a spokeswoman for the New Zealand Law Society says.

But, in serious cases, there is a New Zealand Law Practitioners Disciplinary Tribunal.

'Districts can also have their own disciplinary tribunals,' the spokeswoman adds.

'The complaints committees and disciplinary tribunals are comprised of lawyers, so it is very much a case of peer review.

However, there is a system of lay observers who can review how a district has handled a complaint.'

But an act before the New Zealand Parliament - the Lawyers and Conveyancers Bill - is expected to go onto the statute book next year, and will replace the existing system.

Complaints will be handled at first by the district law societies, but they will then be referred to a new Legal Complaints Review Officer if the Bill is passed.

'The new Legal Complaints Review Officer will have the power to refer, overturn or substitute the decisions of the standards committees,' New Zealand justice minister Phil Goff said when he announced the Bill in June this year.

'This represents a response to strong concerns about the perceived lack of independence and sometimes inadequate response to complaints under the old system.'

Legal services commissioners already operate in Australia.

In New South Wales, Australia's largest law society district, the commissioner's senior officers assess complaints.

These can then be referred to a mediation and investigation officer, the Law Society, the Bar Council, or the Office of Fair Trading.

As in all the other jurisdictions mentioned, mediation between the complainant and the law firm is seen as the best course of action.

After all, most law firms have policies on complaints handling, even though the Lord Chancellor, Lord Falconer, has criticised English and Welsh solicitors for not doing enough.

Meanwhile, the Canadian Law Society cannot deal with complaints about fees - these have to be handled by the assessment office of the Supreme Court of Justice.

But cases about services are looked into by an investigations department which decides on whether complaints should be referred to the proceedings authorisation department.

That department then decides whether or not to send the complaint to a tribunal of three society members and one non-solicitor.

Back over the pond in England and Wales, it is not just the DCA that has an eye on the Law Society's Office for the Supervision of Solicitors (OSS).

The Society's own independent commissioner, former MI5 chief Sir Stephen Lander, has scrutinised procedures, and his recommendations went before the Society's council last week (see [2003] Gazette, 16 October, 3).

It is believed most of his proposals will be adopted in some form.

The Clementi review of the regulation of legal services - in which complaints handling will be one of the key planks - will report by the end of 2004.

'The Law Society's complaints handling needs to be more visible and accessible and our processes need to be more customer-focused,' an OSS spokesman says.

The Society currently has a call-centre style customer-assistance unit that handles calls to its complaints helpline.

Most calls come from the public as the maximum compensation of 5,000 would not tempt a large corporation unhappy with the legal advice it receives.

The average compensation is 'in the region of 300 to 400', the spokesman says.

Complaints are passed to case workers who write a report which would then go to an adjudicator or a panel depending on the seriousness of the complaint.

Once again, there is a tribunal and a Legal Services Ombudsman, who has been appointed to the new complaints commissioner role.

There is not much room for sharing of best practice between jurisdictions as some receive far more complaints than others.

'During this year, month on month, the number of new complaints has gone up remorselessly,' the OSS spokesman says.

'I don't think you would find any other jurisdiction handling that kind of volume.' Once again, it is believed increased publicity - such as the new customers' charter the society published in March this year - that has led to more complaints coming in.

But England and Wales have 'borrowed some ideas' from New South Wales, and representatives from other UK law societies are set to visit the OSS's Leamington office next month, the spokesman adds.

The OSS says a 21 million investment by the Society, extra staff, updated equipment and a new office in Holborn means it has just turned the corner in the backlog of complaints it had been plagued with in the past.

But, like his counterpart in New Zealand, Lord Falconer appears to be unhappy with the progress made.

The change and flux in the handling of complaints in England and Wales is being mirrored across the Commonwealth.

Chris Baker is a freelance journalist