Michael Scott’s reflections on complaints handling

Mike, you were the very first Lay Complaints’ Commissioner for the Bar from 1997 to 2006. After your distinguished military career, including I notice being the Governor of Edinburgh Castle, how did you discover that the post of Complaints’ Commissioner had been created and what made you apply?

I saw it advertised in The Times. It seemed to me to be a procedure involving a non-legal, common-sense approach to problems; dealing with matters governed by strict rules; answering to a disciplinary committee and, from time to time, handling disappointed complainants or barristers.

You have written a book about your experience – Minding the Law. Is this the first book you have written and why did you want to write about your experiences?

No, I’ve written four previous books, mainly on individuals in history with a strong military background. This one started as a chapter in the book I’m writing for my granddaughter but then took on a life of its own.

The Lay Complaints’ Commissioner was a new post created by the Bar Council. How did it differ from the previous system?

To some extent the previous system was, certainly in the eyes of the public, seen as barristers dealing with barristers.

We all know about the need for confidentiality in dealing with complaints. Did this give you any problems in writing your book and how did you deal with them? Did any complainants or barristers permit you to use their real names?

I was very conscious of confidentiality, so I only name one complainant, a colourful character, who gave me permission to do so. Nor are barristers named except one who wrote a book on how to defend yourself as a barrister if disciplined, and the excellent member of the Professional Conduct Committee (PCC) who defended me in court. Others identified are those involved in the difficulties over the Iraq War whose names were already in the public domain.

By 1996, a new category of professional failing had been introduced called Inadequate Professional Service? What was IPS and how did it differ from Professional Misconduct?

IPS was designed to cover breaches of the Code which might not be considered serious enough to merit a finding of professional misconduct. Examples included delay, rudeness, late attendance at court and similar behaviour which caused worry and inconvenience to the lay client. Remedies for IPS ranged from a formal apology from the barrister to the lay client, reduction in fees and compensation up to £2,000.

How did you decide which complaints disclosed prima facie evidence of IPS or misconduct and which were misconceived or frivolous?

Unless the complaint was complete nonsense, my initial action was to send the papers to the barrister concerned and ask for their comment. I did the same with their instructing solicitor. On receipt of their replies, I could make a decision as to whether it deserved dismissal or whether I needed professional help. If the latter, I went to a member of the PCC for advice. Sometimes that came back suggesting dismissal, with grounds for doing so, or said there was something in it. It was then referred to the PCC.

You are a very distinguished person, but not a lawyer by training. How did you deal with complaints that involved legal issues?

I had a very good team of Executive Secretaries with wide experience, together with a pair of in-house solicitors. So, they would be my first port of call for assistance and discussion. Then I would approach a member of the PCC with the right area of expertise.

What did you find irritated the public most about barristers and do you have any tips as to how barristers can make complaints less likely?

As far as the barristers were concerned, I used to give lectures and write articles for Counsel on how to avoid my clutches. For example:

Courts: the courts are bread and butter to you, but to your client they are terrifying places even in the cosiest judge’s chambers, and they wish to leave them as quickly as possible – hence maybe losing concentration. So ensure your client is listening and actually taking in what you are saying. Don’t talk ‘over’ your client to your instructing solicitor or talk loudly in public places about their private affairs.

Consent orders: if there is any doubt in your mind that your client is being fluffy, get them to sign the draft. So often, when the client eventually sees the typed version, they say ‘I never agreed to that!’

Financial outcome: Ensure your client knows exactly what the deal is, down to the last penny.

Negotiation: Much of your work, quite properly, will be negotiating with the other side to reach agreement where possible. Explain that it is often better to avoid actually going into court if possible.

Child contact: Make absolutely certain that you and your client totally understand each other when negotiating time/place of, say, pick-up; and who has the child for how long.

Generally: Remember that once a barrister, always a barrister unless you are disbarred.

Did you have any complainants or barristers who would not accept your findings and how did you handle that? Did you form any friendships with complainants?

Many complainants refused to accept my decision and that was very understandable; you have reached the end of the road in your devastating problem and all Scott does is push you over the precipice. Barristers, on the whole, knew the angles and if they had erred, so I had very few bad reactions. Curiously, I did, occasionally, strike up a friendship with a complainant, in the longest distance terms.

Did you have a good relationship with the Legal Services Ombudsman?

Yes. Most of my time it was Zahida Manzoor. She was very fair and on the few occasions she criticised, it was justified. We got on well but we were careful of each other; an armed neutrality.

You were, in a way, a bridge between the old way of dealing with complaints and the modern regulatory system where chambers themselves have to investigate what was originally IPS? Do you think either the old or the new has anything to learn from what you experienced?

I have no direct experience of the new system but, from reports, it seems to me to be more impersonal and bureaucratic than when I handled complaints.

Finally, Mike, you were a much liked and respected Commissioner with an exceptional gift for communication. Did you enjoy your nine years working with us and our clients?

Yes. I did enjoy it. I was working with people of very high standards and integrity, softened with understanding and compassion. Also with that key ingredient, a sense of humour.