Levy & McRae Solicitors LLP against the Scottish Legal Complaints Commission (Court of Session)

Factual and Procedural Background

This appeal arises from a decision by the Scottish Legal Complaints Commission ("the Commission") concerning complaints made against a solicitor, referred to here as the Appellant, a law firm, by a third party, the publisher of a major newspaper ("the Complainer"). The Complainer lodged multiple complaints about the conduct of one of the Appellant's partners, relating to his communications with journalists about his former client's involvement with a company awarded government contracts during the COVID-19 pandemic.

The complaints were referred by the Commission to the Law Society of Scotland ("LSS") for investigation. The Appellant challenged this referral, arguing that legal professional privilege ("LPP") prevented the disclosure of relevant information and that proceeding with the complaints was unfair and without merit. The appeal was heard under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007.

Legal Issues Presented

1. Whether the Commission erred in law by referring complaints for investigation despite the existence of legal professional privilege preventing disclosure of relevant material.
2. Whether the Commission was required to resolve issues of privilege before determining complaint eligibility.
3. Whether the Commission acted unfairly by implying the Appellant should seek waiver of privilege from the former client.
4. Whether the Commission correctly applied the statutory test for complaints that are frivolous, vexatious, or totally without merit.
5. Whether Articles 6 and 8 of the European Convention on Human Rights are engaged in the context of professional disciplinary complaints and whether procedural fairness was compromised.

Arguments of the Parties

Appellant's Arguments

• Legal professional privilege is a fundamental right belonging to the client and cannot be overridden implicitly by the 2007 Act.
• The Commission failed to make a positive determination that the complaints were totally without merit and did not sufficiently investigate the facts, particularly regarding privilege.
• The entire solicitor's file and communications are privileged; therefore, the Commission erred by suggesting some material might not be privileged.
• It was unfair and inappropriate for the Commission to imply that the Appellant should seek waiver of privilege from the former client, especially given their conflicting interests.
• Without access to privileged material, the Appellant cannot present a proper defence, rendering the complaints process unfair and in breach of procedural rights.
• The Commission should have applied to the court for a determination on privilege rather than remitting the complaints for investigation.
• The Appellant did not have a duty to independently verify the truth of the client's instructions or the facts underlying the complaints.

Respondent's Arguments

• The Commission's role is limited to a sifting function to determine eligibility, not to adjudicate on the substance of complaints.
• The Commission lawfully assessed eligibility without access to privileged material and was not required to resolve privilege issues or seek court determinations at this stage.
• The Commission did not err by considering the possibility of implied waiver, given the former client's public statements.
• It was not the Commission's role to approach the client regarding waiver of privilege nor to assess the fairness of any subsequent investigation.
• Articles 6 and 8 ECHR are not engaged at the eligibility stage because no determination of civil rights or obligations is made.
• Complaints 6-11 could be resolved without privileged material as they concern the tone and content of emails rather than privileged communications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SLCC v Murray [2022] CSIH 46, 2023 SC 10	Legal professional privilege applies to solicitor-client communications relating to advice; client owns privilege.	Confirmed that privilege protects communications and that a solicitor cannot disclose privileged information without client waiver.
Law Society of Scotland v SLCC [2010] CSIH 79, 2011 SC 94	The Commission's role is to sift complaints, not determine them; low threshold for referral unless complaint is totally without merit.	Supported the Commission's limited investigatory role and emphasized the high threshold for dismissal at eligibility stage.
AS v Scottish Legal Complaints Commission [2020] CSIH 19, 2020 SC 443	Clarifies the Commission's sifting function and the approach to determining if complaints are totally without merit.	Reinforced that the Commission should not substitute its view for the professional body's on substantive matters.
Scottish Lion Insurance Co Ltd v Goodrich Corporation [2011] CSIH 18, 2011 SC 534	Privilege can be lost where confidentiality is lost; implied waiver arises from inconsistent conduct.	Applied to assess whether the former client's public statements might constitute implied waiver of privilege.
University of Dundee v Chakraborty [2023] CSIH 22, 2023 SC 297	Implied waiver of privilege determined objectively by conduct inconsistent with maintaining confidentiality.	Supported the view that implied waiver is a matter for investigation by the professional body, not the Commission.
R v Derby Magistrates Court, Ex parte B [1996] AC 487	Legal professional privilege is fundamental to the administration of justice and protects confidential legal advice.	Emphasized the importance of privilege and the need to protect confidential communications between client and lawyer.
McSparran McCormick v SLCC	Solicitors must critically scrutinize serious allegations before advancing them, not merely accept client instructions at face value.	Informed the court's view on the professional conduct expected of solicitors when making factual assertions on behalf of clients.
Prebble Television New Zealand Ltd [1995] 1 AC 321	Fairness in legal proceedings and investigations requires parties to be able to present a proper defence.	Referenced in relation to fairness concerns arising from inability to access privileged material during investigation.
Hamilton v Al Fayed [2001] 1 AC 395	Procedural fairness requires that a party must be allowed to respond to allegations and present a defence.	Supported the argument on procedural fairness and the risks posed by privilege to a fair investigation.

Court's Reasoning and Analysis

The court carefully examined the statutory framework under the Legal Profession and Legal Aid (Scotland) Act 2007, particularly the Commission's limited role in sifting complaints under section 2(4)(a). It emphasized that the Commission's function is to determine whether complaints are frivolous, vexatious, or totally without merit, not to undertake detailed investigations or adjudications.

The court acknowledged the fundamental nature of legal professional privilege, reaffirming that it belongs to the client and protects confidential communications relating to legal advice. However, it concluded that the Commission was correct to treat issues of privilege as matters for the professional body (the LSS) to address during investigation, not at the eligibility stage.

The court found no error in the Commission's approach to the possibility of implied waiver of privilege, given the former client's public admissions about her involvement and legal advice. It noted that whether privilege applies or has been waived is a question for the LSS and, if necessary, the courts, not the Commission at the eligibility stage.

Regarding the merits of the complaints, the court held that the Commission had sufficient material, including the former client's public statements, to conclude that the complaints were not totally without merit. The Commission was entitled to refer the complaints for investigation rather than dismiss them outright.

The court also considered the Appellant's argument that he had no duty to verify the truth of his client's instructions and that some complaints could be resolved without privileged material, focusing on the tone and content of emails to the press. It agreed that these complaints might be capable of resolution without access to privileged information.

The court rejected the contention that the Commission had erred in law or acted unfairly, emphasizing the institutional expertise of the Commission in its statutory role and the proper division of functions between the Commission and the professional body.

Holding and Implications

The appeal is refused.

The court upheld the Commission's decision to remit the complaints to the Law Society of Scotland for investigation, finding no legal error or unfairness in doing so despite the existence of legal professional privilege. The decision confirms that the Commission's role is limited to a preliminary sifting of complaints and that issues of privilege and detailed investigation are matters for the professional body. The ruling clarifies the boundaries between the Commission's eligibility function and the professional body's investigatory function, reinforcing the protection afforded by legal professional privilege while recognizing the procedural framework for handling complaints against solicitors.

No new precedent was set beyond affirming existing principles regarding the Commission's role, privilege, and complaint handling under the 2007 Act.