Monday, May 22, 2006

Last words from former Scottish Legal Services Ombudsman condemn the Scottish legal profession

Famous last words ... from the Former Scottish Legal Services Ombudsman, Linda Costelloe Baker ... "This Bill is a mess" .... and she would be correct of course.

How unusual, for someone who has been concerned with the Scottish legal profession to come out and say this .... particularly when they have been appointed by the Scottish Executive (the Scottish Executive being well known for stifling change for so long in terms of complaints procedures operated by the Law Society of Scotland)... but how true Ms Costelloe Baker`s words are ....

Last week at the Justice 2 Committee, Ms Costelloe Baker answered questions on her duties and experiences in investigating complaints against how the Law Society of Scotland and Faculty of Advocates had investigated lawyers and advocates. However, the questions she was asked did not apparently give her such leeway to critisise the legal profession as much as she has done in her interview with "The Herald" Newspaper, printed below for your reading.

In Ms Costelloe Baker`s interview, she calls for the complete removal of self regulation of the legal profession - something we, as clients and complainers against crooked lawyers and advocates, have been doing since 1990.

Linda Costelloe Baker - "That is why the first step in this process has to be to have a more independent regulator, like the Financial Services Authority, which does not deal with complaints at all. That first step has not been taken. This bill is a mess. It tinkers with an already unsatisfactory position and does not put right fundamental problems such as who makes the rules. The (executive's) attempt to keep the professional bodies very closely involved by splitting off conduct complaints will increase costs and increase confusion. It's also very doubtful whether the required degree of cooperation between the commission and the professional bodies will actually work in practice."

Her statement mirrors exactly what we have been saying for so long, and something this Justice 2 Committee should address fully ... the right of self regulation of the legal profession has to be ended, completely ... and their role should be restricted to that of a trade union ... something I personally have said in my submissions to the Justice 1 Committee, the Justice 2 Committee, and in the past in press articles on the subject ... and something every single client of a solicitor who has had cause to complain about their actions to the Law Society of Scotland, would also agree with.

I also liked the part of the interview where Ms Costelloe Baker goes on to mention the difficulties people have with obtaining a lawyer to sue a lawyer - something which is, in reality, almost impossible to do.

Linda Costelloe Baker - "The justice minister has still not addressed my question of why people can't get a solicitor to act for them in a negligence action" ....

yes, well, this is the exact same reaction I and many others have got from asking the exact same question since 1994 to Scottish Secretaries of State : Ian Lang, Michael Forsyth, and First Ministers : the late Donald Dewar, John Reid, Henry McLeish, Justice Ministers : Jim Wallace & Cathy Jamieson, Msps & Mps : Murray Tosh, Euan Robson, Annabel Goldie, David McLetchie, Roseanna Cunningham, Christine Grahame, David Mundell, Archy Kirkwood, and civil servants from the likes of ... Malcolm Pringle, Mike West, etc ..

In Scotland, trying to get a lawyer to sue a lawyer, is impossible, and even though the Law Society of Scotland in latter years brought in a "Pursuers Panel" .. it is simply a fake.

My own experience in the case of trying to sue crooked solicitor Andrew Penman of Stormonth Darling Solicitors, Kelso .. is as good an example of this as any.. where the most senior officials of the Law Society of Scotland interfered in my case so much I could not even get my Legal Aid applications through to take legal action ... and I also found out that senior Law Society officials directly instruced my own solicitors not to proceed my case .... and then of course solicitor after solicitor refused to take on representing me in legal matters ... even in the death of my own mother at the hands of a negligent Borders General Hospital ... and events subsequent to that.

So, why can`t the Justice Minister answer the question why we can`t get a lawyer to sue a lawyer ? - well, maybe Cathy Jamieson continues to argue that this question is for the legal profession to deal with ... as they have always done .. `passing the buck` ... but with the former Scottish Office which went on to become the Scottish Executive giving the same hollow response for 16 years seems a bit tired ... it seems ... a bit of a fiddle, doesn`t it ? Maybe the legal profession don`t want the Justice Minister to answer the question .. and admit there is a problem in finding a lawyer to sue a lawyer ? - something which we, as clients of crooked lawyers, all know to be true.

The good news is, that, tomorrow, 23 May 2006, a good friend of mine, Stewart MacKenzie appears before the Justice 2 Committee to tell of his experiences at the hands of the crooked Law Society of Scotland, and I`m sure that Stewart will be able to tell the J2 Committee just how bad he, and all of us have suffered while the lawyers have literallly gotten away with murder.

As for me, well, according to a source at the Parliament itself, there was "considerable opposition to myself appearing before the Justice 2 Committee" .. something I always knew would be a problem ... so, I won`t be giving any testimony before the J2 Committee on this matter for now ... but of course, the Committee members can always read my blog .. if they are allowed to read it, of course ... and I have made my written submission, which I await to see on the Parliament`s website soon.

So, good luck to those who are allowed to speak as victims of the Scottish legal profession tomorrow, and here is the article from "The Herald", reporting their interview with Linda Costelloe Baker.

Former Ombudsman: ‘This bill is a mess’

SCOTLAND'S legal services watchdog for the past six years delivered her last word on the governance of the profession in an interview with The Herald last week. Linda Costelloe Baker's valedictory observations are provocative and will make for uncomfortable reading - not only for the Law Society of Scotland, but also for a Justice Department whose reforms of complaints- handling are aimed at bolstering public confidence.

Costelloe Baker made her final appearance as Scottish Legal Services Ombudsman at a Justice 2 committee hearing. Speaking afterwards, she was arrestingly blunt:

The Legal Profession and Legal Aid (Scotland) Bill is "a mess". Law firms who gripe that they will be deterred from offering certain services by a higher compensation threshold "shouldn't be in business". The role of the society and Faculty of Advocates, she insists, should be heavily circumscribed - with their right of self-regulation scrapped and responsibility transferred to an independent body.

The bill comes nowhere near to doing this, of course. The remit of the Scottish Legal Complaints Commission, which would be created by the bill, will be limited to addressing complaints of poor service by lawyers. Complaints alleging misconduct and the professional rules by which Scotland's 10,000 lawyers operate will continue to be determined by the society and sister body, the Faculty of Advocates.

Costelloe Baker caused a stir by reminding MSPs and the public in her annual report of the hopeless predicament faced by hundreds of Scots mis-sold an endowment policy by a solicitor.

Tens of thousands who bought endowment policies in England and Wales have already received payouts. By contrast, Scots who bought policies from solicitors before December 1, 2001, when the Financial Services and Markets Act came into effect, do not qualify for a deal from the Financial Ombudsman Service. They can seek compensation from the society, but only to a maximum of £1000.

People trapped by this loophole can sue their solicitor, of course - in theory. But how easy is it to find a lawyer to sue another lawyer in Scotland ? This is a question Costelloe Baker put to ministers 12 months ago and she never got an answer. The Office of Fair Trading has also raised the issue with the Scottish Executive.

"The justice minister has still not addressed my question of why people can't get a solicitor to act for them in a negligence action," Costelloe Baker pointedly observed.

Won't the new bill stop a scandal like endowment mis-selling from recurring? "No," says Costelloe Baker. "The new Scottish Legal Complaints Commission is not going to be a regulator and it is the regulator which sets down practice rules. People in Scotland who bought an endowment policy from a Scottish solicitor are far less protected. Yes, it could happen again.

"The commission can only assess a complaint against what is set down as adequate practice ? the Law Society decides that. And the Law Society decided (solicitors) didn't need to keep the relevant documents. So there was nothing to investigate.

"That is why the first step in this process has to be to have a more independent regulator, like the Financial Services Authority, which does not deal with complaints at all. That first step has not been taken. This bill is a mess. It tinkers with an already unsatisfactory position and does not put right fundamental problems such as who makes the rules. The (executive's) attempt to keep the professional bodies very closely involved by splitting off conduct complaints will increase costs and increase confusion. It's also very doubtful whether the required degree of cooperation between the commission and the professional bodies will actually work in practice."

Reform in England and Wales is more coherent, as regulatory oversight as a whole is being transferred to an independent board with the complaint-handling body accountable to the board. "Putting it bluntly, in Scotland the cart is being put before the horse," Costelloe Baker told Justice 2.

I suggest that Costelloe Baker's prescription would reduce the society's role to little more than that of a trade association. She does not demur, but observes:

"They can still do legal education and training, and advise the government on legislation."

The society has made political capital out of the ombudsman's findings that it has greatly improved its complaints-handling processes. Its "satisfaction rating" for complaints cases passed to her office reached a record 60% in 2005/06, an increase of more than 10% on the previous year.

These improvements are undeniable and might be construed as a compelling reason for leaving the society to get on with the job. Costelloe Bakerbridles at the suggestion. It is increased scrutiny by parliament, she believes, and the prospect of complaints-handling being removed which has concentrated the society's mind. Were the executive to backtrack on reform, she insists, the institution would simply revert to bad habits:

"There is little doubt that without the threat of legislative change the law society would, once again, be driven by its members' views and preoccupations."

Where is her evidence for such a statement ?

"You can find it in the annual report," she stresses. "It is now 12 years since my predecessor Garry Watson recommended that lawyers issue engagement letters (outlining, among other things, how fees will be charged). The society just kept saying no, no and again no until - whoops! - parliament is looking at us and then the answer is yes. The same applies to changes to complaints handling. For years they opposed an independent body and then - whoops again - parliament's looking at us so the answer is yes, we support that."

The society recently warned that small legal practices will have to cut back the services they offer if the executive presses ahead with plans to reform the profession. Parts of Scotland could become "legal advice deserts", it argued.

Under the new bill, Scots who receive poor service from their lawyers will be able to claim up to £20,000 in compensation, four times the present maximum. Law Society president Caroline Flanagan also told Justice 2 the cost of funding the watchdog, which will fall on solicitors, could prove a "crippling burden".

Costelloe Baker dismisses these points out of hand. Implicit within the society's argument is the suggestion that some small firms are presently so incompetent that they could be financially vulnerable to vigorous independent scrutiny. At the moment, firms are subtly protected because compensation claims must be pursued in the courts - if consumers can find a lawyer willing to take their case on. Court claims are "risky, potentially expensive and daunting" for the consumer, as Costelloe Baker points out in her annual report, while lawyers benefit from "playing on home ground".

"If the society is really saying that there are lots of rural solicitors who provide such poor service that there is a strong possibility that they will have caused £20,000 worth of loss to clients then why are they still in business ? If the alternative is that they have not had any claim against them because people are too frightened to make a complaint or can't get a solicitor to act for them...

"Similarly, if solicitors themselves are genuinely saying 'I will not take this or that form of business on because I might make a mess of it and have to pay £20,000' - then they should not be in business."

Costelloe Baker accuses the Law Society of pursuing a "double agenda", employing such arguments to bolster its parallel campaign for a rise in civil legal aid.

What of the mooted threat to small firms stemming from the cost of handling complaints?

Costelloe Baker stresses that large firms will continue to pay a disproportionate share of funding through the general levy.

She adds: "Any commercial organisation pays for the cost of handling complaints. Most of them absorb that cost and are happy to do so. Complaints should not be regarded as a separate industry - they are simply a user-friendly alternative to a court action."

Interestingly enough .. the former Legal Services Ombudsman - Garry Watson - supported self regulation as operated by the Law Society of Scotland.

Why would he support such a thing ? when clients were being ripped off wholesale by crooked lawyers and the Law Society were obviously letting their members off the hook.

Well ... I think Watson liked his position too much to take such action as Linda Costelloe Baker has ... and Watson for sure, would never have critisized the Law Society as Costelloe Baker did recently ...

Read on for an article from "The Scotsman" from 1999 on my case - showing Watson`s strange support for the devil (The Law Society) and note Watson`s opposing view to that of the Scottish Consumer Council - who carried out a survey and came to the conclusion that independent regulation of the legal profession in Scotland was a MUST.

Independent watchdog for lawyers proposed

Law Society of Scotland's internal system flawed, says Scottish Consumer Council -
Camillo Fracassini - Consumer Affairs Correspondent
The Scotsman 8 January 1999

Complaints against solicitors in Scotland should be investigated by an independent watchdog because self regulation is not working, the Scottish Consumer Council will say today.

The recommendation is part of a highly critical SCC report into the way complaints about solicitors are handled by the lawyers professional body, the Law Society of Scotland.

According to a survey made as part of the study, 40% of those who had used the Law Society of Scotland's complaint's procedure thought their complaint had not been handled fairly.

The Law Society, the solicitors professional body, is also resposible for investigating complaints.

In the stufy, 415 people were interviewed by the SCC. Even looking at those whose complaints against their solicitors were upheld, shows that a third felt they had been unfairly dealt with.

The report is also highly critical of solicitors.

Of clients who complaint to their lawyers, 16% said they were completely ifnored and only 2% were told they could refer the matter to the Law Society.

More than a fifth of solicitors refused to investigate complaints and 40% of people were ignored, "fobbed off", told to change lawyers, or advisd not to complain to the Law Society.

According to the survey, two fifths of complaints took between six months and two years to resolve and 17% took more than two years.

One complainant said "The whol experience was very disappointing. The Law Society was totally in favour of the lawyer. Dealing with the society was like talking to a wall"

Derdrie Hutton, the SCC Chairman, suggested "If consumers are to be confident that the procedures are entirely fair, we believe the research suggests that the way forward should be to establish an independent body to deal with complaints about solicitors in Scotland.

The SCC wants the Scottish parliament to review the Law Society's complaints procedure, with a vew to establishing an independent complaints body.

Solicitors should be made to give clients a letter of engagement, setting out how long the work will take, how much it will cost, and afvising how to complain if they are not happy with the service, it said.

The SCC added that all solicitors practices should also set up complaints procedures and appoint a specific solicitor to deal with complaints.

Martin Evans, the SCC director, said many people felt the system was biased in favour of solicitors : "They do not appear to trust the self regulatory process and do not trust the Law Society to look after the interests of consumers rather than its members. The lack of credibility of the current system doesn't serve consumers or the legal profession well".

Mr Evans added solicitors were not handling critisism positively : "Solicitors, as a profession, seem to feel threatened by complaints, rather than see them as something which can help them improve the service they provide."

Last night, Philip Dry, the president of the Law Society of Scotland, questioned the validity of the limited SCC survey and insisted self-regulation was still the best policy.

He said; "I continue to believe thata the society is best able to deal with client complaints which it does without cost to the public - and that any systen used shoud be open to public scrutiny and constantly adapted and improved to meet the needs of clients of Scottish solicitors.

"The society does not afree with the recommendations made to the Scottish parliament to set up an independent complaints handling body. The recommendation is not supported by the survey results nor is the suggestion that the current system is fatally flawed".

Mr Dry said the Law Society had significantly improved its complaints procedure since the SCC first recommended the establishment of an independent complaints watchdog in 1986.

In November, it named 11 new lay members to its complaints committee in a bid to tackle the perceived bias.

Between 1994 and 1997 the number of complaints that ended successfully in mediation or conciliation increased by 79% while the number f complaints only rose by 4%.

Gary Watson, the Scottish legal services ombudsman said he remained opposed to an independent body "While I endorse a number of the recommendations made in the report but I would disagree with the prinsiple recommendation for the establishment of an independent complaints body.

"My firm view is that as long as the Law Society is committed to improving the way in which it handles complaints then that is the best way forward for members of the public"

However, Peter Cherbi is still seeking redress more than two years after the Law Society of Scotland overturned its original decision to prosecute a solicitor he claimed was guilty of professional misconduct.

Mr Cherbi, from Jedburgh believes his father's £300,000 estate was effectively made worthless by the lawyers handling of his affairs.

While a Law Society investigation found that the solicitor should be prosecuted before a tribunal because of the serious nature of the case, the decision was overturned in favour of a reprimand after representations on the lawyer's behalf.

Mr Cherbi, who plans to sue the Law Society said "The Law Society of Scotland's complaints procedure is completely biased. There is absolutely no right of appeal for complainants and the ombudsman has no statutory powers - he an only make recommendations which may be refused by the society.

"There must be an independent regulatory for the legal profession with absolutely no ties to solicitors"


Archie said...

reading your blog and it updates ! you were involved with all those politicians and no one done anything ? what a fit up and conspiracy of silence

Anonymous said...

I agree with Costelloe Baker and you. The Law Society of Scotland should be restricted to being a trade body only in the best interests of the profession and the client. Same goes for your friends over at ICAS - we know all about their activities too ...