Tuesday, May 08, 2007

Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland

Reflecting the views of many victims of the monopolistic legal profession in Scotland, Which ? - a UK Consumer organisation, have made a "super complaint" to the OFT to ask for an inquiry into access to legal services in Scotland , which is currently the exclusive domain of solicitors & advocates.

Download a copy of the Which" "Super Complaint" here : Which? super-complaint on Scottish legal services (PDF: 220Kb)

As we all know, if you need to use legal services, you have to use a solicitor. If you need access to the courts, you invariably need to use a solicitor and an advocate too, depending on the nature of the case. If you don't use either, you don't get access to legal services, and you don't get access to court - as simple as that.

This is the grand monopoly the Law Society of Scotland & the Faculty of Advocates have maintained for their members for decades. A great money spinner for all, making sure that no one else can enter their business markets, but more importantly, also making sure that they decide exactly who has access to justice, and who has not.

The solicitors & advocates monopoly on legal services, was supposed to have ended during the 1990s, with the implementation of Sections 25-29 of the Law Reform (Misc Provisions) Act 1990, which was passed by the last Conservative Government.

However, looking back on the obvious lack of implementation of Sections 25-29, it now looks like those parts of the Law Reform Act (Misc Provisions) were only put in to appease criticism of how easy the legal profession enjoyed their unrestricted business model.

During the 1990s, lobbying from the legal profession and resistance from the likes of former Lord Advocate Lord hardie (who actually asked for delays to the implementation of those relevant parts of the Act, and even wanted Sections 25-29 repealed) kept the monopoly on legal services firmly in the money making hands of the legal profession - and no one did anything about it after that until someone made an FOI request to the Scottish Executive which saw some sticky revelations yet to be generally published.

I reported on these matters here : Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation and here : Scottish Executive drops FOI disclosure battle over restrictive access to Courts while thousands go without representation

Access to justice & legal representation is not just conveyancing services, wills & probate and other general duties of lawyers getting the benefit of wider access to legal representation, there is also the question on how to handle other legal matters, such as lawsuits, damages claims, and yes, negligence cases against professionals who give poor service to their clients, one of the best examples of that being the legal profession themselves, where lawyers are famed for protecting their own, or stringing out negligence cases against other professional bodies & their members who invariably are insured by the very same insurance firms which insure the legal profession .... and offer backdoor bonuses to kill off such actions.

From my own experience and campaign on the issue, time and again, people have been denied access to justice at the whim of the legal profession when someone has fallen victim to the growing band of crooked lawyers in Scotland who seem to get off every complaint thrown at them no matter how serious it is. I have documented my own case quite well on that in the past, and reported on others too .. all bearing the same similar plight of being denied access to justice, to protect the crooked within the legal profession.

The SNP's Justice spokesman, Kenny MacAskill, who may well be the next Justice Minister, doesn't favour these reforms, as he already said last week in the Herald newspaper
SNP says ‘Tesco Law’ is not suited to Scottish society
and Mr MacAskill, himself a solicitor and member of the Law Society of Scotland, has already gone on record as being hostile towards those who have suffered at the hands of his legal colleagues too : View from Holyrood

It seems therefore, the SNP certainly need a view change on this issue, as I reported here : It's time for Injustice to end, but will the SNP end Injustice in Scotland ?

Who indeed, could support a corrupt legal profession, which even brought in English LibDem peers to threaten our Scottish Parliament & Executive with an ECHR court action simply over the loss of their self given right to regulate their own colleagues and continue to let crooked lawyers off the hook from client complaints ?

Who indeed could support the leaders of a legal profession who author memos on interdicting & delaying negligence claims against solicitors, then lie about it in front of TV cameras & a Justice Committee, or send malicious letters to the Legal Aid Board, interdicting a financially ruined client's legal aid claim to start a case against a crooked lawyer ?

Who indeed could support a legal profession which uses an assault on one of their senior staff members as a public relations stunt to brief certain parts of the press, asking directly for named campaigners to be implicated and even name drop their critics to the Police, when actions reflect more on their own colleagues than anyone else ?

Only those who would benefit from such a racket, would support such ideals ... which are certainly not in the public interest.

We are all Scots after all, and we should all have access to justice without prejudice .. so, let us end the injustice and open out our legal services so everyone has access to justice, rather than letting the legal profession decide.

We must also look at the victims of the sins of the past of the legal profession too, where the Law Society of Scotland have got away with corrupt practice in prejudicing the handling, investigation & outcome of client complaints on an exponential level.

Petition PE1033 at the Scottish Parliament calls for a review of how people have for so long been denied justice at the hands of the legal profession in the field of complaints against solicitors & advocates.

You can also sign Petition PE1033

Article from the Herald to follow :

http://www.theherald.co.uk/news/news/display.var.1381429.0.0.php

Calls for OFT investigation over access to justice for Scots
Exclusive by LUCY ADAMS, Chief Reporter May 08 2007

A powerful consumer charity has asked for a formal investigation into concerns that Scots are not getting enough access to affordable justice and legal representation.

Which? has sent the Office of Fair Trading (OFT) a "super complaint" to recommend it addresses fears that the current regulation of legal firms is hindering the market, restricting choice and pushing up the price.

The move comes ahead of reforms being introduced south of the border which will allow banks and supermarkets to join forces with law firms and provide legal services.

Following a review by Sir David Clementi, organisations such as Tesco and the RAC should, from 2008, be able to offer legal services alongside sandwiches or roadside assistance. The changes, supported by the OFT, are intended to make the legal profession more responsive to consumer needs.

However, Which? believes the Law Society of Scotland, the Faculty of Advocates and the Scottish Executive have all demonstrated no appetite for exploring, let alone implementing, alternative structures.

Areas such as conveyancing, litigation in court and obtaining confirmation in executries must be undertaken by solicitors in Scotland. Other services such as will-writing can be done by non-solicitors, but that is usually not the case.

Which?, at the vanguard of revolutionising provision of legal services in England, is turning its attention to Scotland, which it believes is pushing up prices and limiting access for customers.

The OFT has 30 days to consider the super complaint and decide whether to investigate.

A Which? spokeswoman said: "People cannot instruct advocates directly and have to employ a solicitor to do so. We would want to see an independent body created to protect consumers in Scotland in relation to legal services."

Following moves to liberalise the regulations on legal firms south of the border, HBOS, which has two million customers, launched a new service offering "everyday legal products" to customers at what it claims will be considerably lower fees than those offered by high-street solicitors.

The service is being rolled out through the bank's Halifax arm in England and Wales. However, Joel Ripley, head of Halifax Legal Solutions, said last year there are plans to extend it to Scotland.

The Halifax service, which will include discounted conveyancing, will preparation and a 24-hour legal helpline, is also set to provide access to a website where customers can prepare their own documents, including tenancy agreements and letters of complaints about faulty goods. These will be reviewed by qualified lawyers.

Conveyancing in England and Wales will be done by HammondsDirect. In Scotland, it would be undertaken by a firm north of the border. Customers will pay an annual membership fee of £89 which will give them free access to the helpline.

John Campbell, QC, of the Oracle Chambers, said: "The Which? super complaint poses important questions for the way law is practised in Scotland, and opens up the potential for a much more open market in the provision of legal services. It should be welcomed by lawyers as a whole, and by the executive.

"Since these ideas appear to have been embraced south of the border, it is to be hoped the new administration will realise the twin goals of increased competitiveness among lawyers.

"This complaint takes a long, hard look at professional business structures, and finds that simple changes would generally introduce efficiencies, lower costs, and benefit consumer choice.

"Lawyers should look on these ideas as a challenge and an opportunity, not as an attack on their institutions."

Scotland's lawyers have been split on the Clementi review. Some have threatened to move their "brass plaques" south to help them find outside sources of capital and hire non-lawyers for simple jobs.

Others are far from enthusiastic about the prospect of English-style reforms north of the border. The Law Society of Scotland has stressed what it sees as the risks of allowing other businesses to own law firms. What, it asked, if crime organisations take over all the lawyers in a town?

and the story from Which? itself .... link in the headline :

Scottish legal services super-complaint

Which? has asked the Office of Fair Trading to investigate how legal rules in Scotland are working against consumer interests.

In Scotland there are restrictions on the ways that lawyers can work together and with non-lawyers, and consumers are not allowed to deal directly with advocates, (who have a similar role to barristers in England and Wales). We’re using our power as a designated ‘super-complainer’ to ask the Office of Fair Trading to look at how these restrictions are preventing consumers from getting the legal services they need. (More on Which?’s powers as a super-complainer’.)

Restrictions

Consumers in Scotland are, in the main, provided with legal services by members of two professional bodies – the Law Society of Scotland and the Faculty of Advocates - who regulate the legal profession in Scotland.

The Law Society of Scotland does not allow non-lawyers to own a legal firm and prevents solicitors forming a legal relationship with non-lawyers with a view to offering professional services, for example setting up a joint practice with an accountant.

The Faculty of Advocates compels its members to practice as sole traders and prevents them from working with other advocates, solicitors or others to provide legal services. Faculty rules also mean that people cannot instruct an advocate without first instructing a solicitor.

Consumer harm

These restrictions work against consumers as they prevent lawyers from innovating to meet the needs of their customers. Moreover, service providers are unable to use new business structures to become more efficient, which could lead to lower prices for consumers. The fact that people cannot instruct advocates directly can lead to unnecessary legal work and ultimately higher prices.
What changes are needed?

We believe that most existing restrictions can be removed without new legislation, but we recognise that allowing non-lawyers to get involved in the Scottish legal services market will require regulation to protect consumer interests.

A new Scottish Legal Services Board should be established, independent of the legal profession, and of government, ultimately responsible for regulation of the Scottish legal services market. It would either directly regulate solicitors, advocates and the third party entrants to that market, or it would oversee regulation by the Society and the Faculty to ensure that their rules facilitate alternative business structures, enable direct access of consumers to advocates or allow third party participation in the market.

Super-complaint

The Office of Fair Trading has 90 days to respond to our super-complaint and decide whether to recommend removal of the restrictions on the legal services market in Scotland.

10 comments:

Archie said...

Hi Pete

Both barrels as usual ! good one again ! looks like people are listening !

Trev said...

omg someone hatee lawyers more than me !

well done for doing something about it and keep up the good work !

Anonymous said...

Maybe Mr MacAskill will argue the OFT cant look into his solicitor colleagues business because its based in England ?

Anonymous said...

I'd say from the artile in today's Herald, you are one of those behind the Which? complaint.Correct ?

Anonymous said...

Better get writing to the OFT then Peter !

Anonymous said...

now now peter you will cause douglas mill to have a heart attack going on like this

Anonymous said...

The only people to blame for this mess is the Law Society themselves.Too busy spending our subs on themselves and against the likes of you to care anything about public perception or trust.

gordon said...

I completely agree with your comments in the Herald on this and the lawyers against the OFT stories.

I hope people will write to the OFT with their own experience of using crooked lawyers

Anonymous said...

Mr Cherbi

I read your blog often and find the content quite shocking but reflective of how people feel about their solicitors.

I am concerned about many points you raise, as I am currently a serving member of a complaints committee of the Law Society and I can tell you that nothing has really changed much in my view since your complaint against Mr Penman was addressed several years ago.

You seem well informed of developments in the legal profession but would do well to emphasise the ill feeling by solicitors against their clients more than you currently speak of.I hear and see a lot of outright hostility towards complainers when complaints are presented to committees.You should report this too.

Peter Cherbi said...

# anonymous @7.24pm

I think most people are now aware lawyers hate their clients after a complaint has been made, and will do anything to obstruct a client or intimidate them over that complaint.

If you would email me we could talk about this further in complete confidence.