Calls for OFT to fine lawyers for market manipulation as Law Society & solicitors split on reforms to legal services

Firstly, to all of you who have recently send me information on your cases, I am progressing through them and will get back to you as soon as possible.

While trying not to be sidetracked on the debate into independent regulation of the legal profession in Scotland, I note this week, the media reports there are breaks between several legal firms and the Law Society of Scotland in terms of the profession's policy towards the deregulation of legal services in Scotland

It is of course, good to see diverging views from the legal profession on issues, where in the past, the Law Society of Scotland and it's inner circle of egos & dictators ruled the debate and how policy would be implemented against such major changes as the OFT now recommend

I can't but help wonder though, if this is a rerun of last year's strikes by the regional bar associations over the allegedly poor legal aid payments system, where it appeared that parts of the legal profession, namely the family law solicitors were taking initiatives on their own to boycott legal aid cases for increased legal aid payments, while the Law Society of Scotland supposedly stood by in the background, officially encouraging discussions, rather than strike, but all the while actually helping to arrange the case boycott strategy and sympathetic media publicity for the lot of legal aid lawyers, while making sure they slipped in a little part about requiring to retain the ability to control complaints against their legal colleagues ...

You can read some of the issues which cropped up in the legal aid case boycott here : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase .. so take note people, nothing is as it appears with the legal profession when it comes to policy being discussed in public ...

Getting back to the deregulation of legal services in Scotland, which is only starting to come into action now, after challenging FOI requests, revelations of interference from a former Lord Advocate, and of course the OFT making it's recommendations on the Which? 'super complaint' to open up access to justice, there remains significant questions to be answered on why, for the past 17 years, the relevant parts of Scottish Law which we have had sitting on the books since 1990 via the Law Reform (Misc Provisions) (Scotland) Act 1990, specifically Sections 25-29 were never enacted.

Of course, the simple answer to why Sections 25-29 were never enacted until March of 2007, lies with the Law Society of Scotland and the rest of Scotland's legal profession.

Simply - the legal profession didn't want the access to justice laws enacted, because it would destroy their monopolistic control over access to legal services, where up until now, anyone requiring legal services or needing access to the courts, must go through either an advocate or solicitor. With billions of pounds at stake in the business model of legal services in Scotland, there is little wonder the legal profession was protecting it's market monopoly for the past 17 years.

The planned opening up of access to legal services in the Law Reform (Misc Provisions) (Scotland) Act 1990 seems never to have had a champion of it's advantages .. the public had never been appraised of the intentions of the act to their full benefit ... the Scottish Legal Services Ombudsman had never made much comment on it either (despite the office of the SLSO actually being created from the same piece of legislation), and of course, successive administrations at the Scottish Executive & Scottish Office before it, failing to tackle the planned implementation of the reforms ... with even a serving Lord Advocate daring to interfere in the public's general right of access to justice, suggesting the reforming parts of relevant law be repealed.

However, now that things are out in the open, due in no small part to the campaign for independent regulation of the legal profession, the debate on access to legal services rages just as much as calls to completely remove any complaints & disciplinary procedures from the Law Society to the new Scottish Legal Complaints Commission - and that is a good thing, because it is clear the legal profession itself has stifled debate on tinkering with it's monopolistic business model for the past 17 years.

The Herald newspaper reports there are splits developing between some of the 'top law firms' and the Law Society of Scotland & Faculty of Advocates on how to proceed with the 'Clementi Reforms' which have come into force in England & Wales.

Good, it's about time the membership of the legal profession took a more proactive and independent view of things from the Law Society of Scotland, which after all, has led the Scottish legal profession to it's lowest standing in public esteem ever, with ever rising levels of complaints, poor standards of service, and an almost suspicion of any service on offer at all, given the lack of honesty, transparency & accountability which the public have long noticed over how lawyers do their business.

However, is this 'split' with the Law Society on the question of opening up access to legal services, genuine ? or purely for public consumption, while behind closed doors, the 'leading lights' of the Law Society & legal firms meet to carve up market control for themselves yet again, simply under another guise ....

The Law Society, particularly Douglas Mill, it's infamous Chief Executive, are known opponents of opening up access to legal services, and despite Mr Mill appearing on BBC News last week to 'welcome in the changes' with gritted teeth... the Law Society's underlying opposition to opening up the legal services market in Scotland remains as strong as ever .. with new tactics being adopted to control the qualifications needed to enter the legal services market ... currently controlled by, yes, the Law Society of Scotland.

There is also the question then of what the OFT should now do, in the wake of fairly conclusive evidence there has been market manipulation of legal services in Scotland for a significant period of time.

Last week, the OFT fined British Airways for market manipulation & price fixing... and since the legal profession has been engaged in the same actions for a much longer period of time - denying access to justice to those who have tried to get a lawyer to sue a lawyer, or pursue financial claims for loss against the actions of their solicitors, the OFT should now step in and fine the Scottish legal profession for their insidious market manipulation on access to justice.

In all of this debate & counter debate on access to justice, there has been no mention yet of the desire to tackle the sins of the past - where the membership of the legal profession has supported, or at least, allowed, the Law Society of Scotland to prejudice complaints to such a degree as to cause wholesale injustice to solicitors clients, ruined lives, lost health, lost homes & property, lost estates, lost funds, lost lives ....

Before the public can trust the legal profession again with honesty, transparency & accountability, there must be a genuine effort made to resolve the many cases of injustice that the legal profession itself has caused to thousands of clients over the years .. and if the legal profession itself doesn't want to put right those sins of the past, the likes of the OFT should take action to force such a move.

Herald article follows :

Top firms and Law Society split over plan to boost competition

IAN FRASER August 06 2007

A wedge has been driven between Scotland's largest law firms and their regulator, the Law Society of Scotland, over whether the country's legal services market should be opened to competition.

The rift became public following the publication last week of recommendations on lifting restrictions in the market for legal services in Scotland by the Office of Fair Trading. The OFT effectively gave the Scottish Executive until the December 2007 at the latest to come up with concrete proposals for reform of the legal services market.

Larger firms in Scotland, including Dundas & Wilson, last week told The Herald they warmly welcomed the OFT's recommendations - and, indeed, confirmed that they had been instrumental in shaping the consumer watchdog's thinking.

Alan Campbell, managing partner of Dundas & Wilson - which with 600 employees and annual turnover of £60.8m, is Scotland's largest law firm - said that he attended a high-level meeting with OFT officials alongside senior representatives from law firms McGrigors, Maclay Murray & Spens, Shepherd & Wedderburn and Pagan Osbourne six weeks ago.

He said that at the meeting, held on 13 June, there was "total unanimity" from the solicitors present. He said they supported having a level playing field between Scotland and England on deregulation of the legal profession and argued that anything else would be potentially both anti-competitive and against consumers' interests.

"At its heart, what we want is for lawyers to be able to share profits with non-lawyers subject to suitable regulatory safeguards," Campbell added.

What was happening instead was vested interests were working to ensure the current closed shop' is maintained said Campbell. He went on to attack the key plank in the arguments of Roy Martin, dean of the Faculty of Advocates and Douglas Mill, chief executive of the Law Society of Scotland.

Both have said that Scotland's legal services market is different from that in the rest of the UK and, therefore, requires different policies and structures. However, Campbell said: "Anyone who pretends that the market for legal services is substantially different in Scotland from that in England and Wales is simply kidding themselves. Jurisdiction on its own cannot define a market. If it does, it is anti-competitive."

He added that to claim that the services provided by law firms are in any way unique and incapable of being replicated elsewhere is "a fallacy."

Campbell questioned earlier claims from the Law Society of Scotland that a super-complaint from consumer advocate Which? was premature.

"In my view it was very timely indeed. Law firms need time to plan ahead and to mobilise," he said referring to the argument used by some that, since reforms intended to sweep away restrictive practices in the legal profession in England and Wales, do not take effect until 2010-11, there is no need for regulators and politicians in Scotland to act now.

"We need to know what the policy is going to be in Scotland, so that we can ensure we can make appropriate plans that ensure the sustainability of our own businesses," said Campbell. "There is already divergence between England and Scotland and each day it gets wider."

Asked if the Law Society's stance on deregulation smacks of protectionism, Campbell said it was, "difficult to see it otherwise".

Colin Gray, managing partner of McGrigors, echoed some of those sentiments. He said: "McGrigors welcomes the OFT's recommendations, which will help to create a level playing field across the UK legal market. Such liberalisation will enable providers of legal services to gain access to more capital, attract and retain talent and develop new service lines.

"What is important is that legal firms operating in the Scottish market are able to innovate and grow, as well as compete fairly with peer firms operating throughout the UK. We must avoid limiting choice for clients, which in turn may have a negative impact on the region's economy."

Alistair Morris, chief executive of Pagan Osbourne, also said he welcomes the OFT's recommendations. He has already said that he believes the implementation of Clementi reforms in Scotland would revolutionise the legal profession for the better.

He said: "The law remains a cottage industry with an anachronistic culture, and it is ripe for consolidation. If law firms were permitted to raise equity from external investors, it would hasten that process."

Campbell implied that for the Law Society to launch another "talking shop" on the issue of alternative business structures on September 28 is too little, too late. He said: "The OFT has effectively said to both the executive and the Law Society that they must up their game. However, they don't really appear to have got the message yet."

Mill, chief executive of the Law Society of Scotland, said: "What we must ensure is that Scotland seeks its own solutions and that access to justice and protection of the public remain core to any plans for reform.

"We are now planning a second conference in Edinburgh on September 28 to explore the opportunities which the creation of alternative business structures could bring to Scottish law firms, while also examining the regulatory issues they may present. We intend to bring forward our ideas on these issues later this year.

"We have continued our discussions with the Scottish Executive on the future of legal services in Scotland and Justice Secretary Kenny MacAskill has already spoken about Scotland's law firms being able to compete outwith their borders as well as within' and that change is necessary."

MacAskill and the Executive have 90 days to outline their approach to remove restrictions in Scotland.

Sean Williams, the OFT's executive director said: "I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."