Justice Secretary Kenny MacAskill admits Law Society complaints process is flawed. Justice Secretary Kenny MacAskill has made a startling admission on the negative policy of long enforced 'adversarial' complaints practices operated by the Law Society of Scotland, which are widely thought to have saved many solicitors with poor regulatory records from client complaints over many years.
The Justice Secretary's insight into the way complaints have been poorly handled against lawyers by the Law Society is crucial in that Mr MacAskill now recognises and agrees with his Ministerial colleague John Swinney's constituent, Mr Stewart MacKenzie, that the current 'adversarial' approach of self regulatory complaints handling by the legal profession is widely prejudicial against clients, and not in the public interest.
Justice Secretary Kenny MacAskill claims the Scottish Legal Complaints Commission will operate under an ‘inquisitorial’ approach to complaints. Kenny MacAskill : "We are very confident that the Commissioners will agree with Mr Mackenzie that an inquisitorial approach is the best way to establish /analyse all the evidence and is less likely to place the complainer at a disadvantage." A remarkable admission from the Justice Secretary, which indicates the necessity of a more open & honest policy of 'inquisitorial' complaints investigation via the new Scottish Legal Complaints Commission, formed as a result of the Legal Profession & Legal Aid (Scotland) Act 2007. This startling admission from Mr MacAskill on the subject of regulation of the legal profession, is a first from a politician in Government, and seems to indicate the new SNP Scottish Government is now beginning to recognise the incredible scale of regulatory wrongdoing by the Law Society of Scotland, which has operated this 'adversarial' policy directly against the interest of clients, but for the protection of it's own solicitors, for so long.
Cabinet Finance Chief John Swinney hears from his constituent on former SLSO Chief and now SLCC Chair Jane Irvine’s criticisms of Law Society complaints procedures. Mr Stewart MacKenzie's query to the Justice Secretary via Mr Swinney, points out references from the 2006 - 2007 Annual Report from the Scottish Legal Services Ombudsman (pdf), specifically the following, where Jane Irvine, the current, and last Scottish Legal Services Ombudsman makes damning references to the Law Society's complaints handling procedures : The relevant sections of the Scottish Legal Services Ombudsman's 2006 - 2007 report quoted in Mr Mackenzie's letter to John Swinney MSP : Page 11 : "the Law Society of Scotland disregards the fact that their dury is to investigate, not run adversarial systems. It is certainly unacceptable in a day where modern complaints handling systems demand open responses to expressions of dissatisfaction"
Page 13 : "The Law Society of Scotland's duty is to investigate service complaints. In addition it has a role in protection of the public against inadequate legal services. I see absolutely no justification therefore for continuance of the manifestly adversarial systems under which consumers are forced to define issues and prove what went wrong"
Confirmation if any were needed then, from the office of the Scottish Legal Services Ombudsman that the Law Society of Scotland does indeed, operate an 'adversarial' system of complaints handling policy, totally against the public interest, and which basically sets out to protect lawyers against client complaints at every turn.
Former Legal Services Ombudsman and now Legal Complaints Commission Chair Jane Irvine tagged Law Society’s complaints system as ‘adversarial’. At the heart of this matter, as the Scottish Legal Services Ombudsman mentions, are the adversarial complaints procedures & policy put in place, to force the client to prove each & every point at every turn, with no help from the Law Society or legal profession, no outside help from anyone or any independent organisation, while the solicitor facing the complaint has the full resources of his legal training, the Law Society of Scotland, and various other organisations such as the Legal Defence Union, Law Care, and many more, all at the solicitors disposal to kill off any chance a client has of obtaining redress.
These 'adversarial' complaints procedures, which have allowed many solicitors within the legal profession to escape client complaints, while building up disgraceful regulatory records, are the principle design of the Law Society's infamous Client Relations Office under the Directorship of Philip Yelland, where complaints also see regular intervention by the Chief Executive Douglas Mill himself, whose touch of a complaint can seemingly blight a member of the public for life.
Holyrood’s Justice 2 Committee were told of the Law Society’s ‘adversarial’ complaints system. Curiously, Mr Mackenzie informed the Justice 2 Committee LPLA hearings of the fact that the 'adversarial' approach to complaints handling benefited the trained & skilled lawyer & the Law Society of Scotland itself, while putting a complainer at a severe disadvantage. Mr Mackenzie's case, which was considered by the Justice 2 Committee in it's deliberations on the LPLA Bill, also saw a major skirmish between John Swinney & Law Society Chief Executive Douglas Mill, who contradicted the terms of his own memos relating to interference in negligence claims made by Mr Mackenzie against several law forms. Douglas Mill denying such interference as Law Society policy does not allow it, but John Swinney producing Mr Mill's own memo to contradict his claim of innocence ... which then saw Douglas Mill 'swear on his granny's grave' in a less than convincing denial of his actions, clearly reflected in the terms of Mill’s highly controversial memo.
As it turned out, Holyrood’s Justice 2 Committee failed to understand the issue of 'adversarial' complaints handling, and failed to insert adequate protections in to the LPLA Bill before it passed into Law, which now leaves the Law Society of Scotland with the advantage of retaining the 'adversarial' approach to complaints handling of conduct issues, while the Scottish Legal Complaints Commission will investigate service issues via the 'inquisitorial' route - widely seen to be more honest, transparent, and of benefit to the public.
John Swinney questions Law Society Chief Executive Douglas Mill over Law Society’s interference in claims against crooked lawyers :
You can read about the amazing confrontation between Douglas Mill & John Swinney here : The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.
Justice Secretary MacAskill, went on in his letter to Mr Swinney to respond on the issue of possible conflict between the Scottish Legal Complaints Commission's practices and those of the Law Society of Scotland, assuring :
"... the Legal Profession & Legal Aid (Scotland) Act 2007 gives the Commission significant influence over the professional bodies in relation to their investigation and prosecution of conduct complaints. We are confident that the Commission will exert its influence when it considers that the professional bodies are acting in a manner which is not considered 'fair or proper' "
Such an 'adversarial' complaints policy operated by the Law Society of Scotland, clearly in favour of solicitors, and prejudicial by design against the client - which the Justice Secretary now recognises the existence of, is wholly unacceptable in any regulatory system which begs to be transparent, accountable and independent.
Clearly such a remedy to this extreme divergence in regulatory policy between the co-regulators of the Scottish legal profession must surely be to remove any regulatory function from the Law Society of Scotland, as it continues to demonstrate it cannot handle regulation in both the interests of it's own member solicitors, and the public.
The time is now right to remedy these failings of the Law Society of Scotland, taking into account and resolving the many cases over the years, and victims, who have long suffered at the hands of such poor regulation operated by the solicitors regulatory body.
The challenge is now there for Mr MacAskill and the Scottish Government to take up, and see that Scotland, gets a trustworthy, transparent, accountable, and dependable legal profession where honesty and quality legal services will be forthright, and the interests & rights of both the client and legal representatives fully and equally respected without the prejudice, deception and protection that clients have so long been used to when being forced to deal with the Law Society of Scotland.