Law Society public interest debate masks lawyers control of access to justice

The Law Society of Scotland, Scotland's notoriously prejudiced self regulator of solicitors, is staging a debate this week on the future of the legal services market in Scotland.

The debate, is imaginatively titled "The Public Interest - Delivering Scottish Legal Services", and is being held on Friday September 28, at the Weston Link, National Gallery of Scotland. If you want to go along, you can locate the venue HERE. Don't forget to register with the Law Society for attendance by contacting the Law Society here : update@lawscot.org.uk or telephoning on 0131 476 8201.

The odd thing is though - the Law Society don't want the public to attend, least of all any of those who may have had bad experiences with Scottish lawyers ... so its a public interest debate, without the public interest ... typical of the Law Society, hold a debate and control what's being debated.

I covered this 'public interest' debate in an earlier post, where the Herald newspaper also revealed that while speakers were invited to make their opinions & ideas known, the Law Society leadership had their own policies to follow, rendering this Friday's 'experience' little more than a talking shop, which many even in the legal profession widely acknowledge themselves to be the case.

My earlier article : Law Society Chief - Debate legal services reform but lawyers must retain control of the legal profession

Law Society Chief Executive Douglas Mill, infamous for his anti-client policies over the past nearly two decades which have coincidentally, seen the Scottish legal profession fall to it's lowest levels of public trust & respect, has stated that while ideas can be talked about over access to legal services, the Law Society must control who enters the legal profession to limit competition once more - the latest idea for retaining control of the legal services market monopoly which now faces break up after many years of campaigning and the recent intervention of the Which? "super complaint" and the OFT's recommendations for reform of access to legal services, which are yet to be answered substantively by the Scottish Government.

Douglas Mill's argument for controlling entry to the legal services market revolves around maintaining what he claims is 'quality legal services' - but in truth Scotland has never had 'quality legal services' which the public can trust, certainly not while the Law Society of Scotland have regulated complaints against their own member solicitors (at the rate of 5000 plus complaints a year against 9,500 solicitors, for well over a decade), and certainly not under the near 20 year old administration of the Client Relations Office by Philip Yelland, now the Director of Regulation, or under the various Presidents which have changed posts annually since 1990.

In short, the Law Society of Scotland are in a bit of a mess, held it seems in the grip of people like Mill, Yelland, and others who have remained in the top posts, even, promoting themselves to higher titles and with larger salaries, while the profession in general has been dragged into the gutter

Strangely enough, the membership have done nothing about the poor state of the legal profession, until perhaps now, as solicitors are having to wake up to the failure of Law Society policy on legal services, and the prospect of their monopoly market being opened up to competition where under the proposed OFT reforms, the public will have a wider choice of access to legal services, rather than being forced to use an expensive Law Society member solicitor or advocate as is currently required.

Some legal firms have decided to break with Law Society policy, advocating acceptance of the proposed OFT reforms and restructuring their firms services to offer wider choice, although worryingly, the legal firms who have broke from the Law Society on access to legal services policy, have their own poor regulatory histories to deal with, which remain undisclosed to any potential clients of course ...

I covered the differences in policy between the Law Society and some legal firms on the OFT reform proposals here : Law Society policy on open legal market reforms at odds with solicitors & public alike

Why do the Law Society of Scotland wish to control access to legal services ?

Is it perhaps because those who are denied access to justice may be able to secure legal services in the future but whom it was not previously in the interest of the legal profession to receive access to justice in the present closed legal services market where currently you have to go to either a solicitor or advocate ?

Control over who actually gets access to legal services has been a long cherished power of the Law Society of Scotland for many years - effectively controlling whether you can use a lawyer and get to court, or not, at the whim of a few individuals in the legal profession.

Is the Law Society's motive for this retention of control over access to legal services in the public interest ? No it certainly is not.

If you are wondering why so many people fail to get to court in cases of the like of .. professional negligence ... cases against public bodies, cases involving poor services of government, or institutions favoured by the legal profession itself, you need look no further than this issue of controlling access to justice, where, for decades, the Law Society of Scotland have effectively ruled against the right of the individual to obtain access to the law.

As far as the public interest goes, control off, or denial of access to justice is not in the public interest, and you would think, something a modern democracy would hardly tolerate, but in reality, this has been going on for years, with politicians who knew all about it, from all parties, including the SNP, doing nothing to assist the public. That has to change, and while the legal profession must admit it's sins of the past, so to must politicians, who have went along for too long, allowing the legal profession to run the legal system for their own good.

All this is a good advertisement if any is needed, the legal services market and regulatory reform of the legal profession in Scotland must be fully implemented and the sins of self regulation properly addressed & cleaned up, otherwise, even the opening of the legal services market will not address issues of lack of public trust, lack of accountability and lack of transparency in dealings with lawyers ...

If this debate is supposed to be about protecting the public interest, maybe the public, and a few clients such as

those who appeared at or submitted evidence to the Justice 2 Committee hearings in 2006 on the complaints reforming Legal Profession & Legal Aid Act (Scotland) 2007, should have been invited to air their views and inject a note of truth & realism into what is little more than yet another talking shop for the legal profession ?

... or is the public interest as the Law Society calls it - more realistically, the Law Society's own special interests of retaining control over access to justice .... not served by such democratic, inclusive debate ?

If you want to make your feelings known to the Justice Secretary on this, perhaps you should go along and visit this "public interest" lecture on legal services, and air your own views & experiences in dealing with the legal profession ... after all, the debate is, supposedly in the public interest ....

Article from the Scotsman follows :

Alternatives for firms debated

JENNIFER VEITCH

GROWING tensions between commercial and consumer interests over legal services are to be debated at a Law Society of Scotland conference on Friday.

In the wake of the Office of Fair Trading's (OFT) recent response to the Which? super-complaint, the society will hold a half-day meeting to explore the implications of alternative business structures (ABS) proposed for firms in England and Wales.

ABS is not yet officially on the cards in Scotland but the OFT has recommended the Scottish Government look at lifting market restrictions which "could be causing harm to consumers". These include current rules governing advocates' business structures and third-party entry into the market.

The consumer lobby is pushing for Clementi-style reforms to be introduced in Scotland in order to increase competition and drive down prices. Some larger Scottish firms have also indicated they want to see a level playing field with their English rivals in the post-Clementi era.

But the society and Faculty of Advocates have already expressed concerns about the impact that alternative business structures could have on public access to legal services, particularly in rural areas, if so-called "Tesco law", (firms such as the AA and the Co-op have plans to provide legal services) drives small firms out of business.

Michael Clancy, the society's director of law reform, stressed the importance of solicitors engaging in this week's debate to help find solutions to balancing commercial and consumer interests with the need to maintain access to justice.

He says the profession has now reached a "significant crossroads", with any reforms likely to have far-reaching implications for the entire legal system.

"It is quite clear that there are tensions," he says. "There are the issues of commercial work and commercial interests and there is the high street and the small town and rural areas, and issues about access to justice. What is the solution that satisfies everyone?

"That is one of the reasons why the conference is so important - it is a very significant crossroads for the profession and the Scottish legal system. It will inform the views that set the timbre for developments in the early 21st century.

"There are lots of commercial concerns affecting large and small firms alike. The Scottish Government will want to create an environment where both the large firms can feel satisfied that they are providing a service to their clients and that that service is providing a showcase for Scottish legal skills, and at the same time small firms are providing a service to our communities."

The society is drafting its own proposals for reform, to be published in a green paper this autumn. Clancy says it is "no secret" that a draft document already exists, but he stressed it will be adapted to reflect views put forward by the profession.

"Part of the process of the conference is to inform the society's council about the various views," he says. "Once the conference is over, the council will have the opportunity to consider the things that have been said on the day and the idea is that we should produce an options paper, a kind of green paper, which will put out options into the public domain for comment and response.

"After we have analysed these responses, we will come forward with a more substantive policy statement. Hopefully this will be concluded in the early part of 2008."

Clancy says the process may take some time to conclude but pointed out it is important to find the right solutions for the Scottish marketplace: "This is such a crossroads that the implications will reach far and wide and affect the system for a long time to come. We have to proceed properly so we get the right answer, because getting the wrong answer will be very bad for the public and for the legal system of Scotland."

At Friday's conference in Edinburgh, the keynote address will be made by Kenny MacAskill, the justice secretary. Other speakers include Jonathan Goldsmith, chief executive of the Council of Bars and Law Societies of Europe (CCBE), and Sean Williams, of the OFT. A panel discussion will also hear views from Martyn Evans, the director of the Scottish Consumer Council, Valerie Stacey QC, the vice dean of the Faculty of Advocates, Douglas Connell of Turcan Connell, Julia Clark of consumers' association Which? and Christine McLintock, of McGrigors.

Clancy adds: "It will be extremely interesting to see if the tensions can be substantiated by the people from the larger and smaller firms and from the consumer interest and Faculty of Advocates.

"The discussion will be extremely informative and will assist our council and policymakers to get to grips with the issues and see how these various tensions can be relieved and what middle ground there can be."

Yet any decisions about whether to follow the English model, set out in the Legal Services Bill currently going through Parliament, are hampered by a lack of evidence from other jurisdictions about the longer-term impact of alternative business structures, Clancy says.

Across much of Europe, and even in the United States, Clancy says, there is opposition to the concept of the multidisciplinary practice, and Australia is the only other major jurisdiction in favour of them.

• "The Public Interest - Delivering Scottish Legal Services" will be held at the Weston Link on Friday 28 September. For more info visit http://www.lawscot.org.uk