Wednesday, February 27, 2008

Scots Law should serve the public interest, not the legal profession's need for profit.

Members of the legal profession constantly talk about remaining 'independent' from Government, public scrutiny, and even independent from the law itself - although they use it as a business model for making themselves into an industry which ranks as one of Scotland's greatest money making enterprises .. or money making rackets, depending on your point of view.

Many members of the legal profession who have been caught up in complaints over the years, on serious matters such as fraud, embezzlement, etc .. hardly seem to think the law applies to them - and for the main they would be correct.

Just take a look at how many fraudsters & crooks are sent to jail who aren't members of the legal profession, set against those who are lawyers ... you will soon see a difference in the statistics, and come to the conclusion as many have, that lawyers can just about get away with blue murder.

To support this conclusion somewhat, a recent investigation into a lawyer who has poorly served his clients, brought about a response from the Crown Office to one of the complaining individuals saying no action would be taken against the lawyer concerned .. despite the Crown Office going on to apparently admit that crimes had taken place ...

Crown Office - crime maybe does pay, if you are a lawyer ...

crown office letter

How was the law serving the public or our society in that decision from the Crown Office and countless more like it over the years ...

In any case, this week has so far seen lawyers congratulating themselves in the usual way of defeating the efforts of reform, stirring up a fight between Scotland & Westminster via some sections of the media on legislation long since agreed between our two countries ... and lawyers talking about how the law must serve society.

If the law ever does serve society, instead of society having to serve it, I will have something much more positive to write about.

In a Scotsman article on how the law must serve the public, I noticed a particular reference to Freedom Of Information, and how it makes a 'valuable contribution" to public authorities being regulated in their conduct of public affairs.

To quote the article itself :

"The objective of an efficient public law is that public authorities should be regulated in their conduct of public affairs. Freedom of information makes a valuable contribution to the attainment of this objective because unless there is openness in decision-making it is all but impossible to scrutinise whether any public body has proper reasons for the decisions taken.

Freedom of information gives the public access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them, facilitating challenge to unlawful, arbitrary decisions."

Well I would agree that at least, these were the intentions of FOI legislation, but as we see across many cases of disclosure, and refusal of disclosure ... FOI does not always live up to the mark, and it certainly does nothing for the legal profession itself, because the Law Society of Scotland saw to it they have an exemption from FOI - so, FOI seems of little use against lawyers, or anything to do with the legal profession which could cause significant change.

Earlier this week for instance, I was told by a source that yet again, the Scottish Government has been prevaricating FOI requests on information relating to disclosures sought on the relationship between Marsh UK, the Royal & Sun Alliance PLC insurers, and elements of the Courts Service and other parts of the Scottish Government, on the grounds of costs of disclosing the information.

I found that slightly strange, given John Swinney's revelations of serious corruption at both the Law Society of Scotland and Marsh UK - who are financially involved with many departments of the Scottish Government, and including the GLSS - the Government Legal Services for Scotland, who themselves will I assume, be advising against disclosure for fear of the conflicts of interest and cosy financial relationships which should be revealed to the public.

Perhaps Mr Swinney could help the situation along and see the relevant information disclosed without censorship & dictates from the Law Society of Scotland, and see that the law again, serves society rather than serving the legal profession .. where sadly our Justice Secretary will not act ...

The Scotsman reports on how the law should be serving the public :

Public law must serve our society


SCOTLAND has a vibrant public law, which is undergoing rapid change through a number of influences unique to our country – change to which practitioners can contribute if they recognise the full scope for innovation that these influences present.

The first stimulus was the introduction of the procedure of Judicial Review, but that was a case of the tail wagging the dog – a change in procedure influencing the development of substantive law.

Nonetheless, it has opened the courts to participation in the principled development of public law that arrived with the New Labour agenda of constitutional reform in the shape of the Scotland Act 1998, the Human Rights Act 1998 and the Freedom of Information (Scotland) Act 2002. Their interaction has given potential for a peculiarly Scots dimension to public law.

The essence of the constitutional change effected by the Scotland Act is that it brings more of a legal content to the control of legislative and executive power in Scotland.

Subject to the exception of EU Law, English law remains grounded in the principle of parliamentary (that is, Westminster) sovereignty. Scotland is different because the Scottish Parliament is not sovereign and it is expressly provided by the Scotland Act that an Act of the Scottish Parliament "is not law so far as any provision of the Act is outside the legislative competence of the parliament", which embraces any incompatibility with the European Convention on Human Rights (ECHR).

Courts can accordingly go beyond the political act of issuing an advisory opinion that legislation is incompatible with the convention (which is all that English courts can do relative to Westminster legislation), right up to the ultimate legal remedy of quashing legislation enacted by the Scottish Parliament.

In Scotland, this fundamental shift from the supremacy of legislation goes further and affects even the implementation of Westminster legislation. The Scottish Government does not have the power to infringe human rights, irrespective of whether the infringement is based on Holyrood or Westminster legislation.

These arrangements are not, however, undemocratic, because the rule of law does not mean rule by lawyers. In the litigation concerning the validity of the ban on fox-hunting, the courts did not ask whether the ban was a good or a bad idea.

Rather, the courts scrutinised whether, in enacting the ban, the Scottish Parliament took proper account of the human rights involved and struck a fair balance between the rights of the individuals who participate in hunting and the interests of the community. To date the ban has been upheld by the courts on the view that a fair balance was struck by the democratically elected legislature whose task it is to resolve controversial questions.

The need for a fair balance between the rights of the individual and the needs of the community runs through the ECHR and now lies at the heart of Scots public law.

There has been a suspicion in some quarters that Scottish judges went too far in deciding that a person charged with a criminal offence should be automatically acquitted in the event of an unreasonable delay in being brought to trial. That result seemed to give undue precedence to the rights of accused persons over the rights of victims of crime and the general public, who under the convention are entitled to the protection of an effective criminal justice system.

That imbalance has now been corrected by the Privy Council, which recently decided that an unreasonable delay does not necessarily require an acquittal.

The objective of an efficient public law is that public authorities should be regulated in their conduct of public affairs. Freedom of information makes a valuable contribution to the attainment of this objective because unless there is openness in decision-making it is all but impossible to scrutinise whether any public body has proper reasons for the decisions taken.

Freedom of information gives the public access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them, facilitating challenge to unlawful, arbitrary decisions.

We are at the start of a dynamic process that could lead to a distinctive public law built on a fusion of the new constitutional arrangements for Scotland, human rights and freedom of information.

The task we have is to formulate a constructive public law that is responsive to the key objective of producing a tolerant and broad-minded society which is respectful of the rights of the individual while attending to the needs of society as a whole.

• Gerry Moynihan QC is a member of Axiom Advocates. He gave last week's Third Thursday Lecture on public law.

Anyway, while some in the legal profession lecture us on the law having to serve the public, others in the legal profession seek to deny the public even an input into long needed reforms to the legal services market, preferring to spout forth the Law Society's policy of censorship and targeting campaigners & critics, rather than engaging the public and resolving their sins of the past, known to be many.

Here follows an article from the Scotsman, written by a lawyer, on how the legal profession view the rest of us, as we view many of them ....

The article ends with a vitriolic attack on critics of the legal profession and campaigners for change, proving perhaps that a little falling ice provides no seeing of the light .. and preferring to reinforce the Law Society's mantra of 'lets silence anyone who could be a threat or have input into reforms against lawyers interests'.

The Scotsman reports :

Lawyers … and other reptiles

By Donald Reid

IDLING on The Scotsman website, I found some feedback on my last piece. I'm so flattered. It's all hate mail.

One correspondent, however, inadvertently gave me a good bit of advice, namely to read Jess Brallier's (now out-of-print) book, Lawyers and Other Reptiles. It's wonderful. I have always loved lawyer jokes and quotes, and this book is full of them. All I can say is the title is a bit hard on reptiles. What have they done to be cast as bedfellows with the lowest form of living scum?

My favourite quote so far is from the New Yorker: "I told you that you should've got yourself some legal advice before running to a lawyer."

It hints at several of the reasons why such expressed vitriol against our noble profession so proliferates. The first reason is money. Lawyers are expensive. If you "run" to a lawyer, the chances are you'll get a bill, and a hefty one at that. No-one likes bills, and an easy way to externalise this dislike is to blame the biller rather than the billed. In the excitement of their initial consultation, I find it hard to get clients to face the financial reality of their principled crusade, or their precarious venture. I have to tell them that the practice of the law, and the results obtainable, are not necessarily the same as the client's perception of justice.

Yes you should think twice before going to a lawyer. The fact that the money you pay him or her is substantially to cover the overhead he or she has to maintain in order to give you the service you seek is not an easy swallow. After all, you've seen his/her Merc.

But the quote is tellingly ironic as well. How can you get legal advice on whether to get legal advice? The fact is you can't really. Lawyers are no doubt expensive, time-consuming, anxiety-broking vultures (now we're insulting scavenging birds), but they are necessary. You can't avoid them. One of the ironic outcomes of the political drive to treat lawyers like bad children is the enormous length of the engagement letter that solicitors are now required to issue before any work is done. My tongue is not entirely in my cheek when I say that clients should perhaps get a different lawyer to check over the intended lawyer's terms and conditions. But who checks the terms and conditions of the checker?

I think the main reason for books such as Brallier's is this: lawyers don't deserve it, and the lawyer-bashers know this full well. The jokes are only funny because they are jokes. They express the angers and frustrations of litigants and clients precisely because their lawyers have not caused the problems, but rather have earned a living out of them. I can understand the epithet "parasite" but it can be used, with greater or lesser justification, upon all sectors of service industry. Yes, there are some very serious cases of bent, greedy and self-serving lawyers. But if these were the norm, rather than demonstrably the tiny minority, the whole joke culture would collapse. After all, no-one makes jokes or collects pithy sayings about perverts or genocidal maniacs, bankers or any other persons held to be truly reprehensible. Do they?

These critics will say that they are the victims of bad lawyers whose actions have damaged or ruined them beyond any joking. Perhaps they are right; certainly they are humourless; but they are a minority. They allege corruption at the very core of the profession and its governing body, which is surely beyond credibility. Is it right to allow them such influence in current demands for reform? There may be a few rotten apples. But the tree is still healthy.

I'm not joking


Anonymous said...

Good title but the law only serves the lawyers.
Nice letter from the Crown Office too.How many hundreds of them a year do they issue ?

Dear Sir/madam,

We are writing to inform you that even though your lawyer ruined you and committed ghastly crimes and ate your children we dont want to cause a fuss by prosecuting him !

yours, the lawyers.

PS if you make a fuss we might have to send round a lawyer !

Anonymous said...

Moynihan's piece sounds good - if they would only practice what they preach but the other guy !!! Scotsman must have included him after battalion orders were issued from the law society !

How come the lawyer is not getting prosecuted and what did he do ?

Anonymous said...

Two recent Legal Services Ombudsmen have stated in no uncertain terms that 'the tree' is most certainly not healthy - and noted on record that the rot spreads all the way up to the Faculty of Advocates whose failure to promptly and impartially investigate complaints is almost the equal of that other self regulating, unelected body - the Law Society.

Anonymous said...

Crown Office protecting crooked lawyers again.What a surprise.Id also like to hear what the lawyer did.Must be bad considering what the letter says.

Anonymous said...

"Yes you should think twice before going to a lawyer"
Good tip Mr Reid and after seeing what your scumbag colleagues did to Cherbi and many more I would advise anyone to stay the fuck away from a lawyer

and its usually 3 mercs not just now because as we all know lawyers are greedy bastards thats why they rob the dead too isnt it?

Anonymous said...

David Reid sounds very bitter.
Is that how all lawyers feel when their brethren are caught with their hands in the till?

I'd like to hear some more about that case involving the lawyer Murray and the Procurator Fiscal please.Whats going on there and why no prosecution?

Anonymous said...

Rumour has it a tabloid is talking to one of Kenny's old clients.He wont like the outcome but you probably will.

Peter Cherbi said...

#Anonymous @ 8.40pm

I think the Crown Office slipped up on the wording in that letter ...

Try asking how many lawyers are reported to the Crown Office each year for crimes, or to the Police - both say they don't keep such statistics !

#Anonymous @ 8.52pm

The lawyer the Crown Office don't want to prosecute ruined a few clients - the usual story and no one wants to do anything as usual...

#Anonymous @ 9.58pm

Yes, the Faculty of Advocates is just as crooked as the Law Society of Scotland - and they share the same negligence insurers - Marsh and the Master Policy ...

#Anonymous @ 3.13pm

Yes, bitter describes it well.

The lawyer Mr Murray has ruined a few clients and as I said above, no one wants to do anything.

Another whitewash and Law Society cover up ?

#Anonymous @ 4.20pm

Not heard that, email me the details please.

Anonymous said...

oh good MacAskills background about to break
I bet theres a lot to come out

Anonymous said...

I think I will keep away from lawyers too after reading some of this.

Thanks - probably saved me a lot of money !

Anonymous said...

Hey Peter.Great blog and I admire you for taking on the lawyers and winning.No wonder they hate your guts.Must be terrible for them to have been dragged through all these reforms you asked for all this time.Just terrible!

How about you do something on the Lockerbie case and just leak those papers all over the web ? Now that will get results !

Anonymous said...

Funny thing happened today - My lawyer had been pissing me about forever on a case regarding an adjoining wall between us and the neighbour.I mentioned I had read your blog and tonight I get a call the neighbour has offered to settle!
How about that! but I think both lawyers were stringing us along so obviously ours talked to theirs.

'The great Satan' fiddles while his fellow Scots burn said...

# Anonymous @ 4:20 PM said...

"Rumour has it a tabloid is talking to one of Kenny's old clients. He wont like the outcome but you probably will."

Yes i will. Anything to do with his fiddles when he was a practising solicitor? Maybe the Scottish Legal Aid Board could help the Daily Record out with their inquiries.

I believe they have quite a dossier on him already. Something to do with treating his fellow Scots like fuckin' shit ... in favour of those fuckin' crooked shits at The Law Society and his corrupt legal "profession" generally.

And Salmond, his Scottish Nasty Party and the Scottish media (cowards) continue to do sweet fuck all ... though hopefully that tabloid can nail this crooked bastard once and for all.

What a corrupt little country Scotland really is now ... under King Alex of (The Law Society of) Scotland and his Scottish Nasty Party.

Thank God i'm emigrating soon and clearing out ... not a very nice place to bring up children under such a corrupt regime ... which appears to be getting much worse under SNP rule.

Sic a parcel o rogues...

Peter Cherbi said...

#Anonymous @ 9.47pm

No thanks but I wouldn't be surprised if it does leak to the web.

#Anonymous @ 10.26pm

I get a lot of that - god knows why ?

Anyway good to see your mention may have done some good.Perhaps the lawyers didn't want their names appearing in the mass media ?

You could email me some details if you like and identify the legal firms involved.

# "The great satan fiddles while ..." @ 2.00am

You make it sound so bad I think half the country may leave !

In defence of Scotland, it needs a cleaning up of the 'fiddles' - which I am convinced can only be done by a capable Justice Secretary - not the present holder of that portfolio, who isn't liked by many - even some in the Law Society have no time for him, so they say ...

Oh to have a person who thinks before he speaks such as John Swinney in Justice ... any suggestions, readers ?

Anonymous said...

gossip about Kenny? AM2 will have a field day with that one!

Anonymous said...

You can imagine my shock when I heard this morning you have been offered a job at a law firm.

Will you take it Mr-opening-the-monopoly-king ?

Anonymous said...

No show of my comment Mr Blogger-turns-into-lawyer.Going to answer me or what?

Anonymous said...

Don't give too much credibility to tbose solicitors writing in the Scotsman.

Remember they don't speak for the rest of us.

Anonymous said...

Peter Cherbi : If I may suggest that you restrict the tendency of some of those who make comment to swear.Their use of foul language does nothing for their argument.

If they feel that desperate about things they should pay their lawyer a visit and sort things out.

Peter Cherbi said...

#Anonymous @ 2.18pm & 4.14pm

You seem to know more about it than I do ... and your additional 10 further comments which degenerate into the unrepeatable have been deleted.

I take it you are one of the "keep the monopoly, we love Douglas Mill crowd" ?

#Anonymous @ 4.51pm

Yes, I know, and agree with you.

#Anonymous @ 6.55pm

Yes, I agree and there will be no further comments allowed with swearing.

While I do appreciate the strong feeling of many, I myself have as you know had as bruising an encounter with solicitors as many others, for the written cause, there is much to be lost in descending from the gentlemanly use of words, even if one is 'pressed into hell' by those who cause injustice.

Think for a second before you post, because to be honest, it is more the domain of those who cause injustice, to resort to underhand tactics or a lack of civility, because when their position is exposed as being one of corrupt practice, the use of bad language, bitterness or hate is all they have left. Please do not fall into their trap.

Keep it clean folks ... and remember, there's always something to find on someone who causes or perpetuates injustice, which will bring them down. If you want to do some good for yourselves and all of us, find it, and publish it as those who cause or perpetuate injustice have no place in public life or legal service.

Mary said...

Well said Peter and I hope you do get into the legal system.We need more people like you in it so keep true to your word and you will be fine.

Anonymous said...

# Anonymous @ 6.55pm

If i may suggest that you restrict your naivety and ignorance to the suffering, angers and frustrations of those who have, in many cases, had their lives totally trashed and ruined by crooked and corrupt Scottish solicitors (and Scottish politicos) over several years to other forums.

It is only because of those justified angers and frustrations that some may occasionally resort to foul language - expletives used in everyday language by most ordinary Scots i suspect, and certainly used in the many deprived housing schemes throughout Scotland ... venture there one day, where you might learn that the use of the words F*, B*, C* ... (and much else besides from the local vernacular of the working and under class Scottish sink estates) is a world away from the sheltered and comfortable life you may well inhabit.

Whether you are a deluded SNP-loving groupie or just someone who has never used an expletive in their life, i don't really know. But it is clear you are criticising this comment ...

... Perhaps, sir / madam, you should waken up to just how true these comments are ... notwithstanding the odd expletive deletive.

"It is time..." this bunch of Nazis were properly exposed for the back-stabbing, self-serving, crooked and criminal Nasty Party they really are ... lawyer-loving and protecting MacAskill in particular.

Anonymous said...

Start your own firm Peter you don't need to join up with lawyers !

I'd be at your door in a minute if you were in the legal business !

Anonymous said...

Very interesting comments here.

I think people should moderate themselves on what they write in their comments but at the end of the day why bother going through this complaints process against lawyers anyway?
Take one of the posters advice and go confront the crook then whatever happens next is up to you.I certainly wouldn't put myself through what you went through with the Law Society and that lawyer on your dads will.Easier and quicker solutions to that kind of behaviour.

Anonymous said...

If they feel that desperate about things they should pay their lawyer a visit and sort things out.

Fantastic idea.Cut out the Law Society and all that.So how many hungry rottweilers can we take to go see our ******* lawyers ?

Anonymous said...

Mr Cherbi,I am pleased to read your blog after a recommendation by a friend.
Perhaps you may be able to help.
I have a slight problem with my lawyer in that he is refusing to hand over the title deeds of our house until we pay his account in full.This has went on for 3 years now and the Law Society who know all about it have backed him up the whole way through our complaint.
Our problem began when 4 years ago we sold a plot of land we owned to our neighbour who happens to be another client of our lawyer (we didn't discover this until after the land sale.The deal seemed simple enough then it was alleged there were rights of way around the plot of land which the neighbour owned and the price was renegotiated down £10,000.
After the sale of the land, our neighbour (who owns 2 farms) claimed the boundaries of the plot he bought from us extended into our remaining land, and started sending us nasty letters through another lawyer and our lawyer (we still didn't know at the time he was also our neighbours lawyer) advised us to cave in to his demands.We didn't and for a year nasty letters every week which our lawyer replied to and charged us a fortune for saying nothing and not even telling us he also represented our neighbour.
When we found out about our lawyer being on both sides of the fence we finished with him and paid what he said by letter was his "final account".He was to hand over our title deeds with the paperwork he had but only gave us some files and copy letters.We asked again for the titles and he delayed answering for 6 months then said he had lost them.We made a complaint to the Law Society after this and told them what happened and what he did then the next week he sent us a letter saying he would only hand over our title deeds if we paid an account for work of £6,065.He did no work after we paid what he called his final account and that was it as far as we were concerned and the Law Society first confirmed that but now refuse to even answer point and wont do anything about getting our title deeds back.We have been to the Police who are not interested and our msp who is useless and cant get a lawyer to get our titles back as I assume we are on some kind of blacklist so we cant sell our house while our ex lawyer keeps our titles.Maybe you can do something or get a newspaper involved as this lawyer is a real crook and so are the people at the Law Society who handled this complaint.They are real crooks and their actions are just out to help that lawyer and our neighbour get our land and our own home.I am not rich.My wife and I are retired and on pension but if you can help us with this I will give you what I can for your trouble.How do I get in touch with you please?

Peter Cherbi said...

#Anonymous @ 6.42pm

My contact details are available in my profile, or you could post your contact details in a comment, I wont publish.

Please remember I do not accept payment for any help I can give you.

? said...

To the person who cannot recover their titles,your ex solicitor has committed theft.He has no right to withhold your title deeds. Make a full complaint to the Police and take along a journalist if you can get one.

If the Law Society have knowingly allowed this to go on for three years anyone involved should be sacked.

Anonymous said...

If Peter has been offered a job in the sector I say good luck to him and his clients.We need some new blood and a touch of dissent to stir the pot from time to time.

Anonymous said...

What makes a lawyer think he can hang onto someones titles ?
What about conflict of interest ? Why was that lawyer acting for both parties ?

Anonymous said...

Good post.I will remember to avoid buying the Scotsman now if all they are doing is promoting lawyers.