Thursday, March 06, 2008

Disparity in entry exams reveal Law Society preference of EU entrants over British lawyers in admissions to Scots legal profession

Today, I am featuring an article which shows differences on admissions policy within the legal profession itself, and how the Law Society of Scotland can also discriminate against solicitors, not only clients ...

The Law Society of Scotland, as we know, not only controls Scots access to justice by forcing the public to use a member legal firm and solicitor, it also flexes a strict control over entry to the Scots legal profession. This unjust control the Law Society holds over access to justice, and access of entry into the legal services market, is one of the key areas identified for reform by consumer organisations and the OFT in recent recommendations and public campaigns to provide a better deal for Scots when having to use the services of a lawyer.

However, in a situation which has just come to light, the Law Society seems to have embarked on a policy of denial of entry to the profession of solicitors from the rest of the UK who wish to enter the Scots legal services market, in preference to solicitors from the European Union for some reason ...

This policy does seem to fly in the face of recent deals which have seen the likes of Scots accountants allowed to practice in England & Wales, through entry exams & additional qualifications, and not to mention the substantial increase in Scots solicitors heading south of the border to practice in England & Wales, and further afield.

Emerging reports from solicitors in other parts of Britain who are trying to enter the Scottish market show that a brick wall of silence is being applied to their queries & applications by the Law Society of Scotland's Admissions Committee, which is now caught up in a scenario of potential discrimination against solicitors from the rest of the UK who wish to enter the Scots legal market.

To explain a little more about this situation, there exists a procedure by which English/Welsh and Northern Ireland solicitors may become admitted as solicitors in Scotland, the so-called Intra-UK Transfer Test. The examination was developed nearly 20 years ago and it is comprised of three written papers. The examination is administered in two 'Diets', one in March and the other in November.

Additionally, with the integration of the UK into the European Union, several directives have since been introduced which permit EU nationals who are qualified as lawyers in a 'home' member state to establish practice in a 'host' member state. The LSS introduced an EU Aptitude Test to accommodate EU qualified lawyers who would wish to qualify for admission as solicitors in Scotland by examination.

It is notable from a quick scan of the Law Society's recent intakes of admissions that solicitors from the EU do seem to have an easier entry into the Scots legal market than colleagues from south of the border, and some speculate this may be because the Law Society itself feels EU solicitors can be easier held to it's own policy of control over the Scots legal profession, than their British counterparts from England, Wales & Northern Ireland, who are seem as an element by some in high places as 'more difficult to control' ...

A solicitor queries the Law Society of Scotland's Admissions Committee, raising several questions about the content, structure and differences between the Intra-UK Transfer Test and the Aptitude Test :

Letter to Jan McAlister from English lawyer Page 1Letter to Jan McAlister from English lawyer Page 2Letter to Jan McAlister from English lawyer Page 3

"Dear Sirs,

the Intra UK Transfer Test ('IUKTT') and the Aptitude Test for EU Qualified Lawyers ('ATEU') are administered by the Law Society of Scotland in order to permit solicitors qualified in England/Wales/Northern Ireland and EU nationals who are qualified as lawyers in EU member states to be admitted as solicitors in Scotland. Close inspection of the content of both the IUKTT and the ATEU has raised questions about the purpose and fairness of maintaining two separate examinations for access to the single profession.

The IUKTT and the ATEU place different emphasis on examination content. In some instances it is fairly obvious why there is different emphasis, such as the requirement for ATEU candidates to sit a paper on professional conduct and accounts. However, it is not clear why the content is distinct in the following two instances:

a) IUKTT candidates are required to answer a compulsory drafting question in Paper I Conveyancing with Trusts and Succession and ATEU candidates are not. What is the justification in exacting this requirement from IUKTT candidates when ATEU candidates are not required to demonstrate their drafting skills?

b) IUKTT candidates are required to answer a compulsory question on Scots Criminal Law in Paper II and ATEU candidates are not. It appears that ATEU candidates are not required to demonstrate any detailed knowledge of Scots Criminal Law at all.

Arguably the two most important areas of law in which a solicitor is likely to be involved as a practitioner are conveyancing and criminal representation. IUKTT candidates are solicitors and may have practiced largely as conveyancers. This cannot be said of ATEU candidates, who will not have acted as conveyancers in their home jurisdictions. Conveyancing is predominantly effected by notaries in EU member states, who are publicly appointed officials and not lawyers in private practice.

Similarly, with respect to criminal representation, the role of solicitors in Scotland is vital because of their rights of audience in the Sheriff Court, where most criminal cases are heard. IUKTT candidates are familiar with many of the criminal law concepts which Scottish solicitors encounter in practice on a daily basis. IUKTT candidates understand the essential nature of case law in the development, interpretation and application of law in general and criminal law in particular.

Much of Scots criminal procedure is comprehensible to IUKTT candidates. Unfortunately, the same cannot be said for ATEU candidates, who should not be expected to have any grip on the essential nature of Scottish criminal law. Although EU lawyers will have studied criminal law during their undergraduate law courses, the approach taken towards criminal law and procedure in Continental EU jurisdictions is very different to that taken in England and Scotland.

In EU jurisdictions case law, together with learned legal writings, is illustrative and not a source of the law. The authoritative source of all criminal law is a penal code which will have been passed by a legislature. The role of professional judges in EU jurisdictions is restricted to the application of the penal code and the code of criminal procedure; they do not make the law. For an ATEU lawyer, the representation of an accused in the Sheriff Court would be a quite distinct and dare-say overwhelming experience.

There are varying examination conditions for IUKTT and ATEU candidates:

1. ATEU candidates are given 45 minutes to answer examination questions in Papers I & II whilst IUKTT candidates are given 40 minutes to answer examination questions in their respective papers. Why?

2. ATEU candidates are permitted the option of attempting the four papers over two sittings, which shall be deemed as one 'Diet', whilst IUKTT candidates are not. If an ATEU candidate should be exempted from sitting Paper III, EU Law and Institutions, why would he be permitted to attempt three papers over two sittings when an IUKTT candidate is not allowed to do the same?

3. IUKTT candidates qualified as solicitors prior to 01.01.1992 are not obliged to sit Paper III European Community Law and Institutions. The UK became a member of the EEC (EU) in 1973. It is salient that EU Law and Institutions is moreover a compulsory component of law courses at universities in Continental Europe.

The Law Society of England & Wales instituted a standardised Qualified Lawyers Transfer Test. It is noteworthy that Scottish solicitors are eligible for admission as solicitors in England if they pass just one 3 hour 'open book' examination paper on Property. The examination on Property will be the same for a Scottish solicitor as for a New York attorney or a French advocate. Whilst the number of papers that a candidate must sit varies depending on where a candidate is admitted, the content of the papers has been standardised and is essentially fair to all who sit them. The Law Society of England & Wales does not require a Scottish solicitor to sit a different examination from an EU qualified lawyer and he is not a case for special treatment, since he is subject to the same examination conditions as all candidates.

The IUKTT and ATEU are the points of access for those who wish to re-qualify as solicitors in Scotland. Unfortunately, the present arrangements appear to be flawed because they do not provide a level playing field for all candidates. I can only guess as to why there are essential differences in content for Papers I and II of the IUKTT and ATEU. Maybe because the IUKTT originated before the introduction of the EU Directive, its syllabus has not been reviewed in conjunction with the development of the ATEU? Or perhaps it has been assumed that ATEU candidates will not attempt to undertake conveyancing or criminal representation once admitted to the Roll in Scotland?

Whatever the reason, the type of solicitor who will be produced at the end of the re-qualification process will undoubtedly be of a different standard to those 'native' solicitors who qualified in Scotland. One wonders whether the public in Scotland would be pleased to learn that the Law Society of Scotland is disposed to admit as solicitors candidates who have not demonstrated any knowledge of, for example, the criminal law of Scotland."

Clearly the Law Society of Scotland are finding it difficult to reply to the above letter, which their Admissions Committee received from an English solicitor some five months ago in October 2007, and this delay hardly demonstrates the Law Society's position as a competent Admissions Authority ....

In any case, the public in Scotland indeed, would not be very pleased to learn that the Law Society of Scotland is disposed to admit solicitor candidates who have no knowledge of key areas of Scottish Law .... and something must certainly be done about that. The Law Society maintains that it maintains standards within the legal profession but as we seen, admitting entry to those who have a limited understanding of the law itself, does nothing for maintaining standards ...

The solution to this problem would be to take away the Law Society of Scotland's admissions control of entry into the Scots legal services market, and pass it to a fully independent body which can oversee and administer the qualifications & entry process to a fair, consistent and high standard, ensuring both the public and professionals get the highest standards of access to justice & legal service in a fully opened legal services market.


Anonymous said...

Good report.

One could be forgiven for thinking the Law Society are now anti-English.

I wonder where they got that from ......

Anonymous said...

Thanks Mr Cherbi. Most informative. Makes a change to see an article showing that solicitors, too, can be the victims of the Law Society.

Anonymous said...

Just one further example of the denial of any meaningful or proper access to the Law which the (unelected and self regulating)Law Society of Scotland is allowed to perpetrate and control - by parliament and judiciary alike.

sleepless in Stirling said...

A bit complicated to follow but it seems the law society are not into allowing lawyers from anywhere else in the uk into Scotland but they will take european lawyers

Are those european lawyers coming in from any former communist bloc countries by any chance? If so they will be used to being bullied anyway so having the Law Society bite at their ankles will just be all in a days work for them and only too willing to follow orders so I could see why they would want them over the english

Anonymous said...

Don't see you much in the hootsmon now Peter.Just as well anyway because its turned into a lawyers only rag.

On your story I read it but seems over my head.What I do pick up is that no one gets to be a lawyer in Scotland without the Law Society's say-so and no one gets to choose their own lawyer unless they get the Law Society say-so too.

Bloody awful to put it mildly but you are obviously working on it so have another go at them laddie as I know you will do!

Anonymous said...

I agree taking away the admissions function of the Law Society would be a good thing for the profession at large due to its quirks and somewhat odd behaviour from time to time.

If you dig deeper Mr Cherbi you will discover a raft of problems along the lines of the points the author of your featured letter makes.

Anonymous said...

I second the second comment.Always found the Law Society the biggest pain in the backside imaginable.As Cherbi says we all need a break from our own monstrosity!

Anonymous said...

The Law Society of Scotland obviously don't want anyone muscling in on their members business unless they are willing to play ball.The author of your letter is clearly not in that category.
There are as you point out plenty of Scottish lawyers in England,and I can think of one legal firm you recently wrote about which has opened an office in London.Last time I looked,London was in England.

Anonymous said...

More trouble for the Law Society,Good.

Anonymous said...

Quite a change for you to be covering the internal problems of lawyers Mr Cherbi.
I myself have a bit of a battle with the Law Society over a client of mine who was persuaded by them into making a complaint against me while I was actually trying to put the matter right.
I admitted my mistake,the client accepted it as a closure, along with my offer of compensation but the Law Society chose to hound me further for two years in an attempt to kill my business and remove me from the roll.
Since you have featured the problems of an English solicitor with our own professional body,I wonder if you would be good enough to let me have a say against the Law Society of Scotland?

Peter Cherbi said...

#Anonymous @ 3.05pm

I'd say its more like anti anyone who may rock the boat ...

#Anonymous @ 8.35pm

I would encourage more stories along these lines.If solicitors feel aggrieved at the Law Society for whatever reason,they can present their case for publication ...

#Anonymous @ 10.15pm

I agree, and the solution to that is to reduce the Law Society of Scotland to the sole function of being a union for solicitors,removing its regulatory and other functions to fully independent organisations.

#Sleepless in Stirling @ 3.09am

An interesting suggestion,and one which may be true ...

#Anonymous @ 3.52am

Your comments sum up the article to a certain extent.

At the end of the day there must be a standardised exam for all entrants into the Scots legal profession & legal services market once it is opened up, and that exam not controlled by the Law Society of Scotland.

#Anonymous @ 12.26pm

I agree, and please feel free to email me of any issues you know of regarding the admissions exams ...

#Anonymous @ 2.32pm

Yes I would agree with you on all points.

#Anonymous @ 4.07pm

Of course, please send me the details of what happened and it will be published.

Remember to ask your client to get in touch with me too for a balanced view.

Anonymous said...

very interesting the way the Law Society keeps control of things and I suppose we wouldn't get to know anything about it if it weren't for sites such as this one.

keep up the good work Mr Cherbi

Anonymous said...

The SNP will be quite happy at the Law Society for keeping out the english.Isn't that what Scotland is all about now? Keeping everyone out of the reservation so the chosen few can get on

Anonymous said...

"Remember to ask your client to get in touch with me too for a balanced view."

I doubt if he/she will dare contact their client and let them speak to you

yes keep up the good work Peter Cherbi and break that horrible monster called the law society of scotland!

Anonymous said...

Sounds like the scots have a lot of problems with lawyers.How about bringing in a homebrew version of sharia law to tackle their thieving.Not such a bad idea surely if your politicians aren't doing anything for you then you will have to do something yourselves because your legal fraternity is turning your country into a joke of a nation

Anonymous said...

I agree with the points raised in that letter Mr Cherbi.Perhaps you should interest a newspaper in taking on the story.