Tuesday, March 18, 2008

Funding argument over Scottish Legal Complaints Commission conceals lawyers interference in 'independent' complaints body

While in-house lawyers such as those working for the notorious Government Legal Service for Scotland (GLSS) and other public bodies hope to escape paying the bulk of the new levy of "around £400 a year" to fund the new Scottish Legal Complaints Commission, the remainder of the Scots legal profession will have to pay the full amount plus the practicing certificate which is currently £735 a year, if of course, lawyers want to remain lawyers.

However, while the Law Society of Scotland are grumbling over the amounts to be paid by various factions of the legal profession, attempting bargains based on the rate of complaints that the likes of in-house lawyers or members of the Faculty of Advocates receive, the true picture of how the formation of the new SLCC is taking place is being slightly skewed, it seems in the benefit for the legal profession itself.

For a start, most of the staff of the new SLCC are migrating over from the Law Society of Scotland itself, many of those staff being qualified lawyers or those studying to qualify for the LLB and thus gain a practicing certificate, which the Law Society itself controls via admissions exams and awards at it's whim.

I reported on that matter in an earlier article here : Law Society staff secretly migrating into 'independent' complaints commission will ensure continuing problems of regulating Scottish lawyers

One wonders the, why there is such a fuss over who pays for what when all that is really happening is a piece of 'musical chairs', where the legal profession is, yet again, getting its way with its members migrating into the new 'independent' body to carry on investigating complaints against fellow lawyers, in the very same manner they have been doing for years at the Law Society of Scotland.

The definition of independence of this new 'independent' complaints bodyu slightly wears thin when taking that prospect into account ...

Further, Justice Secretary Kenny MacAskill's 'appointees' to the new Commission are on around £300 plus a day for attendance which was envisaged as 2 or 3 days a month, but which it is now acknowledged by staff at the Justice Directorate that it will could be much more than a couple of days a month ...

Those highly paid £300 plus a day 'appointees' from Mr MacAskill. are ex-Police, lawyers and ex members of Law Society Complaints Committees who have tactically come out of the Law Society of Scotland to 'join' the new 'independent' SLCC.

Still think the new SLCC will be independent ?

Would anyone out there like £300 a day plus expenses to sit & look at complaints against fellow lawyers and friends in the legal profession ? Nice little earner isn't it .. getting £300 a day plus expenses to do a few inevitable whitewashes on crooked lawyers while leaving the poor client ruined as is usual at the Law Society of Scotland.

Even the new Chairman of the SLCC, Jane Irvine, the current Scottish Legal Services Ombudsman acknowledges she wasn't consulted on the backgrounds of some of those appointees, one of them being a lawyer whose legal firm has worked in key cases involving the notoriously corrupt Master Insurance Policy of the Law Society of Scotland, which saw revelations by Cabinet Secretary for Finance John Swinney of massive corruption by Law Society officials right up to the Chief Executive Douglas Mill.

You can read more about John Swinney's revelations on corruption in the Master Insurance Policy and at the very heart of the Law Society of Scotland here : Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.

Another of the appointees, a former Policeman was in the Scotsman newspaper as being involved in serious internal investigations by his own Police Force against him, which are now being kept secret by Kenny MacAskill for fear of tainting the SLCC further, amid revelations this same ex Policeman sat on Law Society of Scotland Complaints Committees as a 'lay member' ...

I have reported on the sleaze in the SLCC's appointments process in previous articles here :

Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

Calls for full disclosure on legal complaints commission members as Justice Department 'covers up' conflicts of interest in appointments scandal

It does seem that what was planned to be an 'independent' commission to consider complaints against crooked lawyers has actually been co-opted by the legal profession even before it has come into existence, such seems to be the power and influence of Scotland's legal establishment and its members, who are bent on keeping control of regulation, complaints, and the public's access to justice for themselves.

The current Justice Secretary, Mr MacAskill, as duly obliged his colleagues at the Law Society by following orders, despite the revelations from Mr Swinney in key areas which should have affected to a much greater extent the appointments and formation process of the SLCC which now looks little more than a "new" Law Society of Scotland, staffed by the same people, with many of it's allies and former members at the most senior levels of the Commission itself.

This is not what was envisaged as an 'independent' organisation to deal with complaints against the legal profession. This is just another corruption of the regulatory issue, and an insult to all Scots who are users of the poor legal services we are currently forced to take from closed shop Scots legal services market.

Lets hope someone has the guts to create a proper fully independent organisation to look into complaints against the legal profession and maintain regulation in an opened legal services market, not this half way house already infiltrated by the legal profession itself. That person who could create such an organisation, is not Mr MacAskill.

Here follows the Scotsman's take via an LLB hopeful, which also gives a take on Richard Keen, the Dean of the Faculty of Advocates who criticises the fact the Faculty has no representation on the new SLCC.

Well Mr Keen QC, you should have spoke up then for a place, shouldn't you ? I mean, why should Advocates let the Law Society of Scotland control the SLCC's staffing, appointments and budget plans while the Faculty is left out of everything .. tut tut ...

Just not Keen on 'taxation without representation'

By JENNIFER VEITCH

SOLICITORS can expect to pay a levy of around £400 a year to fund the new independent body being set up to handle legal service complaints, it has emerged. The Scottish Legal Complaints Commission (SLCC) is consulting the Law Society of Scotland and Faculty of Advocates on its budget proposals – including the levy that the professional bodies will have to collect from their members.

The figures, which have still to be finalised, would see most solicitors pay an annual levy, estimated at £420. Combined with the practising certificate fee – which is currently set at £735 a year – the cost of continuing to wear the badge of solicitor is likely to rise to more than £1,000 a year.

But it is likely that in-house solicitors, who make up around a quarter of the profession, will be offered a significant discount to reflect the fact that they rarely receive complaints. The In-House Lawyers Group has won support from the council of the Law Society of Scotland in recommending its members to pay a third of the levy, or around £140.

Newly qualified solicitors are also set to receive a 50 per cent discount, in line with the fact they pay only half the practising certificate fee during their first three years. As the commission is due to open in October, half-way through the financial year, all lawyers will be asked to pay a half-year levy to cover costs for its first six months.

Advocates will also have to pay the levy, at a rate being estimated at around £332 a year. But Richard Keen, QC, the dean of the Faculty, revealed he has written to Kenny MacAskill, the justice secretary, to express his "fundamental concern" about the prospect of "taxation without representation".

Keen points out that advocates have no member sitting on the commission, and have generated far fewer service complaints (just 26 a year) than solicitors (around 3,500).

"We are not represented on the commission, but we are being asked to pay its budget," he says. "We are being asked to pay an annual levy on a per capita basis. The illustrative figure is £166 per person (for six months]. That means the Faculty is going to have to pay around £160,000 a year to the commission. That is not so they can deal with 26 complaints, because they are only dealing with service complaints. We are talking about something of the order of ten complaints that are going to be dealt with."

He adds: "What concerns me is we may have created an enormous mallet to crack a very small nut as far as the Faculty is concerned. We are paying far, far more than solicitors in order to have this commission deal with service complaints and yet we are the ones with absolutely no representation on the commission. That appears to me to be inequitable."

Keen added the levy would end up being reflected in the fees charged to clients.

"We have to remember that every layer of bureaucracy has a cost, and someone has to meet that cost, and generally it ends up being the consumer," he says.

Philip Yelland, the Law Society of Scotland's director of client relations, says the rate of the levy would reflect the fact the commission was going to cost double what was originally forecast.

"The budget is still at a draft stage," he says. "One of the things we have been very conscious of is that the cost of the commission is significantly in excess of the original (estimate]. When this went through the finance committee of the Scottish Parliament, the figure was £1.5 million. It is now around double that.

"I think the commission will cost what the commission costs, and they have to set a budget that is fair and reasonable."

But he acknowledged its initial budget could not include what revenue might be generated by case fees – as it is not possible to forecast how many complaints it will deal with – and the commission will have an ongoing responsibility to consult the profession annually.

"They will have an additional source of income which will be case fees," he says. "That is something that clearly, in year one, they can't include in their budget." While the Law Society of Scotland will no longer handle service complaints, solicitors should not expect to see a reduction in the cost of their practising certificate, he adds.

"To say a levy at £400 per annum would mean £400 could come off the practising certificate would be an unrealistic expectation," he says. "If they start on 1 October, our role won't stop. We have still got conduct complaints to deal with (and] we are being given additional powers to deal with unsatisfactory professional conduct."

The society will also need resources to address the impact of the commission's decisions on standards, he says.

But Yelland adds the society is already working closely with the commission to ensure a "smooth transition" from the new complaints handling system.

"We have had a very good positive constructive discussion with them," he says. "They are setting up a new body and judging how many complaints they will get.

"They have clearly recognised that we have been dealing with service complaints since 1989 and they have been very keen to learn from us.

"They have been very keen to talk to us, and we have been very keen to pass on our experience and the information that we have."

Jane Irvine, chairwoman of the commission and the current Scottish Legal Services Ombudsman, says work is ongoing to set the levy and rates. But she adds that the commissioners recognise the need to "budget wisely".

"Members of the SLCC are currently working on setting a budget for the first year of our operation, and considering how case fees should be charged," she says.

"In doing this, we are extremely conscious that we owe duties to everyone who will use our service to create an efficient and effective body, so we must be adequately funded and operate a practical case fee system.

"We want to create systems that work effectively and lead to early resolution of complaints. We also recognise we owe duties to the legal profession and to their clients to use the independence we have to plan commercially and budget wisely, as ultimately our costs will be levied on the legal profession."

Janet Hood, chairwoman of the In-House Lawyers Group, says she is pleased the Law Society of Scotland is supportive of a substantial discount. She concedes the cost is "hardly a bank-breaker" for most employers, but argues that in-house lawyers rarely generate complaints.

"We are hoping to pay about a third of what the commission fees will be," she says. "I do hope the commission will listen to not only the In-house Lawyers Group but to the Law Society of Scotland. And if there are lawyers with the commission, they will be in-house lawyers too."

28 comments:

Anonymous said...

Yes well the Law Society want to ensure they get their moneys worth dont they Mr Cherbi.

I would take that 300 quid job a day too if its on offer but Im not an ex cop or lawyer so probably don't have a chance.

Your back pocket is looking very fat Kenny.Better stuff it in more before it all falls oot !

Anonymous said...

"Richard Keen, the Dean of the Faculty of Advocates who criticises the fact the Faculty has no representation on the new SLCC."

An easy answer to that Mr Cherbi.The Law Society didn't want any Advocates on it hence there are none.

You should be able to get your sources to confirm that one easy enough.

Anonymous said...

This is a perfect disgrace given to us by MacAskill.I am in full agreement with you Mr Cherbi that this SLCC wont do any good for clients at all.
What do you think is the best way forward now?

bird flies high said...

took me awhile to read through your piece.i agree the slcc wont be much good to anyone except the lawyers and jane irvine will know all about that since shes been the legal ombudsman long enough

any of those in this commission that irvine has already investigated? what about this ex cop watson.didnt she investigate him too over that scandal you mention?

Anonymous said...

Snouts in the trough and its SNP snouts this time !

Did all these appointees promise to vote SNP to get their posts ?

Anonymous said...

Politicians have sat back while lawyers have made themselves indispensable in society.Many of the politicians themselves are lawyers or use them for their own ends where both get a good deal.Why should we be surprised this latest attempt to look into complaints against lawyers is going to be managed by lawyers again !

Anonymous said...

1st comment says it all and I wouldn't mind the £300 a day too.Do you have to be brownshirt wearing SNP members to get that or what?
How much do you get for burning down shops & looting houses of non SNP voters?Any paintings going astray lately??

Anonymous said...

interesting report on this and I will add my opinion :

SLCC will be as crooked as the Law Society it replaces as long as its full of lawyers and their kind.

Anonymous said...

Getting hit with this bill every year does not do much for bringing in new blood to the profession and I believe this fee to the SLCC will be counterproductive in the long run.

If the Law Society had mor eeffectively done its job as a regulator rather than bring this on us we would be in a much better position regarding your claims over poor solicitor client relationships.

visit http://sacl.info said...

I don't think this SLCC will be much of a panacea for public perception of bias in the legal profession.

Only totally independent regulation will ever solve the problems the Law Society itself has caused.

Anonymous said...

This "commission" wont listen to anyone except itself.A total waste of money all round and both solicitors and clients will be stuffed.

Scrap it I say and start again.

Peter Cherbi said...

#Anonymous @ 6.33pm

That could well be true but don't forget Advocates are also members of the Law Society of Scotland too.

#Anonymous @ 6.55pm

Perhaps the best way forward as some are suggesting is to scrap the SLCC in it's present form and start again.

The former Scottish Legal Services Ombudsman Linda Costello Baker commented at the J2 hearings the LPLA Act which created the SLCC was a mess.It is still a mess and the creation process of the SLCC has been handled very poorly.

What we need, as many now see is a completely independent regulatory body for the legal profession, and yesterday I received note from 'a solicitor' that a legal challenge against the LPLA Act may be in the offing. If that is true, I may support it based on the fact as many of you are pointing out yourselves the SLCC will neither serve the interests of the legal profession or the public in it's present format.

The person to lay the blame for this one is of course the Justice Secretary Mr MacAskill, who is responsible for "Justice" and the injustice he is creating by allowing those who cause injustice to have free reign.

It would be ironic if Douglas Mill's threat of legal action against the LPLA Bill in 2006 now has to be used to save the public interest and give the Government something to think about.

Anonymous said...

Blimey what a change of tune from you !

So you now support a legal challenge by lawyers against the SLCC ? On what grounds ?

Anonymous said...

If there is to be a legal challenge against this damned SLCC I know a few solicitors who will join in.I am surprised you would support such a move though Mr Cherbi.

Anonymous said...

Well those costs will have to be passed onto someone and that will ultimately be the client.

I wish the Law Society had got its act together on complaints.Presumably we would not have faced this situation if there were no mishandled complaints as many seem to claim.

Al (near to the other Al !) said...

"The person to lay the blame for this one is of course the Justice Secretary Mr MacAskill, who is responsible for "Justice" and the injustice he is creating by allowing those who cause injustice to have free reign."

Spot on as ever Peter...

But it was Salmond who appointed this accessory to widespread injustice "Cabinet Secretary FOR JUSTICE" 10 months ago, so the blame for all that injustice in Scotland today ultimately lies at the doors of Bute House, No.6 Charlotte Square, Edinburgh, EH2.

Perhaps "It is time" all those who are suffering injustice in Scotland just now started to PEACEFULLY protest on a frequent basis at the doors of Bute House and let Salmond know that this conflict of interest, lawyer protecting INjustice Secretary is the wrong man to introduce fair and proper reforms to Scotland's discredited justice system, and to give justice to ALL Scots ... not just a select few in the legal, political and elite establishment.

"It is time ... MacAskill was gone" for the sake of 5 million ordinary Scots (not a select few) and for Scotland's reputation in the eyes of the wider world who now see Scotland's justice system as no better than any Banana Republic under a tyrannical dictatorship.

That is certainly the perception to most foreign nationals ... and will remain the perception so long as Macaskill is allowed to continue and Salmond refuses to admit his error of appointing him in the first place and replacing him asap.

But will "King Alex" do anything about it or will he just continue to turn a blind eye?

I think we know the answer to that folks...

Injustice under this SNP administration will prevail and must remain.

Certainly not what i and thousands of other very disillusioned Scots voted for on Thursday 3 May 2007.

Anonymous said...

Peter,

"That could well be true but don't forget Advocates are also members of the Law Society of Scotland too."

Is that right? Aren't they in a separate organisation?

Peter Cherbi said...

#Anonymous @ 6.30pm

How about negligence for starters ? I think the Justice Secretary's "Ministerial Appointments" to the SLCC leave a lot more questions than answers, and the complete lack of disclosure over the interviews, coupled with the wish to apparently keep the Law Society staff migration under wraps, seems to indicate to me the whole affair has been handled very poorly - and as you can see they can't even get the budget right for an organisation which is about to being its work.

4 emails today from solicitors who support that idea - so if you are a solicitor thinking about raising a legal challenge against the LPLA Act, count me in. It will be a good way to get the Act right this time instead of getting it wrong.

#Anonymous @ 6.49pm

I think the above explains my position fairly well on that - as long as perhaps if the case was won in a challenge, the court would set a date by which the SLCC must be operational.

#Anonymous @ 7.21pm

Blame Chief Executive Douglas Mill's policy on complaints for that - not the clients.

#Al (near to the other Al !) @ 8.34pm

I agree with you entirely and Mr Salmond should be attending to matters. It seems he can when it suits, so maybe I should call Donald Trump and ask him how he feels about cleaning up Scotlands legal services market .. nice little earner if he has the ear of the big man himself ...

#Anonymous @ 9.53pm

Yes it seems to be, and while it is true that Advocates belong to the separate Faculty of Advocates - there is nothing in the rules which bars them from retaining their membership of the Law Society of Scotland, bearing in mind they will have been a member all their working lives as a solicitor - because if you aren't a member, you don't practice Law in Scotland.

I had a conversation with Senior Counsel on a case not too long ago, and by chance asked him if he still paid his Law Society subscription. He said "Yes, I am still a member" - even though he is also a member of the Faculty of Advocates.

I also once got to have a quick look at a list which listed many Sheriff's names as still paying their Law Society subscriptions (making them members), and a few Fiscals too ... so in short I would conclude from that list that most solicitors who either elevate to the Faculty, the Bench, politics, or whatever, still remain members of the Law Society of Scotland - making it a very influential club ... and perhaps giving an idea as to why it is so difficult to bring regulatory reform to Scotland's legal profession & legal services market.

I wonder if Mr MacAskill still pays his subscriptions ... or even a retainer for his Master Policy insurance ...

Anonymous said...

Not surprised at all to learn Advocates are members of the Law Society or for that Sheriffs Fiscals etc

Don't you all remember Jim Wallace QC ? Justice Minister and still a member of the Faculty.

My bet is MacAskill is still a member of the Law Society.They NEVER give it up.

Anonymous said...

The way MacAskill is doing everything the Law Society says its a wonder they dont make him their new Chief Exec !

Anonymous said...

Good article on this and you definitely take up the points the scotsman left out on orders from the lawyers no doubt?

I think it boils down to this : The legal establishment are basically treating us like China treats Tibet.We (Scotland) are their own fiefdom to do as they please and nothing is going to stop them from getting their way,certainly not Mr 'bendover' Mcaskill and his friends.

Anonymous said...

Yes you are right ! I asked a friend of mine now retired from the legal profession and he tells me that Advocates and probably all Sheriffs are members of the Law Society too.

I think given what you have wrote that Sheriffs should not be allowed to remain members nor anyone who is not actually practising at the time as a solicitor.

Anonymous said...

Yes most lawyers retain their membership of the Law Society.Holyrood has a few of them too and even though they claim they may be non practising they are still paid up members.

spiked said...

The way this SLCC is going they will need another Ombudsman to cover it.I vote for Cherbi in that post !

Anonymous said...

interesting comments.what happens to macaskill if there is a legal challenge?
I hope he is forced to resign.

Anonymous said...

Theres no one else to blame for a mess like this but the public themselves.They allow these people to get away with this all the time so people should quit nagging about it and go out and DO something about it.

Anonymous said...

Worth a look into this one.

A story which recently appeared in a newspaper told of a silly old spinster who left over £2million to charity.

Someone from one of the charities asked why it was taking so long to hand the money over and discovered the lawyer had bought his son a new house and car from the estate.Banks had done very well out of it too.

No charges and the Law Society wont be acting on any complaint.

Peter Cherbi said...

#Anonymous @ 5.42pm

Yes I will look into that story so thanks for reporting it.

If you have any further details please pass them along to me.

For the record, if you are going to give to charity, you may as well do it when you are alive.

If you leave giving the donation until after you are dead via your will, you stand a great chance of some of it going into either the Executor or lawyer's pockets, as I have noticed in many cases reported to me over the years and when that happens, whoever pockets the money rather than your intended recipient usually gets away with it.