Saturday, April 26, 2008

Law Society policy blunders on legal market reforms leave public in the cold, favouring control of regulation & access to justice

The Law Society of Scotland on Thursday, published its paper on the 'development' of the legal services in Scotland, which many hope will be fully opened up to widen competition in the legal services market.

There is little surprise the Law Society's 'proposals for change' are little more than a 'policy for market protection' where the hugely profitable monopoly on legal services in Scotland, for so long enjoyed by solicitors who are members of the Law Society of Scotland faces being broken up, much to the anger & bitterness of the profession's governing body which now finds itself struggling to retain control over regulation, legal services and the public's access to justice.

The Law Society policy paper on alternative business structures can be downloaded direct from the Law Society of Scotland in pdf format : Law Society of Scotland ABS policy paper

To read some of my earlier coverage of the access to justice issue, see here : Access to Justice in Scotland

While most consumer organisations such as Which?, the Scottish Consumer Council, many campaigners & consumer groups, and even the Office of Fair Trading wish to see the Law Society's monopoly on access to justice curtailed, the legal profession have unsurprisingly, clung to their policy of retaining as much control as possible within their proposals, even citing themselves as being best placed to retain regulation of the legal services market in-house, keeping the spectre of lawyers investigating lawyers to the fore which has become one of the professions biggest burdens, and greatest liability.

The President of the Law Society of Scotland, Richard Henderson, said in a press release that “We do not think that the Society should simply follow the English model but should find solutions specifically to meet the needs of the Scottish public, ensuring proper access to justice, and Scottish business, as well as creating opportunity for firms based in Scotland to compete in a growing international market.”

Of course not Mr Henderson, it would not be in the interests of the Scots legal profession's sole control over legal services and an individual's access to justice, if the 'English' reforms as per the Clementi Report were to be implemented .. as ordinary Scots would then be able to choose for themselves exactly who could handle their legal affairs, at what price, and perhaps even better, individuals would not find themselves without legal representation just because it was in the Law Society of Scotland's interests to bar them from access to justice - a policy which has been seen & reported many times in the media over the years ...

The Law Society's paper, extending to some 20 pages, inevitably breaks down to the issue of retaining regulation within the legal profession itself, where regulation has always been seen as keeping control over the very existence of a closed shop legal services market, and the consumer's access to justice.

The report states on page 16 :"The market for legal services requires regulation. legal services impact on some of the most important aspects of people’s lives. legal matters can be complex and involve a range of ethical considerations. regulation helps ensure that solicitors or advocates provide their services to an agreed standard and, if not, can be subject to sanction. A free market could not offer the consumer safeguards required. Firms of solicitors in scotland are currently regulated by the law society of scotland."

Surely after all the problems with allowing the Law Society of Scotland to regulate the legal profession for decades, which has seen complaints hit almost eight thousand a year, negligence claims at an all time high, exponential levels of corruption throughout the legal profession and almost wholesale denial of individuals right to access the justice system, the Law Society and the legal profession itself cannot ever be trusted again to maintain any form of regulation against its own members, given its abysmal failure over the years to perform its role as self regulator of all lawyers in Scotland.

Readers are left in no doubt whatsoever on the determination of the Law Society to keep control over regulation of lawyers, with further claims in the policy paper that "The council believes that regulation is the key issue in relation to alternative business structures. There should be appropriate regulation of the delivery of services provided by solicitors and advocates in Scotland, whatever business structure delivers those services, to ensure that the core values of the legal profession are protected and that service quality is maintained"

Again however, the current state of the Scots legal profession which sees an almost daily scandal involving 'crooked lawyers' and consistent, almost determined failures by the Law Society over regulating rogue solicitors who have built up long lists of ruined clients, demonstrate that the 'core values of the legal profession' and claims of 'quality' which the Law Society speak of simply do not exist.

On page after page, the Law Society loses the focus over developing the Scots legal services market in both the profession and public interest, instead preferring to maintain the tired worn line on retaining regulation for itself, confirming that what this debate is really about is control over the legal services market itself, and ensuring the Law Society retains its position on regulation, which has already been split to the new Scottish Legal Services Complaints Commission.

On page 17 of the legal services report for instance, the Law Society simply can't help itself and comes out with the following ridiculous statement : "The council takes the view that the society is the most appropriate body to regulate entities delivering legal services in scotland. The society is the only body in scotland with relevant experience of regulation of all areas of legal practice. its capacity, however, would need to be enhanced to take on additional functions."

Rather than focus on retaining control over the legal services market, just to ensure that member solicitors keep the profits from representing clients, the Law Society really needs to come away from this insane, obsession with retaining regulation just so it can demonstrate yet again how lawyers so poorly regulate their colleagues but as we see from the general tone of the policy paper, there doesn't seem much chance at that.

All in all, a very poor showing from the Law Society of Scotland, and one which typifies the policies of a few within the Scots legal profession who have determined that rather than embracing the opening of the legal services market in the public interest, the focus will be on continued control and enforcement of the legal professions right to control and monopolize legal services & access to justice.

Hopefully the public's voice and that of elements within the Scots legal profession itself who are for the expanding of the legal services market will win the day and ensure the Scots national and public interest is served by giving the consumer freedom of choice in legal representation, leaving the Law Society's antiquated views to the dustbin of history, where the Law Society itself, clearly shows it belongs.

Now we must wait & see if the Scottish Government can struggle with Justice Secretary Kenny MacAskill to fully open up the Scots legal services market and give us, the public, the choices we should have the right to make, rather than follow Kenny MacAskill & other parliamentarians highly personalised views of protecting the legal profession's profits from the public's right to choose better, less crooked, & perhaps cheaper ways of doing things in the world of law & justice ...

As a final comment, I did like this little snippet on page 18, where the Law Society policy document states "All activities of a business structure must have appropriate indemnity insurance and fidelity cover, at a level approved by their licensing regulator, which must be not less than a statutory minimum level. The minimum terms of the protection afforded must be made explicit to clients in all transactions"

Fantastic stuff - you couldn't make it up ... clients have never been told or made aware of the [little] protection offered to them via the Law Society of Scotland's infamously corrupt Master Insurance Policy - which even saw Chief Executive Douglas Mill intervene directly in claims & complaints against colleagues and tell the occasional lie or two to Parliament over it .... so why start pointing these things out now ?

Onwards please to a fully opened legal services market - give Scots the same rights as the rest of the UK to an accountable, competitive, competent, well respected, and independently regulated legal services market - which Scotland surely deserves after all these years of failure.


Anonymous said...

What a surprise ! The lawyers are afraid they will lose their income from ripping off clients.

bet there will be a luv the lawyers version in the hootsmon on monday so look out for it!

Anonymous said...

Interesting article here on the same subject

I think the Law Society is generally making a mess of things.Maybe its time to start afresh on that score too.

Anonymous said...

No use expecting serious proposals from the Law Society over this or anything really and as you say its time the profession was rid of this monstrosity.

Good luck with your work Mr Cherbi and just for the record, many in the legal profession actually agree with you on this and some of the other issues you highlight.

Anonymous said...

Lawyers should simply never be investigating other Lawyers, It simply doesn't work.
The quicker they realise this the better placed they will be to deal with their corrupt system and try and gain public respect again for the profession which seems to be dwindling

Anonymous said...

Anti-competitive, protectionist - just a few of the (printable) words which describe the Law Society's blatant and unashamed fetish for control, its conspicuous determination to maintain its long since discredited monopoly - regardles of the cost to others or the reputation of the subject it currently priveledged to represent.

Peter Cherbi said...

#Anonymous @ 11.06am

Yes I suppose there will be a 'version' of this in the law section of the Scotsman.

#AnonymouS @ 11.42am

Thanks. I read Ian's article and it does seem the proposals put forward by the Law Society are indeed a damp squib. Now we have to wait for the Scottish Government's policy on this - whether to protect lawyers or protect the public interest, and if they can't protect the public interest when it comes to the legal system, giving people freedom of choice for their legal affairs, either the EU or Westminster will have to step in to do so.

#Anonymous @ 7.20pm

I agree with you and I for one never expected anything other than the policy document now published from the Law Society.

A case of the leopard never changes its spots perhaps ...

#Anonyumous @ 9.56pm

I agree entirely with your comments. The sooner regulation is taken away from the legal profession in all it's forms, the better, but as can be seen from this latest policy document on legal services - regulation is seen by the profession's governing body as maintaining control not only over its members, but also over the legal services market. A good enough excuse to take regulation away from lawyers, and quickly too ...

#Anonymous @ 12.05pm

Yes, quite ..and it seems many of those same miserable values of the Law Society are shared by the current Justice Secretary, who has gone out of his way to protect the legal profession from these access to justice reforms.

Its long since past time for change, but that change must come now, rather than allowing this deeply corrupt system try to preserve itself in perpetuity.

Anonymous said...

wise words Mr Cherbi and if I had anything to do with it I'd put you in charge of the whole thing to sort it out

can't say I have ever read as detailed a piece from a non lawyer in my life on the inner workings of the legal mafia in Scotland

R.McDonald, Fife said...

A very complicated issue but I'm sure you know what you are talking about.

I think it boils down to this : The lawyers want to keep control over their market which is understandable because they make so much money at it - a bit like British Telecom etc so the best thing to do is to break the whole legal services market up and let people or other companies come into it.

I will keep a look out for more on this and I support your campaign to open up this monopoly.

Good luck and best wishes.

Anonymous said...

Excellent report Mr Cherbi.Your writing really does the issue justice which the lawyers cannot !

Anonymous said...

Thanks for the warning.Will stay as far away from lawyers as I can.Hope we get some better people in the legal business.Maybe you might like to do something someday ?

Anonymous said...

I think we get the message - lawyers cant be trusted when it comes to breaking up their huge empire and if those videos of MacAskill are anything to go by he cant be trusted either.

Let the OFT do it and show us up.It will be good for everyone to see just how much MacAskill struggles to protect lawyers and who in their right mind would vote for someone who protects lawyers - only lawyers

Anonymous said...

Yes you are quite right Peter - the Law Society is unfit to represent the profession at large and the sooner the rest of us wake up to that the sooner we can make progress on some of the things you report.

I like your videos from the parliament - adds a distinct touch to your writing.

Keep up the good work.

Anonymous said...

Law Society unfit for purpose

Anonymous said...

All this proves is the Law Society listens to no one but itself a fact many in the profession have known for years.

No vote no say in things and no chance to argue for change but we are expected to pay up every year or lose our practising certificates.I'd agree with you that such a system is in dire need of reform and its a great pity it takes a non lawyer to fly the flag which you do so well.

Anonymous said...

If you go to and read this :Philip Rodney, chairman of Burness, said Scottish lawyers are unlikely to want to work according to someone else's rules, which could happen if third parties buy significant stakes or even whole businesses. He said: "One of the things that is enjoyable about professional legal practice is that sense of independence we have. Just now we own ourselves. We're not working for other masters." all your readers should understand why legal services must be opened up to competition.

Lawyers are very used to running themselves as Rodney points out - a recipe for the same disaster which as you point out the profession is now in!

Peter Cherbi said...

I agree with all of your comments on this subject, and strangely enough this week I have received a lot of contact from solicitors who are wondering themselves where the Law Society of Scotland should go from here ... and if this ABS policy proposal is anything to go by, the Law Society needs to be taken in hand by its membership and cleaned up quite a bit. Not a difficult thing to do really .. and high time for some improvements ... which could do the industry a lot of good in terms of public respect, less worry from clients - and less complaints too.

#Anonymous @ 6.54pm

Yes thanks, I have read that article and noted Mr Rodney's comments. What better an example for opening up the Scots legal services market ?

Anonymous said...

Surely it is now time for those within the legal profession who post comments here to organise a demonstration demanding their right to vote and exert some control over those who allegedly represent their - and the public's - best interests?

A dozen lawyers wearing brown paper bags over their heads and carrying placards outside the Court of Session would I am sure attract the required media attention - and also allow them the protection of anonimity.

Easily done....if the will is there.

Anonymous said...

last comment - now that would be worth filming !

JaniceS said...

"surely its time.."

Well the problem as Peter knows well himself is that if any of us do speak out we end up thrown out of the profession by the Law Society itself.Better to let Mr Cherbi gather the ranks of those who wish to change things then put the reforms to the membership.

Incidentally did you know it was Peter himself who started the call for one member one vote? Not bad coming from an outsider.I don't mean to swell your head Peter but perhaps we should put you in the Chief Executive's chair for awhile and see if you can do more for us than previous wasted efforts!

Anonymous said...

Good.I'm pleased someone had the guts to come out and say this.The LSS's ABS paper is ridiculous - another missed chance.

Anonymous said...

janices : male or female?

You sound like you've been in starbucks once too often but we do need a change or a break from this.

I like the one member one vote thing.Going to propose it or is that to be left to Cherbi too?
Which one of the b******s at the LS will cut your tendons in retaliation?

Don't say you weren't warned!

a paper bag over the head said...

Yet another failure by the Law Society showing us why we need shot of it.

Anonymous said...

TO Janice of the legal profession;

The buck stops there.

Anonymous said...

A client demanded his papers two weeks ago citing pages from your blog and the partner involved has not been back in the office since.I hear there is a substantial amount of money involved and two properties unaccounted for.The Law Society are rumoured to know where the solicitor is but wont tell anyone.Client calls in and asks what to do.I have told him to get in contact with you and call the newspapers.Good Luck.