Wednesday, August 27, 2008

Consumer protection in doubt as Scottish Government continue 'go slow' on legal regulation reforms

It has been revealed the intention of Government providing the public with added consumer protection in the form of independent investigation of complaints against lawyers in recent legislation has come to a grinding halt.

The Scottish Government's handling of the formation process of what was to be the 'independent' Scottish Legal Complaints Commission has been condemned by some as "little more than a back room coffee break", where officials and Ministers have lacked the understanding or will to proceed with proper implementation of legislation arising from the stormy 2006 Justice 2 Committee investigation of regulation inside Scotland's notoriously corrupt legal profession of which you can read more about here : Parliament debates complaints against the legal profession

So poor the effort which has been made by Kenny MacAskill's Justice Department, the legal profession itself has been allowed to take over most of the process, arguing at each stage it must have control over regulation of complaints at all costs, overriding any plans to give ordinary Scots a greater degree of safety in dealing with solicitors.

Some of my earlier articles reporting the demise of the SLCC before it even begins its work :

Law Society ‘writes rules’ for Scottish Legal Complaints Commission as confidence drops in new regulator

Rough Justice for clients as new complaints commission refuses to investigate cases mishandled by Law Society

While most consumers and campaigners felt they would be getting a fairer deal under the Legal Profession & Legal Aid (Scotland) Act 2007, which created the new 'independent' Commission charged with investigating service complaints against Scotland's 10,500 solicitors, in reality little will change due to the Law Society's successful work in infiltrating the SLCC with around 40 members of its staff who for years have operated under the Law Society's policy to damage and destroy client complaints against solicitors at any cost.

You can read some more about the problems surrounding the Scottish Legal Complaints Commission here : The not so independent Scottish Legal Complaints Commission

One of the reasons perhaps that so many lawyers across Scotland will happily pay around £307 as their annual levy to the new Scottish Legal Complaints Commission to ensure complaints are dealt with by ... their colleagues from the Law Society of Scotland who are being parachuted in by the Law Society to keep control over complaints against lawyers.

You can read more about how Jane Irvine, the Chairman of the Scottish Legal Complaints Commission feels the SLCC can ‘serve’ the public in an ‘independent’ capacity in the Law Society’s ‘Journal’ website here : On the scent …. an interview which seems to indicate the SLCC will be on a short leash from the Law Society despite claims of ‘independence’.

As things stand, there seems little or no effort on the part of the Scottish Government to do anything about the lack of independent regulation in the legal profession, which has seen spiraling levels of financial frauds against clients by solicitors, to the point that conducting legal business in Scotland is now widely seen as unsafe and to be avoided, after continuing scandals in both Scotland's civil and criminal legal systems reach uncontrollable proportions.

A leading consumer representative asked for his thoughts on the weak consumer protection for clients of legal services in Scotland gave the following slamming indictment of just how troubled the Scots legal profession is : "You would be better withdrawing £2000 cash from your bank account and burning it in your garden than using the current framework of legal services in Scotland - because both actions now produce the same result … a waste of money and a considerable degree of personal harm."

This is certainly bad news for us all, as at one stage or another we all need legal representation but to find trustworthy legal representation in Scotland seems to be harder than finding a needle in a haystack - a needle fast becoming a rarity taking into account some of the emails I receive from people who find themselves being ripped off right left and centre by lawyers whom the Law Society of Scotland will do nothing about.

With recent further refusals to allow applicants other than solicitors into the legal services market, along with stalling by Mr MacAskill on the Law Society’s FOI exemption, which will run past 1st October 2008 while the allegedly ‘independent' SLCC will be FOI compliant .. the prospect of any consumer protection against rogue lawyers does not look good under the current regime where there appears to be no will to be seen to do the right thing and give the public a helping hand in complaints against rogue lawyers.

In all this delay, and prevarication by the legal profession for increased consumer protection, there has to be of course, a motive. The motive, simply, is money.

If you increase regulation or bring in independent regulation, the chances are the scams, client frauds, overcharging and poor service which is normally associated with legal firms in Scotland will go down, affecting lawyers personal income and profits .. just the same as would happen if the Scottish legal services market was opened up to competition – another issue still on the stalling books.

The reasons for Mr MacAskill’s go slow on reform of the Scottish legal profession thus become clear .. its all about money and protecting one’s colleagues share of the market, even at the expense of the public and the integrity of justice itself, as the following report from today’s Herald seems to show …

Law firms still making large profits despite the downturn


Scottish law firms have posted huge profits over the past year in spite of the economic downturn that has engulfed the UK economy.

In a survey of the UK's 100 largest law firms, equity partners at Scottish companies made an average of £343,000 profit, a 4% increase on the previous year, according to Legal Business magazine.

However, despite the current "rude health" of the UK's legal profession, the magazine warned that Scottish companies were among those which would face uncertainty as the UK's economic woes continue.

Among the companies that appear to be thriving amid the credit crunch are Dundas & Wilson - Scotland's largest law firm - which saw a 23% increase in turnover to £74.8m.

The firm's profit margin of 41% was the largest of the top 10 Scottish companies included in the survey. Equity partners at the firm - those that take a share in profits - made an average of £379,000 each.

This year also saw Brodies, Scotland's fastest-growing law firm, see its turnover increase by 23% to £37m compared to last year.

However, Tods Murray saw a drop in turnover for the second consecutive year, taking the company out of the Legal Business top 100 list.

James Baxter, editor of Legal Business, said: "Taken at face value the UK legal community looks to be in rude health: UK firms compete well overseas, firms are billing well and clients are broadly happy paying.

But dark clouds are on the horizon.

"Managing partners from some of the UK's largest firms have told Legal Business that they would be happy to achieve zero growth in the next 12 months, meaning that most are expecting to report a drop in profitability for the first time in a decade.

"The credit crunch, whilst not showing much impact on this year's figures, has UK law firms worried.

"There are precious few deals being done, the usually lucrative financial services markets have dried-up, and the commercial property market has all but stalled."


Anonymous said...

criminals and high profits seem to go together these days so waht does that make lawyers ? worse than criminals me thinks !

Anonymous said...

A sham from start to finish, and no difficulty discovering where Ms. Irvine's allegiances lie in The Journal article you provide a link to;

"We've been very grateful for the co-operation by the Society and Faculty so far......We have to make this work. If it doesn't work it will cost the professions more money".

And speaking of the need for a 'new' approach;

"“I see its greatest weakness at the moment is still the inconsistency in quality of reporters,...." - so the SLCC transfers those responsible for these failings to its own Office.

Ms Irvine is also at pains to reassure the legal profession that "There may have been justified alarm within the profession at some of the early proposals regarding the Commission, most of which did not in the end become law,...".

Time for the Scottish Consumber Council, Which Magazine, the OFT and the Competition Commission to stand up and move matters forward - while the legal profession (aided by its political poodles)kicking and screaming every inch of the way no doubt.

£NP - the bank for business said...

Hi Peter.

Yes spot on.Its all in the money for the SNP who despite Scots thinking they will do something for them, will only do something for business.Thats business spelled bu£ine££.

Anonymous said...

Yes.All those people getting thrown out of their houses or being made bankrupt please give a thought for some c*nt lawyer with 4 houses and 5 cars
You know what to do all

Anonymous said...

Quite right Mr Cherbi.There is too much feet dragging on this issue by the SNP.It almost makes me think the SNP are funded by the legal profession itself.
We do need a change and I am all in favour of getting rid of self regulation from the profession but not onto some ridiculous mash up of ideas such as the SLCC.
Oh the link to Jane Irvine's interview -- surely she can't expect anyone to take her seriously after that !

Anonymous said...

£343,000 profit !

Does that include any of the Scots legal bigwigs named in the the secret Lichtenstein bank account scandal or do they get away with it because they are who they are ?

Anonymous said...

"You would be better withdrawing £2000 cash from your bank account and burning it in your garden than using the current framework of legal services in Scotland - because both actions now produce the same result … a waste of money and a considerable degree of personal harm."

No just donate it to charity and think about why you needed to use a bloody lawyer in the first place.
Don't get caught up in run to a lawyer living just because all these bastards say you can sue and get lots of money because the only ones making the money are them not anyone else.
Sod lawyers get a life everyone and if you don't use them they don't make money !!!

Anonymous said...

Peter I better post you that interview with Irvine before the Law Society lose it !

On the scent
by Peter Nicholson

Interview with Jane Irvine, Chair of the Scottish Legal Complaints Commission, on how the new body will operate and keep itself informed on legal practice

The Journal, July 2008, page 12

There seem to have been many red-letter days for the Scottish legal profession in the last couple of years. One that is likely to assume more significance for the ordinary practitioner than most is 1 October 2008; and though it will probably take a while before its impact is really felt, it can truly be said this time that things will never be the same again.

That widely predicted date has not in fact been finally confirmed, though on the Scottish Government’s timetable it is still the point at which the Scottish Legal Complaints Commission, among other duties, takes over the Law Society of Scotland’s role in receiving complaints against solicitors and adjudicating on inadequate professional service (IPS). Even taken at face value, however, the statement begs some important questions as to what, when and how. Any clients out there currently nursing their wrath to keep it warm as they save their grievances for the Commission, and equally those who hoped it might take a fresh look at complaints which have previously failed, are likely to be disappointed.

As an experienced complaints handler, Jane Irvine, chair of the new Commission, expects a rush of initial enquiries but is comfortable with its decision, embodied in its draft rules, not just to decline to entertain matters already in the past, but only to accept cases where the initial instruction – as opposed to the service the subject of complaint – was given on or after the launch date.

“We took counsel’s advice, and whilst we have the ability to take on any case that dates from before our opening, there are some limitations to the powers of awarding redress in those cases, so we had to decide on a clear way to start. We didn’t want to start with two sets of rules in operation on compensation, and it seemed to us the easiest way of identifying cases and creating a cutoff point was to look at the point when the service commenced.”

Acknowledging that difficulties may arise in deciding when something amounts to a new instruction, Irvine still believes this will be the easiest way of making it understandable to complainers, and avoid having cases being dealt with under both the old and new systems.

“The other alternative is looking at when the IPS actually occurred, which is going to be very difficult to verify as soon as a letter comes in the door. I think it would take us down the route of deciding if there was an IPS, before we’d even started an investigation, which I think would be very dangerous. Here we have to decide when the service started, which is a kind of neutral test.”

Budget points

So a slow start, albeit the Commission will from the outset take over the work of the Scottish Legal Services Ombudsman, a post Irvine has held for the past two years. But if watching your margins or your cashflow, you will be well aware that the first nine months’ operational life of the Commission – its financial year runs from July to June – will cost you a cool £307 as a practising solicitor, unless you can claim a discount as an in-house lawyer or less than three years qualified. Would that not suggest a rather large annual bill when the Commission is up to speed?

Irvine admits to having to guess at how many of the initial enquiries will translate into case files, but emphasises that the profession will not lose out. “We are not like most public bodies; we can carry monies over. If we don’t spend all our monies in the first year they will be carried over into the second year and will reduce the levy in the second year. But I think anyone budgeting for this type of work is guessing in the dark.”

The funding route, she points out, differentiates the Commission from non-departmental public bodies, “and I think it is important to recognise this as it means we are and will be more independent from government than – say – my office as Ombudsman or other NDPBs. We recognise concerns about us being independent of government”.

She adds that while the operating plan shows a staff of 45, they won’t all be “sitting twiddling their thumbs from day 1”, but will be phased in as work increases.

Open forum

Another concern of the profession has been whether a body required by law to have a lay majority at the stage of final determination, and with no prescribed qualifications for its caseworker staff, will have the knowledge of legal practice needed to pass an informed judgment on IPS questions. Considerable thought has been given to addressing this on both an initial and a continuing basis, enshrined in what Irvine labels the “three philosophical areas that this Commission intends to uphold”.

First comes its independence: “we are not a consumer champion, nor are we there to support the profession”. But it will not retreat into some judicial isolation: three advisory forums, one for consumer interests, one made up of practitioners, and the third a mediation forum, should ensure that the Commission “keeps in touch with what is really happening in the market”, as Irvine puts it. And finally there is early resolution, with procedures designed to screen cases quickly and proceed to investigation if they are accepted, and also the incentive via stepped case fees to resolve disputes at an early stage – of which more shortly.

The forums will have an important role. Irvine recognises that “the longer you deal with complaints, the more you yourself get sucked into the system, and we will need constantly to bounce against the consumer panel and the practitioner panel to say, have we lost it here, are we looking at this correctly?” Hoping that the profession will deploy with the Commission some of the goodwill it has shown in supporting the Society’s reporter system, she adds: “I’m sure the consumer panel will occasionally say, ‘This is ridiculous, if you look at other areas, they’re more modern than you’, and I’m sure the practitioner panel will say ‘Ah, but when you’re doing this realistically you can’t hit those timescales’, or ‘Are you aware of these constraints that bind us’, so I think the Commission has to be very careful to keep in contact with the outside world, to get the best of both systems.”

Skill level

With her background in addressing service issues across a wide spectrum, ensuring the right mix of skills is something Irvine is particularly keen to stress. “I’ve done police complaints, I’ve done communication service complaints, I’ve done funeral complaints, you need that correct mix, you need the practitioner view of it as well as the lay view of it to determine these complaints correctly. So we will be ensuring that we have the correct level of expertise within the Commission.”

The initial plan is to have investigators in four specialist teams: conveyancing, family matters, litigation, and estates and inheritance, albeit some crossover is likely. “We think initially some level in specialisation in staff reflecting the types of historic cases that have come through will be helpful. But over time we think that specialisation will disappear.”

Unlike the Society’s complaints system, where case managers deal with the parties until the issues are identified and a reporter then examines the files and proposes an outcome, the Commission’s case investigators will have to combine both functions. I suggest it’s a very demanding thing to be an impartial judge of people who may be giving you a hard time over the phone.

“Yes, but that’s the skill of being a case investigator and that’s why they cost a reasonable salary these days. They’re highly skilled and experienced people who will be used to dealing with people on both sides, staying independent, staying objective and dealing with a sophisticated profession and sometimes sophisticated complaints. So they have to be skilled people, yes. Nobody’s saying it’s an easy role.”

Irvine emphasises that investigators will attempt to ingather the evidence they think they need, and not confine their attention to the files as is common at present – without detracting in any way from the importance of solicitors keeping proper records, a point on which she welcomes the support of the Society’s Philip Yelland. “We’ve tried to ram home on a number of occasions before this that if you keep good records, then clearly that will be important to us, but they have to be proper records, contemporaneous records and records that are auditable.”

And timescales – how will they compare with the Society’s recent performance of concluding around 90% of cases within nine months? The Commission’s target is a month for the screening stage, four to six months for the investigation, then two to four weeks putting the suggested settlement to the parties, after which it would go to the commissioners if necessary.

Flexible body

Irvine regularly returns during the interview to her desire to see cases resolved without going right through the process, and believes that some solicitors’ firms still need to do more to attempt a constructive settlement of complaints at an early stage. Equally if complainers go straight to the Commission, it will refer them back to the firm to see if the matter can be resolved internally. The levies to be charged when complaints are upheld will reflect this: there will be no fee at all where a case is resolved before even reaching mediation, a £200 charge where settled by that method, £250 for resolution by an investigator (£350 for a linked repeat finding within two years) – and a whopping £1,000 if it goes all the way to the commissioners.

Mediation, incidentally, is intended to work much as it does in the sheriff courts: an in-house manager will have a panel of mediators to call on, who will receive a case fee. That will allow flexibility in location and budgeting, as well as quality management and relevant areas of expertise.

But is there any incentive on a complainer to settle, and what will happen to the case fee where they simply go all the way in the hope of getting a better result? “We are leaving ourselves with a discretion not to charge that case fee if for example an offer of settlement has been made which is not bettered by the Commission’s findings, or if we’re just satisfied that the practitioner has made all efforts to settle it and maybe the dispute was wholly intractable and required a third party intervention, so we’re being very careful that it’s not a hammer on the professionals to settle and whatever they do they’re going to be charged this case fee.”

Flexible and proportional is also something of a mantra for the way Irvine sees the rules working. Determination committees can consist of between three and nine commissioners – there has to be a lay majority – and “we’re reserving very clearly the right to conduct it as we want to: we will not be getting into full adversarial mode, and we’re reserving the right to do it on documents only, by email, not necessarily by meeting in Edinburgh, if that’s appropriate”.

It came as something of a surprise to read in the draft rules the possibility of members of the public attending Commission hearings, especially as the Act restricts the circumstances in which a solicitor can be named. But Irvine recognises that this would be the exception rather than the rule. “It could happen if it was a big case, a matter of public interest that was already out in the press, or if it related to a crux matter on the way say conveyancing was conducted or something like that, but generally these are private contracts….

“The only thing we’ve bound ourselves to do is to do it proportionately. Most of the rules give us a discretion to act according to the seriousness of the case. There’s no point in wheeling out nine commissioners at huge cost to determine a small case.”

Reporting function

Similarly when it comes to publicising Commission decisions, Irvine accepts the difficulty of publishing useful case studies, because so much often turns on what happened during the actual instruction. “But we will also have two further powers – one is the oversight over misconduct, and the other is the ability to publish a report if we were concerned about any particular area of practice, and I think that’s an area we might use constructively.”

They might, for example, make a special study of conveyancing cases – “where are the problems arising for the practitioner and the client, is it because people don’t understand what is happening, or because solicitors are trying to do it for too little money these days, what are the problems? So I think we could use that possibly more than publishing individual case reports. But I don’t know. A lot of this depends on what comes through the door.”

Also to be fully worked out is liaison with the professional bodies, so as to fulfil the Commission’s additional supervisory roles without impeding efficiency. “We have to keep this careful balance of having an oversight but we must work with them. What we can’t have is cases not being dealt with efficiently because perhaps all three of the bodies are doing a separate investigation into a particular case… The reporting structure in the rules is not only to avoid duplication, it’s to make sure that if there’s an element of service that tipped into misconduct because it’s a repeat failure, then we can report that to the Society or the Faculty.”

Common interest

There can be no doubt that the Complaints Commission will bring some fresh thinking to professional service issues, and while Irvine describes the Society as having had to “battle for a long time with old legislation”, she believes that its present system has defects the Commission can improve on.

“I see its greatest weakness at the moment is still the inconsistency in quality of reporters, and the variation in the depth to which there is a true investigative process working within the Society. And inconsistencies between committee determinations. I’m very conscious that we have to be much more consistent in the way we operate. I know there are also difficulties in bringing case management and investigative structures together, but we think that’s a better way of working.”

There may have been justified alarm within the profession at some of the early proposals regarding the Commission, most of which did not in the end become law, but it is safe to say that legal practitioners should now follow the lead of their governing bodies in embracing the new regime.

As Irvine sums up:

“We’ve been very grateful for the co-operation by the Society and the Faculty so far. I’m sure there will be areas that we agree to disagree on or that cause difficulties for one of us, just as I’m sure there are some parts of our system that complainers will find difficult or they don’t like, but at the moment there is a terrific degree of goodwill. We have to make this work. If it doesn’t work it will cost the professions more money.”

Anonymous said...

I don't think the issue of "consumer protection" is much on the SNP's mind from what you write Mr Cherbi.

Perhaps someone should criminalise regulation of lawyers instead of letting them get away with corrupt self regulation.

idiotproof said...

You have to be a vote winner to get attention with the SNP Mr Cherbi and if they clamp down on lawyers the lawyers will vote for someone else who wont.

News Release... said...

News Release...

Ignored victims of the Scottish INJustice System, under 16-month Scottish National Party (SNP) misrule, planning to take their cases to the door of Bute House in central Edinburgh - the official residence of the First Minister of Scotland, Alex Salmond MSP / MP...

Please contact me should you require further information.

Your time and interest is appreciated.

News Release

No justice in Scotland under Alex Salmond and the SNP

No justice in Scotland under Alex Salmond and the SNP


Anonymous said...

Yes Peter you are spot on and I wouldn't be surprised if the Law Society are doing the SNP a few favours so they go slow on these reforms you are talking about.After all as you point out its all about money at the end of the day!

Anonymous said...

Thanks for the good effort Mr Cherbi.I have had no end of trouble with my solicitor over my divorce.I think he and my wife's solicitor decided to squeeze us both for the maximum amount of money while ripping our family apart.I hope both of them rot in hell or someone puts them there.They are the foulest scum which serve no purpose other than bad in society.

Anonymous said...

No scum lawyer is worth 330k on top of all the ruin they cause

Anonymous said...

I just finished reading the interview in the comments.
What exactly is Jane Irvine going to do different from the Law Society if her organisation is going to be full of Law Society staff??
What a rip off by the SNP.How much did the legal profession slip into their private coffers to cover this one up??

Anonymous said...

Have to agree with the last comment - the SNP are not interested in people just money and all this with the lawyers shows one thing more than money - they have something on them and thats why the SNP are going slow on these 'reforms' you write about.
It must be good dirt so get investigating !

Anonymous said...

There are some very interesting comments in that Herald story you link to Mr Cherbi.
You need to take a look at what 'landcourt' is going through but he/she is putting up a stiff fight.

Meanwhile more lies from the SNP today :

Anonymous said...

Wow am I NOT surprised Peter.

feathered nest said...

You have an interesting point of view over the legal profession Peter.I can see why the vast majority of lawyers are now to be avoided in Scotland and whoever gave you that quote about burning money is spot on.
I have read a lot about difficulties with lawyers on the internet and I have come to the conclusion it is caused by getting into this way of complaining to the lawyers own body which starts all the problems.

If I can advice people.Do a spot of DIY when you have difficulty with your lawyer and think ahead.I will leave that up to your readers how to interpret !

Anonymous said...

If I can advice people.Do a spot of DIY when you have difficulty with your lawyer and think ahead.I will leave that up to your readers how to interpret !

Now you are talking ! said...

I've been reading this site like a lot of people involved in troubles with lawyers and I can only say the best advice is to avoid using a lawyer if you can.They will never change.They are all thieves and leaches and will always block any attempt at reforming their crooked ways.
But - consumer protection begins with consumers and we can all protect each other from these legal crooks if we try hard enough !

Anonymous said...

You are completely on the ball Peter Cherbi,I have been writing to the Justice Secretary for a year about the way the Law Society treated my complaint over our lawyer who took our titles.They will do nothing about it and neither will Mr MacAskill or any of his staff.I am very frustrated by what is going on and ther is no help for victims of these crooked lawyers and I think its time someone sorted them out once and for all.

News Release... said...

# Anonymous @ 4.25pm

"... They will do nothing about it and neither will Mr MacAskill or any of his staff [Could have told you that YEARS AGO!].I am very frustrated by what is going on and ther is no help for victims of these crooked lawyers and I think its time someone sorted them out once and for all."

You might be interested to know that we are hoping to organise a March / Gathering / Vigil / PEACEFUL Protest against all forms of Scottish INjustice in the not too distant future - ending at Bute House meeting Salmond, MacAskill et al and making our cases of Scottish INjustice known to them loud and clear ... including the many they are already well aware of! ( ).

More details here ( ) and here ( ).

It's NOW or NEVER folks ... and IT IS TIME!

Join us in this essential march against all forms of Scottish INjustice under MacAskill's, Salmond's, Sturgeon's and Scottish Nasty Party misrule.

It's in your hands to end the INjustice and corruption that is rife in Scotland today - under MacAskill's and Salmond's crooked and corrupt stewardship.

Time for action against MacAskill's corrupt regime and time he was kicked into the dustbin of history where he well and truly belongs...

Anonymous said...

Lawyers coming up roses even in a recession.Why am I not surprised !

Interesting idea about breaking up the legal market.Wonder why no one has tackled that yet ? seems an obvious choice !

Anonymous said...

my mail even get blocked. I can't fight these people by myself. they killed my mother and they will kill me for the buck. as you know what my mother will said. they know it too. I need my brothers help becuase they have been using me and abusing me for all this time. I prya my will help me. wes. I have asked wes for help. I don't know what else to do

Anonymous said...

they have all pretended that I don't exists for all these years so how am I too feel? I did my 2 years and now I just want to be free. I cannot fix my own issues when your are being tortured. this is how I feel. they think they can lock up up and force you to change things that are very difficult. it's not just that simple. my issues go way beack to abuse so their idea of fixing me is to put me through more abuse and keep their copution. they wronged my mother and now they have wornged me and I am the only one who is supposed to carry all these burdens and be with someone I don't love. I mean haven't they had their way for all these years without it being truly theirs. if your parents don't leave you something then is it yours just because you want it? inherit or not, I know what my mothers will said. I don't know what my fathers siad but I stand by his decisions even if it means I get nothing. what kind of child would I be? it is their wishes not mine. and these people who only know what they want is wrong. I can't pretend to love someone who has acted like an enemy for all these years. who tried to desroy me as others watched. made my life a hell. nor can I feel much for people who have taken away what was left to me and continue to live in denial about what they have done and yet I am tortured. come one now who is th fool. me