Wednesday, May 28, 2008

Scottish Legal Complaints Commission - protecting the public or protecting the legal profession ?

I must confess I had no idea the 'independent' complaints body I helped create to investigate complaints against lawyers would end up turning regulation of the legal profession into an industry with its appointments & salaries scales.

As I note from Scottish Law Reporter, the Scottish Legal Complaints Commission are seeking to fill the post of "Head of Investigations", which I assume will mirror the role of Philip Yelland, the Law Society of Scotland's "Director of Regulation" who has headed the infamous Client Relations Office for decades.

The post of Head of Investigations has a salary band up to £1400, 00 per week ! so as you can see the legal profession, and very strangely, their allies in the current Scottish Government, are being very very kind to themselves ...

Given the fact that complaints against solicitors in Scotland rose to around eight thousand a year at one stage (with the Law Society 'seasonally adjusting' the figures down to five thousand) ... most clients and solicitors alike don't think Mr Yelland did or does a particularly good job of things ... and of course with the Law Society's outgoing Chief Executive Douglas Mill choosing to personally interfere in many cases of complaint against legal colleagues ... many client complaints were simply binned or prolonged for years with no action at the end of it.

In short, the Law Society of Scotland, laundered complaints against solicitors, as drug dealers launder their profits from sales of their nefarious wares.

Now of course, all that is supposedly to end, with the Scottish Legal Complaints Commission coming along to 'independently' regulate complaints against solicitors, and we supposedly will have a 'new dawn' of honesty & accountability.

Hold on a minute though, that might not happen because many of the same people who worked in the Client Relations Office under the administration of Philip Yelland, are going to or are now working for the Scottish Legal Complaints Commission.

So, did you make a serious complaint against a solicitor in the past few years, where maybe your assets had been embezzled, or you had lost a property or legal case due to the negligence or incompetence of your solicitor, and got nowhere when the Law Society studied that complaint ?

Well ... chances are, the same person who 'handled' your complaint into the dustbin, will now be working for the Scottish Legal Complaints Commission !

What are the chances these same people are going to have a great leap of honesty and do any different from what they have been trained for so long to do all these years ... which is ensuring that complaints against lawyers go nowhere ?

Picture this for a minute - a client of a solicitor who lost a legal action which ultimately cost them their home, business & livelihood, made a complaint to the Law Society in 2003.

The complaint was then investigated, and despite an overwhelming amount of evidence to show the solicitor acted with negligence, and even embezzled around £52,000, into one of his personal bank accounts, the Law Society despite all the evidence, whitewashed the solicitor and let him off the hook, so the client who was ruined, gets nothing, and the solicitor concerned went onto do the same to further clients in 2004, 2006, and 2007.

The staff member at the Law Society of Scotland who dealt with the initial complaint against that solicitor in 2003, was then found to have dealt with the three further complaints against the same solicitor involving the same kinds of actions, including embezzlement against three further clients who were also financially ruined and had their complaints against the same solicitor binned, while the solicitor is allowed to carry on in practice !

That same Law Society staff member then transfers to the new 'independent' Scottish Legal Complaints Commission to carry on the same work they were doing at the Law Society of Scotland's Client Relations Office which has let 'crooked lawyers' off the hook on so many occasions previously.

Does anyone honestly think that such person should be working at the Scottish Legal Complaints Commission or indeed have anything to do with regulation against the legal profession ?

I have reported on previous issues regarding the new Scottish Legal Complaints Commission, and particularly a set of rather sleazy appointments, which are currently being investigated.

You can read those earlier 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

Law Society staff secretly migrating into 'independent' complaints commission will ensure continuing problems of regulating Scottish lawyers

I have to wonder if this new Scottish Legal Complaints Commission will be any different from the Law Society's Client Relations Office of old ... and whether the will exists at the Justice Department to ensure the SLCC performs its duty properly ... given the current Justice Secretary seems to be 'out to lunch' on issues concerning the legal profession ...

Just for good measure, here is the job advertisement from the SLCC .. don't worry, I won't be applying for it myself !. Perhaps another Law Society stooge can be found to fill the position .... although I certainly hope not !

Scottish Government - Head of Investigations


At times, we all have to put our trust in the legal profession. If we're disappointed with the results, confidence in the whole justice system suffers.

That's why with the Legal Profession and Legal Aid (Scotland) Act (2007), The Scottish Legal Complaints Commission (SLCC) has been established. The Commission will replace all functions of the Scottish Legal Services Ombudsman as well as some complaints areas of the Law Society of Scotland. The Commission has been created to receive, investigate and resolve complaints made against legal practitioners and brings together the powerful combination of Commissioners from both the legal profession and the general public. The Commission will deliver an independent resolution of complaints without delay and effectively.

The Commission will be based in Edinburgh, will commence in October 2008 and will employ around 45 staff. Before we start work we need to build our management team. We need people with the vision, determination and drive to lead our people, achieve objectives and play a central role in making a real impact for the people of Scotland.

Head of Investigations (HoI) Salary Band £58,599 to £72,717 pa

This is a crucial role in the Commission and requires to be filled by a candiate of the highest calibre to work within the Senior Management Team.

The principal function of the HoI will be the efficient management of the Investigations Operations Team numbering around 30 employees and ensuring that policy and processes are delivered in line with stated objectives and that caseload key performance indicators are met and exceeded. The HoI will be come involved in specific cases that are atypical because they are unususal or precedential. As HoI you will line manage the team of Investigation Team Managers who in turn manage Complaints Investigators and Support Officers. The role requires that you ensure that systems are robust and respond to process change requirements where necessary and to advise the Chief Executive Officer accordingly. The HoI will also manage our Mediation and Gateway Teams.

You will have experience in complaints handling and be professional qualified. The role demands an individual with excellent organisational skills, a skilful communicator at Board and team level and a sharp analytical mind to exercise sound judgement. The ability to handle complex and sensitive issues and to produce reports and the interpretation of data is essential. You will have a track record of significant achievement.

You will be highly motivated and enjoy the challenge of working in an environment that requires adherence to process, the speedy yet consistent turnaround of legal complaints whilst continuing to develop systems to suit the ongoing needs of the Commission.

The Scottish Legal Complaints Commission is an Equal Opportunities Employer and welcome applications from all sectors of the community.

To download an application form and job description and find out more about the SLCC visit our website at :

Application forms can also be obtained by telephoning Julie Muir on 0131 224 8242.

To apply for this role please send your CV, application form and covering letter to: or apply in writing to: Julie Muir, SLCC Project Team, 2nd Floor West, St Andrews House, Regent Road, Edinburgh, EH1 3DG.

Closing date for applications: Friday 6 June 2008

Sunday, May 25, 2008

Scots face wait on access to justice as lawyers, politicians go slow on legal market reform

The campaign to open the Scots legal services market scored another victory last Thursday at the Law Society of Scotland's Annual General Meeting, where in a shock vote against the policies of Law Society Chief Executive Douglas Mill , around 853 solicitors voted in favour of opening up the legal services market which should ultimately ensure wide access to justice and free choice of legal representatives for all Scots, similar to the Clementi reforms implemented in England & Wales.

I very much support the opening of Scotland's legal services market, in order to widen public choice in legal representation, and have reported on the campaign to open up the legal services market in previous articles, which can be viewed here : Opening the Scots legal services market

There are of course, still a great many obstacles to overcome in implementing what will be a historic change in the Scots legal services market, which for now, still forces anyone who wants access to the courts to go through a solicitor or advocate, who are members of the Law Society of Scotland.

Some of those obstacles include resistance from elements of the Law Society itself, who favour retaining control of their hugely profitable monopoly on access to justice, and also resistance from political allies, who themselves, are formerly practicing lawyers with a calling to protect their colleagues profitability.

While the Law Society will no doubt be eyeing ways to delay the implementation of legislation which will allow the public wider choice of legal representatives, the Scottish Government's own shifting policy on "Tesco Law" has seen some curious shifts over the past year or so, with the current Justice Secretary Kenny MacAskill expressing resistance himself to giving the public a much wider, and more dependable choice of legal representatives.

A previous article I note from Scottish Law Reporter, covering the SNP's wavering policy on "Tesco Law" can be viewed here : Leaked letter from MacAskill to Swinney on legal services 'misleads' Cabinet Secretary Swinney & Parliament on legal services admissions

I think Mr MacAskill's view of things, at least those expressed in Ian Fraser's article in the Herald Scots Government has ‘no appetite’ for legal change do give cause for concern that some in the Government, at least those who are lawyers themselves, don't want to give the public the reforms which the rest of the UK will enjoy in terms of being able to have wider choice of legal services & access to justice

The wholly unnecessary feet dragging by both the SNP Scottish Government and the Law Society are simply aimed at prolonging the public misery of lack of access to justice & legal services until the legal profession feels it can ween itself away from charging clients what they like for poor quality & unsafe legal services with no accountability when things go wrong.

We are over a year on from when the issue was first raised by the early 2007 Which? campaign group as a "supercomplaint" to the Office of Fair Trading, which culminated in the OFT making recommendations to open the legal services market in July 2007

Now, at the end of May 2008, there is still little obvious movement on the part of the Scottish Government to implement public freedom of choice for legal representation .. and many in the Law Society still see many months ahead, even years, before the Scots public can choose their own legal representatives without having to be forced into using a solicitor who is a member of the Law Society of Scotland.

Perhaps I wonder, if Mr MacAskill and the Law Society wish to take a leaf out of the seventeen year wait to implement Sections 25-29 of the Law Reform (Miscellaneous Provisions) Act 1990 Law, which sought to do much the same as the recommendations from the OFT to allow professionals other than solicitors & advocates the rights of audience & representation in Scotland's courts.

However, Sections 25-29 were only brought into law in March 2007 after an intense campaign to expose the Law Society of Scotland's part in holding back that particular legislation, which even though now implemented, has still to see anyone other than a Law Society member allowed into court, all because Mr MacAskill and the Lord President don’t seem to want it ...

Why should we be waiting ? Scots need access to justice now, not have their access to justice controlled by the legal profession itself ...

The Herald reports :

Legal firms vote to back historic ‘Tesco law’ partnership

LUCY ADAMS, Chief Reporter

Supermakets and banks could run or work in partnership with Scottish legal firms in future, following a "historic" vote taken by more than 1000 lawyers last night.

Some 853 solicitors voted in favour of opening up the legal services market yesterday following consultation on what has been dubbed "Tesco Law".

Most of the votes were cast by proxy, but only 152 voted against the move at the Law Society of Scotland's annual meeting.

The decision, which could lead to external ownership of law firms, partnerships between solicitors and non-solicitors, and organisations such as banks and supermarkets providing legal services including conveyancing and will-writing, will require further consultation before being put forward for legislation.

The move follows the lodging of a "super complaint" with the Office of Fair Trading (OFT) 12 months ago by Which?, the consumer watchdog, which said the current regulation of Scottish legal firms was hindering competition in the market, restricting choice and pushing up prices.

Kenny MacAskill was obliged to act after the OFT upheld the calls for a reform of Scotland's legal services market.

Following the Clementi Review in England and Wales, legislation was introduced to open up legal services there. This will be enacted in 2010 and both the AA and the Co-op have already moved to establish legal services companies.

Richard Henderson, president of the Law Society of Scotland, said: "This is a historic decision. The profession has been asked by the Scottish Government to decide on its future direction and I think that we have risen to that challenge today by voting in favour of change.

"There has been a great deal of thought and discussion surrounding alternative business structures. The society's council consulted the profession and it was apparent from the responses that there was an appetite for change within the legal profession."

He added: "This is only the first step in what will be a lengthy journey. The society will continue to work closely with its members from across all sectors of the profession, the government and other stakeholders to ensure that any future reforms will benefit those who require legal services and that access to justice remains central. A crucial part of developing successful and workable new policies will be to ensure that those providing legal services are properly regulated and work to the professional standards expected of them."

The debate around so-called "alternative business structures" has proven deeply divisive among lawyers. There are fears that many small Scots firms could be wiped out by a competitive free-for-all and that permitting external ownership could compromise professional integrity.

The OFT believes a "fit-to-own" test would safeguard the integrity of legal services delivery and claims many small firms and sole practitioners will actually benefit from outside investment.

Mr MacAskill said: "I am pleased that Law Society members have accepted the proposals presented to the AGM and I look forward to working with the profession in the coming months to implement these proposals.

"This is an exciting time and there will be great benefits for those who take advantage of the opportunities these proposals provide."

Friday, May 23, 2008

Lockerbie ruling on disclosure may see Scots stripped of their lawyers in controversial court cases.

Its not often I cover aspects of criminal law but the care of the Lockerbie bombing as it was held under Scots Law has once again reared its head to affect the rest of us five million Scots who also have to depend on the law and live with it.

Yesterday in the Herald newspaper, there was a report of an alarming development in the Lockerbie case, where the Lord Advocate will go to Court to have special "security vetted' advocates represent Abdelbaset Ali Mohmed al Megrahi in the hearing to decide if confidential documents are to be made public which may have a significant bearing on Mr Megrahi's conviction for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in 1988.

From the Herald story :

"The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.

If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case"

Such a move does indeed appear to be a first in Scots Law ... but all things being equal these days, such a power granted to the Crown to remove an accused's legal representation in favour of one it feels 'comfortable with' could so easily be used at will in attempts to stall or simply close down cases which involve serious injustice.

It boils down to this - If the Lord Advocate gains the power to strip a defendant's lawyers in favour of Crown "vetted" or appointed legal agents, any defendant in a case subsequently before the court in a criminal matter could face the possibility to lose their legal team simply on the basis that issues contained in their case are not in the public or Crown's interest to be examined with any regard to a person's right to a fair hearing and once that power is granted, it is there to be used any time, as the Lord Advocate feels applicable.

So ... Crown doesn't like your lawyer, but you might stand a chance of winning a case or perhaps an appeal against a wrongful conviction, showing the Crown case up or proving evidence is withheld ... Crown applies the procedure to you, you lose your own lawyer and one, perhaps less willing to push your case is appointed.

Civil law could also be affected where perhaps you are suing the NHS, a local Council, perhaps a Chief Constable, or another arm of Government for negligence, damages, breach of human rights, etc...

When it looks like your legal team is about to win your case, or reveal embarrassing evidence in Court which proves your position, the other side comes along and applies successfully to remove your own lawyers with a selection of their own due to the nature or effect that embarrassing evidence' in your possession will have on public perception of the law or possible revelations the arm of Government you were taking to court was much less than honest to you and a great many others, like for example, in the contaminated blood products scandal which still has no resolution in sight ...

Oh yes, I've heard the excuse - 'It's only for this case ... don't worry, we won't apply it to anyone else..' but in these times where laws & powers are used for anything and a great many issues completely outwith their original intention, can anyone really be sure the temptation to use this 'great power' of removing a legal team from a controversial case may not be used again ?

I think all told the evidence from society in general suggests that rights to a fair hearing could certainly be in danger if on a whim, your lawyers are taken from you just because the other side fear you will win ...

Such is the strength of this issue, I would have expected a comment from the Justice Secretary given the fact there are another five million of us in Scotland who need to depend on the law other than just the Mr Megrahi, that the issue merits a statement on what exactly is going on and what impact it will have on the rest of us and our use & access to justice in Scotland.

Surely Mr MacAskill's 'hands-off & no comment' approach to such major issues affecting the Scots legal system is not in our national interest ? It is perhaps, the very distance the Justice Secretary is generating by his lack of comment & action which may very well be allowing the Crown Office to do as it pleases in case after case, not simply the issues affecting the Lockerbie trial.

I would also have expected a little bit more comment, dare I say .. protest ... from the likes of the Law Society of Scotland on this matter, who profess to be one of the great defenders of the public interest in Scotland, but who seem to go awfully quiet when it doesn't suit them to say or do something.

To save the day, we might have to rely on the judiciary themselves who have spent most of this year so far arguing for judicial independence.

Would a judge or judges agree it is in the best interests of the law and the rest of us that someone be deprived of their own lawyers if it looks like they are actually going to win their case ? ... Some may say that is a simplistic view of the situation perhaps, but it is accurate and to the point.

Remember, we all have to live with and depend on Scots Law. It cannot be twisted simply to suit the aims of some who do not wish their actions or inactions examined in the full glare of court which may have caused injustice or miscarriage of justice to one or a great many of us ordinary Scots ...

The Herald reports :

Bid to ban Lockerbie lawyers in secrets hearing

LUCY ADAMS, Chief Reporter

Prosecutors will next week attempt to throw an unprecedented veil of secrecy over the appeal of the Lockerbie bomber.

The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.

If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case.

However, the tactic will fuel suspicions that the Crown is going to unusual lengths to preserve the UK's current diplomatic relations with other nations.

The paperwork, which originated in an unknown foreign country, is thought to contain vital information about the electronic timer which detonated the bomb that killed 270 people in the skies over Lockerbie.

It is not known if political pressure has been exercised directly on the Crown, but there have been previous instances in the Megrahi case where Britain's changed attitudes to foreign states since 1988 have played a key role in the legal process.

Foreign Secretary David Miliband has already said the document should remain confidential.

It was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission, which resulted in the case being referred back to the courts for a new appeal last summer. The commission concluded the failure during the original trial to disclose the document could constitute a miscarriage of justice. Although the Crown allowed the commission to see the material, it has refused to disclose it to Megrahi's defence team.

The Crown's latest move is expected to anger further his lawyers, who believe the failure to disclose the document calls into question the ultimate right to a fair appeal.

The request will be made on Tuesday at the Court of Criminal Appeal when the decision on whether to grant the defence access to the document is to be debated.

The Crown is expected to ask for the hearing to be held behind closed doors in the absence of the defence, who would be represented by special advocates. Public Interest Immunity hearings of this kind in criminal cases have previously been held only south of the border, where there is a statutory system in place, and a list of special advocates.

Megrahi's defence team has made it clear that it needs to see the document in order to proceed with the appeal, and has accused the UK Government of "interference" in the appeal.

If the prosecution denies access to the paper, Megrahi's lawyers are expected to argue that the conviction should be quashed because, without it, their client's right to a fair trial would be breached.

One legal expert said: "This is entirely unprecedented in Scotland."

A spokesman for the Crown Office said the court hearing is to be from from May 27 to 29 in Edinburgh. "It is not possible to provide further comment," he said.

Wednesday, May 21, 2008

Scots Law in the dock once more as Law Society AGM fails to deliver on public access to justice

This Friday at the Sheraton Hotel in Edinburgh, the Law Society of Scotland will hold its annual conference .. and as one can expect, there will be little on offer for those inside & outside the legal profession who would rather reform Scots justice than leave it in the dark ages.

Indeed, the focus of the Law Society's 'agenda for self preservation' seems to be that of maintaining a hands on control of not only Scotland's beleaguered legal profession but also on the justice system itself, where elements of the Law Society do indeed seem to be bent on stifling reforming legislation and hindering any prospect of totally independent regulation of an opened legal services market.

Carefully selected speakers will be appearing before the lawyers gathering .. sadly most of them 'yes men' to the Law Society's aims for the future, which does not seem to include much on the interests of the client or public at large.

As I have recently reported, and many have observed themselves, the Law Society seems to be playing a game where they are claiming to support opening the legal services market while qualifying their support with conditions of being the sole regulator of any opened legal services market .. thus continuing the decades old problem of lawyer regulating lawyer, which as we know has failed the public in every way possible.

Notably, one of the chosen speakers is the Justice Secretary himself, claiming that people or businesses will bring their legal business to Scotland. However, with Mr MacAskill's current attitude towards cleaning up the image of the legal profession, and the sleaze scandal of the appointments to the supposedly independent Scottish Legal Complaints Commission ... it would of course be an insane choice for anyone to choose to do their legal business in Scotland under the unsafe & insecure business terms offered by members of the Law Society of Scotland.

Kenny MacAskill - time to address the public interest instead of lawyers interests ?

A new page needs to be turned, and the legal profession has to wake up to the fact that the Law Society itself is not fit to lead it, based on it's past performance as the profession's governing body and 'defender' of the client's interests.

If that new page for everyone is to be turned, regulation of the legal profession must in it's entirety be taken away from lawyers, and the many regulatory sins of the past addressed and cleaned up under the umbrella of truth & reconciliation. Its not such a hard step to take, and it would benefit everyone, from the public to the profession and even the justice system itself.

Without further ado, read on for the Scotsman's version of events for this coming Friday. If you feel like going along .. it might be fun ? and don't forget tomorrow's Law Society AGM at the Hub, Castlehill, on the Royal Mile at 10.30am for the usual round of lawyers congratulating themselves on 'injustice well done' ...

What does the future hold for Scottish law?

Ahead of the Law Society's annual conference, we asked 20 movers and shakers what lies ahead in the next five years

IT IS a time of fundamental change for the legal profession in Scotland. For so long it has been an immovable pillar of tradition in Scottish society, but recent debate has called into question the very way in which firms have operated for many years.

The state of flux for solicitors is not helped by uncertainty over the devolution settlement and simmering discontent over the level of legal aid. Public access to justice and alternative business structures for solicitors' firms are likely to be hot topics when the Law Society convenes its annual conference at the Sheraton Grand Hotel this Friday.

Led by a keynote speech from acclaimed legal author and journalist Richard Susskind, the conference will consider the future of the profession both in Scotland and abroad.

Ahead of the conference, The Scotsman spoke to a wide range of people within the profession. We asked them to give us their thoughts on where Scottish law would be in five years. In this, the first part of a two-part special, we hear from Justice Secretary Kenny MacAskill, as well as from those practising a wide range of legal disciplines across the country.

Some address the alternative business structures proposals, some address technology, others prefer to look at the profession as a whole. All of them provide reasoned and thought-provoking arguments. The debate continues next week.

In addition, Richard Susskind himself speaks to our reporter Jennifer Veitch ahead of his keynote address on Friday.


AS JUSTICE Secretary and a former lawyer, I am committed to working with the legal profession in the spirit of co-operation and partnership. That is why I made it clear I wanted the profession to lead reform rather than presenting them with a blueprint for change. Both the Law Society and the Faculty of Advocates have consulted their members and produced proposals. I will be considering them and will outline the way forward for the profession within the next few months.

This is an exciting time. There will be great benefits for those who take advantage of the opportunity to grow their businesses. But it is also a time of challenges and I recognise that for some, their businesses will be under pressure. We will do what we can to support the availability of high-quality, competitive legal services for all who need it.

The legal profession in Scotland has served us well for centuries and will continue to do so. My vision is for Scotland to have a strong, independent legal profession that is appropriately regulated to ensure the public is protected and quality is maintained. Scottish firms will compete internationally and businesses will choose Scotland as their destination of choice.


WE PROBABLY all agree that technology will change the way we deliver services in the future, but I would contend that an era is starting where technology becomes a defining paradigm of our society.

We are entering an on-demand market where only the highly commoditised or the highly personalised will survive, and that applies to the Law Society and legal services as well.

Everything from legal services to gaining a degree is seen as a 'purchase' that must meet their requirements and not some standardised model. Flexibility and choice have never been more in demand, and that is a trend that will continue to grow.

Two examples? I see a strong solicitor brand remaining, but one where people work in specialisms with qualifications backed by a sectorised practicing certificate. From the Society, expect to see more podcasts and webcasts providing information and opportunities for CPD, and a more personalised service.


IN 2013 lawyers will work quite differently. Even today, information that was previously only available from lawyers is freely available from the web. This is accelerating as search-engine technologies advance. Workflow and automation software will do to the services sector what the assembly line did to manufacturing. We can now do our banking and buy flights, insurance and even vegetables on line. Customers will come to expect the same from legal services.

As a consequence, brand awareness will be more important for professional services organisations. Businesses will promote brands more and individuals less. That said, even the cleverest software only works where there is a process capable of being articulated and replicated. This fits well with services that can be productised but less well for true advice in the sense of exercising judgement. People want advice from people they trust.

Today's professionals who focus upon advising people, will be tomorrow's professionals who succeed.


WITHOUT a willingness to embrace change, the Faculty of Advocates would not have flourished for nearly 500 years. Advocates are acutely aware, however, that a distinguished past provides no guarantee for the future and that the legal profession and the Bar are under intense scrutiny.

An independent referral Bar, with advocates each operating as an independent business provides high-quality legal advice throughout Scotland whether to the clients of a small law firm in Wick or those who consult a large commercial practice in Edinburgh.

The delivery of legal services should be made as simple as possible. An extension of direct access to advocates is inevitable. I have also indicated an intention to review the current prohibition on advocates appearing along with solicitor advocates.

As long as the Faculty is willing to embrace change, I am confident that it will continue to make a major contribution to Scottish life and ensure access to justice for the people of Scotland.


WHAT might the legal education and training regime look like in five years time?

Our current thinking is that each entrant to the profession should have attained a degree-level, or equivalent, qualification. This need not, however, be exclusively in the field of Scots law, provided that certain core legal knowledge and skills have been acquired. This could lead to more innovation in the provision of legal education, which in turn could offer more choice to students. It would be easier, for example, for a student to combine the study of law with a foreign language or with economics or business management.

We support the retention of a postgraduate course in legal practice and a period of work-based learning but we want to see more integration throughout all stages of the education process. We also want to see, at all stages, a focus on the client's perspective.


WE ARE still too reliant on paper but reducing its use isn't the only issue. Better use of IT could be made for litigation support and the way solicitors deal with each other. The Scottish Court Technology Forum agreed in 2007 that PDF files were best for paper-free litigation. Some judges are OK with this. Others worry about "best evidence" where the original has been destroyed.

Europe is pushing for a chipped identity card for all EU lawyers. Lawyers from one jurisdiction could, in theory, log on to courts in another country and file documents remotely. Then there is the PenalNet project, a web platform for secure communication between EU criminal lawyers. Any criminal lawyer on PenalNet will have a directory of criminal lawyers throughout the EU and can establish encrypted communication with them.

The social networking mindset will spill over into the law. We will see the emergence of a legal Wikipedia to which lawyers and clients will contribute. Also the BAILII website will expand as it so rightly ought to: free UK law reports for all!


THE Facebook generation will expect to do business differently and our firms will have to adapt. So what will the practice of conveyancing be like in five years? Put another way, if we started today with a clean slate, would we do things as we do them now? I envisage that transactions will be able to be carried out in a paper-free environment and contracts will be concluded electronically. The transfer of title will also be effected using an intelligent case-management system linked to a fully automated e-registration system. In essence, a full e-conveyancing package will be available accessing a national database of all relevant information about the property being purchased. Pie in the sky? I do not think so. Some of the technology is available now and the rest is under development. The question is, who will provide the service? Does this spell the end for those who practise conveyancing? Not necessarily so. We must evolve with these developments, embrace change and be prepared to do things differently.


IT'S an interesting time for the legal profession in Scotland, particularly as, looking forward five years, it may be that the political backdrop will mean there are more devolved issues that we have to advise on. The legal profession has to achieve a balance in Scotland so that, as a jurisdiction, it is no less attractive a place to practice than England while ensuring that the high standards and integrity that characterise the profession here are not lost.

The term "solicitor" is a kite mark of excellence and our starting point must be to maintain that and make sure the quality for which it stands is not diluted.

While I have no problem per-se with a non-lawyer owning equity in law firms, we must avoid conflicts of interest. There could be some plusses in widening the equity. One could see the benefits of share-incentive schemes benefiting non-lawyers. However, if, for example, a financial institution were to own part of a law firm, could it act independently where that institution has an interest in the provision of its services to the client?

'Europe is pushing a chipped identity card for lawyers…'


THE future of family law in Scotland is bright. There is at last recognition for same-sex couples, although not yet in relation to adoption. However, this looks likely to be rectified by the turn of the year.

Both clients and lawyers are also much more aware of the psychological effects of divorce/separation. Family lawyers have changed their approach, and many are members of the Comprehensive Accredited Lawyer Mediators and the Scottish Collaborative Family Law Group, promoting a sensitive approach to dispute resolution. Lawyers who belong to these organisations have had to rethink the way they approach cases. They understand that to resolve disputes successfully is to aim for an enduring peace, as opposed to the imposed "quick fix" that court tends to offer.

The area of family law is arguably one of the most important, as the fallout has such a massive social impact. Five years from now, alternative dispute resolutions, such as mediation or collaborative law, will be the norm.


FIRST and foremost, I believe that the legal market will actually be a very different place in three years' time.

In my view, it is better to plan for the changes required by 2011, and to see them as a significant stepping stone to where you want your law firm to be in the longer term.

Freeing up the structure of Scottish legal firms will allow far greater flexibility, particularly in terms of succession planning and providing many more opportunities and avenues for solicitors to take their businesses forward.

These opportunities have quite simply not been open to the profession before.

On the one hand, this could lead to many more mergers and acquisitions of legal firms.

However, on the other, the braver and more pioneering organisations in Scotland, this could mean anything from joint ventures to even franchising their brand and business operation.

and if you want a little antidote to that bout of spin from the Law Society, here's a story from the Sunday Mail, showing that sometimes, the less lawyers there are .. the faster things run !

Lawyers' protest backfires as court runs quicker without them

May 18 2008 Exclusive by Campbell Thomas

A WORK-TO-RULE protest by lawyers flopped when their court ran quicker without them.

Briefs refused to take custody cases at Kilmarnock Sheriff Court in a bid to cause chaos on one of the busiest days of the year. They are fighting to keep their £60-an-hour fees paid by the public in Legal Aid cases.

But two solicitors obliged to work whisked through more than 40 cases in two hours less than normal. One lawyer who defied the protest during the local bank holiday weekend accused his colleagues of greed.

Neil McPherson said: "When I look at my colleagues and their top-of-the-range cars, the houses they live in, the holidays and meals they talk about and all the rest of it, then they refuse to do their professional duty, the only common denominator is greed.

"We have been given a position in society and I feel very privileged to be a lawyer. It's an appointment that is well reimbursed financially. But I also have a duty to my clients to do my best for them. "When workers go on strike they give up their pay on a point of principle but all these lawyers did was disrupt the court system and make sure they didn't lose a penny. It's abominable.

"The biggest irony is that the court ran quicker and more smoothly without them. The 40 plus custodies were processed by 4.15pm with only two duty solicitors. "With that number of custodies the court would normally still be running after 6pm."

Christine Cockburn, sheriff clerk at Kilmarnock, added: "There was no disruption and we were able to process the cases very quickly."

The Law Society of Scotland had advised its members not to take action. But its spokesman Oliver Adair admitted they were not employed by the Crown and therefore free to do whatever they saw fit.

He said: "We appreciate there are legitimate concerns about the package. "However the progress we have made is quite extensive and we think there is more prospect of resolution by remaining inclusive rather than seeking confrontation.

"There have been a number of concessions and we are encouraging non-confrontation because the Scottish Government is still listening. "We are pleased that one of our members has followed Law Society of Scotland advice in this regard."

Monday, May 12, 2008

Law Society's proposals on legal services market overhaul spin wide of the mark on public interest

In the latest salvo of publicity from the Law Society of Scotland fired in an attempt to sell the recent Alternative Business Structure policy document as the legal profession's 'acceptance' of an opened legal services market, I was pointed by a solicitor to an article in today's Scotsman, with a comment that 'drivel knows no bounds' - admittedly, his own firm siding on the 'open the legal services market' argument, which I support myself - intended to bring access to justice for all, not some, as the Law Society would have it ...

The Law Society does seem at pains to sell their proposals as an 'acceptance' that the current closed shop of the Scottish legal services market, which forces anyone who wishes to use legal services or gain access to the courts to go through a member of the Law Society of Scotland itself, will be opened up.

In reality however, as I covered in my earlier article on the ABS proposals, the Law Society's ideas for 'alternative business structures' fall very short of any form of acceptance of an opened legal services market. You can read more of my earlier coverage of this issue here : Law Society policy blunders on legal market reforms leave public in the cold, favouring control of regulation & access to justice

Indeed, within the ABS policy paper recently produced by the Law Society, there are several attempts by the current governing body of the Scots legal profession to retain and even extend the Law Society's control over the legal services market, notably recommending the Law Society itself be reinstated as the sole regulator of the Scots legal services market - a recommendation which if Kenny MacAskill accepted, would have dire consequences for the public's access to justice and clients rights.

In today's Scotsman, I found the following portions of their 'report' (actually written by a freelancer studying for an LLB to become a solicitor herself perhaps) to be rather interesting :

From the Scotsman : "In its new policy paper on alternative business structures (ABS), the Law Society has embraced the principle of allowing solicitors to explore new working models.

Aside from the inevitable caveat that appropriate regulation needs to be in place to deal with issues such as independence and conflicts of interest, the society's council says it wants to set out a timetable for "early and energetic progress" towards the framework for ABS."

Well ... it seems that despite the Law Society's attempts at making what is a 'leap into the public interest' it cannot resist qualifying its efforts with conditions such as 'nothing gets done unless we, the Law Society, get to regulate what comes next' - a true sign that in reality, nothing much has changed within the Law Society itself, where the desire to regulate and in effect, control the entire legal services market for itself, is still far more important than clients rights, or even the voting rights of its own solicitors in the profession's policy doctrine.

The Law Society of Scotland, based on its previous & current administration of complaints against lawyers, certainly can have no claim whatsoever to remain as the regulator of any opened up legal services market, for such a development would spell the certain disaster for the future, which has constantly troubled the legal profession in the past and present.

The Law Society cannot be allowed to have any say or role in regulating what should and hopefully will be an opened legal services market, which provides the Scots public with direct and unrestricted access to justice, offering quality and dependable legal services with an unrivalled consumer protection system which the Law Society itself could never offer or provide.

Going back to the Scotsman article once more : "If one thing has been consistently clear during the debate about ABS it is that change was going to happen. The question for the Law Society was whether that change would be driven by them or foisted upon them."

I'd say there is little doubt that some measure of 'foisting' must surely be the case, and soon, because if we travel at the Law Society's pace over the ABS proposals, we will still be discussing them this time next year ...

Finally, if perhaps to inject some macabre humour into the article, the final lines attempt to gloss over the Law Society's policy of resistance to what is now the Legal Profession & Legal Aid (Scotland) Act 2007 ...

Again, from the Scotsman : "Those who recall the society's handling of the complaints handling consultation leading up to the Legal Profession and Legal Aid (Scotland) Act might have expected it to take a similarly conservative approach to ABS.

This time, by embracing both the reality and the opportunity of change, the society has taken a significant step forward."

Yes, many remember the Society's handling of the complaints handling consultation - and the likes of Douglas Mill's threats against the Scottish Parliament & Government if the then LPLA Bill made it into legislation.

The Herald : Douglas Mill threatens the Scots Parliament with legal action if regulation of complaints against lawyers is made independent ...

Holyrood in Solicitor's Sights Octover 30 2006 The Herald

For myself though, I would have to point to the ferocity in which Douglas Mill, the current but resigning Law Society Chief Executive gave controversial testimony to the Scottish Parliament's Justice 2 Committee, which revealed a concerted policy by not only himself but others at the Law Society and their insurance arm Marsh UK to undermine and restrict not only clients rights, but also the general rights of the public over those 'complaints handling procedures' the Law Society cherishes so much and oh .. just by chance, that testimony is of course available on video ...

Law Society Chief Executive Douglas Mill tells a few lies to the Scottish Parliament ... and Cabinet Secretary John Swinney ...

And just for good measure, here is the Herald's excellent report on that same Justice 2 Committee confrontation between Douglas Mill & Cabinet Secretary John Swinney here :

The Herald: Douglas Mill's granny would definitely not swear by her grandson or his Law Society ...

The Herald 5 June 2006 - Would granny swear by the law society

Should such people as Mill and such organisations as the Law Society really be allowed to have any say in regulating their own or a future 'opened market' when they have demonstrated such maligning of the public in the past and where still, there is no will to resolve and heal their terrible sins of the past ?

I think not ... not at least until those who have done the most damage to the Scots legal profession and the client's trust in it, come to the table with an attitude to put things right.

However, the Scottish Government, well .. to be more precise, the current Justice Secretary Kenny MacAskill came out with a statement regarding the Law Society's proposals - one could say .. the following is a predictable choice of words, coming from Mr MacAskill who seems uninterested in change for the public good ? :

“The Justice Secretary is considering the detail of the Law Society’s proposals and will respond in due course. The Scottish Government’s overarching aim is access for all to high quality legal services, within a competitive market which is appropriately regulated.

“At the Law Society’s conference in September last year, the Justice Secretary challenged the legal profession to take a lead in identifying how it can move forward and the Scottish Parliament endorsed this approach in a debate last November. The Law Society has now consulted its members and these proposals have followed on from that consultation.

“In his response to the OFT following the super complaint by Which?, the Justice Secretary said that he did not envisage setting up a new regulatory body in Scotland because this would be disproportionate and inefficient. Oversight of regulation is provided by Scottish Ministers and the Lord President and the Scottish Government believes this framework remains generally appropriate.

A slight abandonment of the Scots public by our Justice Secretary once again, where leadership in this defining issue, in the public interest should be shown but sadly it looks like none is present ? Could it be that Mr MacAskill is falling hook line and sinker for the Law Society's ABS policy line ? frightening stuff indeed ...

The Scotsman reports :

Significant step for Law Society

By Jennifer Veitch

HOW time flies for the legal profession in Scotland. Can it be a year since Which? made their 'super-complaint' to the OFT about our legal services market?
Yet here we are, 12 uncertain months later, and the full implications of the consumer group's move are only just beginning to take effect – but what an effect that might be.

In its new policy paper on alternative business structures (ABS), the Law Society has embraced the principle of allowing solicitors to explore new working models.

Aside from the inevitable caveat that appropriate regulation needs to be in place to deal with issues such as independence and conflicts of interest, the society's council says it wants to set out a timetable for "early and energetic progress" towards the framework for ABS.

Further, it has encouraged the Scottish Government to "amend or repeal" legislation that "impedes or prevents" ABS "as soon as possible." So, barring some sort of grassroots revolt at next week's AGM, it looks like some form of alternative structure will become reality.

The timescale could be relatively swift if the regulation, which is covered in some detail in the policy paper, was all that was required to be addressed. But there is a much bigger problem facing the profession that will be much more difficult to resolve.

As the society's council acknowledges, one of the core themes to emerge from its consultation on ABS earlier this year was that any new structures should not "negatively affect" access to justice. The policy paper's references to the current make-up of the profession in Scotland indicate why it should be of such concern. While large and medium-sized firms have been arguing for a level playing field with the post-Clementi English marketplace, the vast majority of Scottish lawyers do not play in a UK league.

According to the society, there are 1,247 firms in Scotland, of which nearly half are sole practitioners. More than a quarter of the 10,500 solicitors with practising certificates are working in-house and cannot offer direct services to members of the public.

The society's policy paper acknowledges that introducing ABS will affect access to legal services, and it has called on Holyrood to "protect and promote" fair and equal access.

The focus now needs to shift on to how the profession and government can work together, in partnership with the voluntary sector and consumer groups, to ensure that happens in tandem with any regulatory reforms.

While access to justice is a major concern, change to the traditional business model will bring new opportunities, and not just for the big firms. This week's article on the new Community Law Advice Network shows that there are innovative ways of working in the not-for-profit sector.

If one thing has been consistently clear during the debate about ABS it is that change was going to happen. The question for the Law Society was whether that change would be driven by them or foisted upon them.

Those who recall the society's handling of the complaints handling consultation leading up to the Legal Profession and Legal Aid (Scotland) Act might have expected it to take a similarly conservative approach to ABS.

This time, by embracing both the reality and the opportunity of change, the society has taken a significant step forward.

Friday, May 02, 2008

Scots public get raw deal in legal services as paralegals fall under Law Society of Scotland's dishonest regulatory regime

The Law Society has made a big song & dance this week about it's registration scheme for Paralegals, which is the result of 'agreements' reached between the Law Society and the Scottish Paralegals Association, inferring the scheme, which will effectively see the Law Society control and regulate paralegals, will be good for both the client and the legal profession at large.

While some may see the legal profession under the current rule of the Law Society may benefit from grabbing control of paralegals, if anything, the reverse is actually the case, where, as the Law Society has proved particularly through its recent history , it cannot effective manage any part of the profession, and adding the burden of administering, registering & regulating paralegals will do nothing to enhance either the Society's reputation or that of the profession at large.

Ostensibly, what is happening to paralegals, means that when clients have a problem with a paralegal, they will of course, have to take the matter up with the Law Society of Scotland, and as the new Scottish Legal Complaints Commission doesn't seem to be equipped to deal with paralegals, the buck will stop with the troublesome Law Society of Scotland who historically have ensured client complaints go nowhere.

So, in short, Law Society of Scotland control over paralegals is a bad thing for clients .... as we all know from how the Law Society has mismanaged complaints against solicitors for the past thirty years plus.

Want an example of what could happen to a client complaint to the Law Society of Scotland against a paralegal ? Well, there are plenty examples on this blog and in the media of how the Law Society of Scotland treat complaints against lawyers .....

Neil Stevenson - who was appointed by the infamous Douglas Mill to head up 'strategic change' at the Law Society of Scotland, wrote this week in the Scotsman law page on the subject of Law Society control over paralegals :

"There is no doubt that paralegals already provide a valuable service within the legal market, but at the moment anyone can call themselves a paralegal. Introducing a registered status will mean that employers can be sure of the standards met by employees. It will also give paralegals the professional recognition they deserve. And clients will benefit from knowing that the paralegal, who they may have more direct contact with than a solicitor, has been assessed properly.

This development also represents continuing change at the Law Society of Scotland. An innovative regulatory approach has been developed to tackle the issue, and state-of-the-art IT will underpin compliance"

I would remind readers that Douglas Mill, the outgoing Chief Executive of the Law Society of Scotland, is probably the one individual who has done the most damage to the Scots legal profession over the years, with policy failure after policy failure, leaving the profession with the highest levels of complaints, the highest levels of negligence cases, and the poorest level of public trust & respect for solicitors for decades ..... hardly a man who should have any lasting influence on things if the damage he and his kind have done, is to be repaired ?

"An innovative regulatory approach" from the Law Society of Scotland .. I wonder what on earth that could mean in the light of how they have handled regulation for all these years ?

Perhaps the Law Society of Scotland will simply lose the pretence of any honesty whatsoever and bin all complaints against paralegals as they are apparently doing at Drumsheugh Gardens in the run up to October 2008 when the Scottish Legal Complaints Commission takes over regulating service complaints and other issues relating to client complaints against Scottish solicitors.

What we are seeing in these moves by the Law Society over paralegals is simply a move to ensure it will control the legal profession from top to bottom, at every level, ensuring it will have influence & control over everything from the admissions process to control over rights of audience & representation, and of course, retain as much influence and control over access to justice itself.

As things stand, the Law Society will still be able to dictate and restrict the Scots public's choice of legal representatives in a continuing highly restrictive legal services market as indicated by last week's Law Society Alternative Business Structure proposals, and now the public are faced with an even greater danger in the quality & accountability of the present level of legal services on offer with the Law Society's annexing of the paralegals profession.

Unless the SNP Government or other political parties in the Scottish Parliament move forward with proposals to ensure the Scots legal services market is fully opened up to competition and freedom of choice, as recommended by the OFT and many consumer organisations, we will not see any increased quality, accountability or safety of legal services in Scotland.

So, over to less public choice and ever more regulatory failures as clients get a weaker, less safe legal service than ever in Scotland - where regulation of paralegals by the Law Society is definitely not good news for anyone except the Law Society control freaks and those who wish to further control the public's access to justice ..

The Scotsman article written by the Law Society Director of 'Strategic Change" :

Paralegal registration scheme is good news for the profession and for clients

By Neil Stevenson

WHAT will becoming a Law Society of Scotland registered paralegal actually mean?

The status is a badge of quality, indicating that the holder has met certain academic standards, has a certain amount of work experience and can carry out work to a prescribed standard.

We must emphasise that the exact arrangements are still under discussion, but having spoken to most of the concerned parties we have a clear idea of how the final proposal may look.

The Law Society is proud that this is a true partnership project, with the society and the Scottish Paralegal Association working closely to ensure that this new scheme brings benefits to everyone involved.

Paralegals who have attained a formal recognition under the scheme will be eligible to apply for entry to the register. A wide range of qualifications are likely to be considered relevant, from HNC/HNDs provided by Scotland’s colleges to provision from respected commercial providers such Central Law Training and Rewards Training.

We are also delighted to have worked with the Scottish Qualifications Authority (SQA) to redevelop an HNC/HND in legal services, and are now moving to develop professional development awards in a variety of key areas of law. For the first time this will provide a qualifications framework for paralegals.

Paralegals will then need to undertake an assessed year in practice, supervised by a solicitor. Those already with office experience may be able to follow an accelerated route, with the emphasis on ensuring all those becoming registered meet the required standard.

Those achieving registration will be required to complete annual ongoing training and will have to uphold standards laid out in a code of conduct. A complaints process will be put in place, but the emphasis will be on upholding standards through a variety of regulatory approaches.

There is no doubt that paralegals already provide a valuable service within the legal market, but at the moment anyone can call themselves a paralegal. Introducing a registered status will mean that employers can be sure of the standards met by employees. It will also give paralegals the professional recognition they deserve. And clients will benefit from knowing that the paralegal, who they may have more direct contact with than a solicitor, has been assessed properly.

This development also represents continuing change at the Law Society of Scotland. An innovative regulatory approach has been developed to tackle the issue, and state-of-the-art IT will underpin compliance.

This is also a year when the Society’s own governance arrangements are being reviewed and are likely to significantly alter following the move to bring in more experience from outside the profession and streamline our management.

• Neil Stevenson is from the Law Society of Scotland.