Scottish Government set to defy OFT over lawyers self regulation in legal services consultation as MacAskill demands Law Society powers 'be protected'

Much like demanding there should be no inquiry into the worldwide banking collapse, Scotland's Justice Secretary Kenny MacAskill is set to defy the Office of Fair Trading's views of removing all powers of self regulation currently enjoyed by the Law Society of Scotland, in favour of creating a new independent legal services regulator similar in nature to the system now operated in the rest of the UK, where the Law Society of England & Wales is now little more than a 'trade union' for its member solicitors.

In Scotland, the Law Society of Scotland, while certainly being a 'trade union' for its members, also remains the prime regulator for the legal profession, despite recent moves to shift complaints to the troubled, scandal hit Scottish Legal Complaints Commission, which cannot seem to perform its intended function of 'ultimate consumer protection' against some of Scotland's notorious crooked lawyers.

Revelations from the recently announced 'public consultation' into reforming Scotland's legal services market structure, entitled "Wider choice & better protection - a consultation on the regulation of legal services in Scotland" show that while the OFT have made known their view the Law Society of Scotland should be completely stripped of any regulatory functions whatsoever, the Scottish Government are set to defy the wishes of consumers, most consumer organisations, and the OFT itself, by virtually guaranteeing the continuation of the Law Society's dual role as regulator and promoter of solicitors interests.

OFT - remove the Law Society's regulatory powers : “The Office of Fair Trading (OFT), amongst others, has expressed concerns about the regulatory and representative roles of the Society. Its view is that, in the interests of consumer protection, there should be a clear separation of the regulatory function from the responsibilities for representing and promoting the interests of the profession. It is argued that, for a profession that places emphasis on the avoidance of conflicts of interest (of even the appearance of such), undertaking both roles creates such a conflict."

Quite rightly, the OFT has taken the view, after reviewing the considerable evidence of lawyers closing ranks to protect each other against client complaints & claims of poor service, the legal profession is unfit to regulate itself. Improvements in regulation south of the border in England & Wales have already taken place, separating the functions of the solicitors governing body from regulatory responsibilities, a move which many had campaigned for & hoped would be implemented also in Scotland.

Mr MacAskill, however has apparently ruled himself, albeit after a disturbingly intense, albeit private campaign by senior elements of the Scots legal establishment, that the Law Society's powers as regulator of the legal profession, along with it's responsibilities for representing and promoting the interests of the Scots legal profession should remain, allowing the solicitors notoriously crooked, closed shop governing body to prevent clients & consumers getting a fair hearing when it comes to complaints against 'crooked lawyers'.

Kenny MacAskill : We must protect Law Society : "It is the Government’s view that the Law Society should remain as the regulator of individual solicitors, and we are sympathetic to their aspirations to regulate ABS. However we believe that this will require a move towards a clearer separation of the regulatory function. In respect of this aspect of the work of the Society, we also believe that the argument for majority non-lawyer representation on any regulatory committee has considerable merit.”

Mr MacAskill has already made it clear, he feels he and the Scottish Government must protect solicitors from any changes which may affect their 'income' or powers to protect each other from complaints …

A source from within the Justice Department today condemned Kenny MacAskill's blank cheque to the Law Society, claiming "This consultation is nothing but a front for the Law Society who have badgered at ever turn for wording to be changed and fanciful claims to be inserted over their conduct on complaints which everyone knows to be dishonest"

I asked the legal insider whether they felt the consultation paper in its present form was impartial enough to actually do some good and produce some results which may benefit Scots consumers of legal services. They felt however, that intentions were otherwise :

"Parts of the consultation paper look like a Law Society scripture intended for a solicitors conference rather than a genuine attempt to inform the public and seek their views on regulation of solicitors and how they feel legal services in Scotland should be reformed"

"It is widely thought by some of my colleagues there is an organised attempt by the Law Society and other organisations in Scotland which represent solicitors to stage manage the whole consultation process and I & others would not be surprised if some of the returning submissions from the legal profession were the work solely of a few from the Law Society itself"

Another official from within the Scottish Government further lambasted Mr MacAskill's consultation exercise, condemning it little more than a talking shop, and stated, rather strongly ; "Mr MacAskill's condom for the Law Society would not work as Scots will & should demand the same level of protection the rest of the country has from these beasts of the legal system".

To further ascertain who else in the Scottish Government held the view the Law Society should be allowed to remain as regulator of solicitors, I asked a senior Government insider for their opinion. He replied “This is not actually the view of the entire Scottish Government as the wording in the consultation suggests, it is simply the view of Mr MacAskill, the Justice Secretary”.

So, who actually does think the Law Society should be allowed to remain as regulator of solicitors ? Only it seems, lawyers, or ex-lawyers turned politicians are willing to cling to those ideals …

Law Society ran consultation ? One further area attacked by officials who feel their efforts to reform the Scots legal services market are being hampered, are the various 'inserts' into the consultation paper demanded by the Law Society, suggesting all is well with current regulatory models operated by the profession's governing body, particularly those relating to the compensation schemes offered to ruined clients of crooked lawyers, who invariably never receive a penny while their solicitor usually seems to get off 'Scot free'.

Here follows one such example from Mr MacAskill’s public consultation, seemingly the work of the Law Society instead.

Consultation quote on Master Policy : "Currently, consumers enjoy a greater level of protection if the legal services they receive are delivered by a Scottish solicitor working within a traditional firm, as opposed to an unregulated legal services provider working outside the reserved areas. If alternative business structures are to become a reality in Scotland, it is important that the same level of consumer protection applies to alternative business structures as it does to traditional business models."

The above quote, looks like it comes straight from the Law Society of Scotland itself, and I have to say I do remember over the years, previous Law Society Chiefs such as Kenneth Pritchard, and Douglas Mill, using the same phrases to describe the Master Policy Professional Indemnity Insurance of Scots solicitors, which is widely recognised as being the most corrupt insurance arrangement in existence, with the sole aims to protect crooked lawyers from financial damages claims from ruined clients.

You can read an interesting story about the work of the Master Policy to protect crooked lawyers here : Law Society intervention in claims 'commonplace' as ex Chief admits Master Policy protects solicitors against clients

You can read some of my previous reports on the woes of the Master Policy here : The Master Policy - a policy of protection for crooked lawyers

You can download the Scottish Government’s legal services consultation (in Acrobat pdf format) here : Wider choice and better protection: A consultation paper on the regulation of legal services in Scotland

You can read my earlier report on the consultation here : Lawyers monopoly on legal services set to last until 2011 as MacAskill's 'dithering consultation' delays wider access to justice for Scots

If there is to be genuine change & reform of the Scots legal services market, so consumers can get the transparent, impartial regulation they deserve, while solicitors get the 'trade union' they deserve, there must be a change in attitude at the Scottish Government from protecting the professions, to embracing the public interest and putting people first, rather than bowing to the likes of the Law Society of Scotland, who are twisting the public interest, and the public debate away from genuine change, back to the protection of long held monopolies and closed shop regulation once again.