Lawyers argue over ‘delaying tactic’ review calls to MacAskill as Dean of Faculty condemns Law Society’s failure of regulation

Richard Keen, Dean of Faculty of Advocates. The Law Society of Scotland has been attacked by the Dean of the Faculty of Advocates, Richard Keen QC, who claims the Law Society has yet again abdicated its responsibility for regulation of the Scots legal profession, specifically in this instance, the Society’s role in regulating solicitor-advocates, who are lawyers specially qualified to represent clients in the higher courts without the need to engage a fully qualified advocate from the Faculty.

Richard Keen, the dean of the faculty said to newspapers : "Lord Gill's opinion … highlighted failures concerned with the operation of the way in which solicitor advocates are regulated. The faculty had hoped for a constructive response from the Law Society. "It did not expect the Law Society to abdicate its responsibility as regulator in the face of the Lord Justice Clerk's criticisms.”

He went on : "It is not appropriate for the Law Society to kick this into the long grass by asking for an independent inquiry or investigation. If the Law Society is to prove itself the regulator it claims to be it should demonstrate that by regulating.”

"What there obviously has been is a failure of regulation in respect of solicitor advocates, and the faculty hopes that this will be dealt with sooner rather than later.”

The issues of regulatory failure which have prompted the row between the Law Society of Scotland & Faculty of Advocates was recently brought into the spotlight by Lord Gill who found significant failures in the work of solicitor-advocates, who were failing their clients best interests, where in one instance, a member of a defence team who represented convicted killer Alexander Woodside’s appeal relating to the conduct of his defence at his trial at the High Court in Glasgow in 1998, absented himself from the trial for a day to go to London as part of a Law Society delectation to lobby on legal aid fees.

Lord Gill, commenting on matters, branded the solicitor’s act in the Woodside appeal, “a dereliction of duty”, and found that among other things, solicitors were failing to advise their clients (contrary to Law Society rules), that they have the right to be represented by an advocate from the Faculty of Advocates, which may have been more in their client's best interests.

Lord President Lord Hamilton supports the Law Society’s call for rights of audience review. However, the Law Society of Scotland, seeking to defuse the situation, has resorted to its tried & trusted approach to such criticism .. by doing nothing itself, and asking for a Government review of the issue, a review with the Lord President, Lord Hamilton, has hurriedly signed up to and which the Law Society itself is seeking to take control of, by way of the various legal 'steering groups' the Scottish Government relies on for such 'studies', steering groups which are themselves made up mostly of members of the legal profession who can be trusted to steer things the way of the Law Society's wishes.

I doubt there will be much change in the way solicitor-advocates are regulated with any study which comes from Kenny MacAskill's Justice Department, simply because it appears the Law Society has a 'free hand' to do as it pleases under MacAskill, who is far too cosy with his 'former' colleagues in the legal profession, to the point his own Ministerial negligence has allowed the newly created 'independent' Scottish Legal Complaints Commission to be co-opted by the legal profession in a most brutal way against consumer interests.

Here follows the Herald newspaper's report on the story, and following that, the Law Society of Scotland's own Press Release .. pleading innocence as ever ...

Law Society attacked over review request

BRIAN DONNELLY March 13 2009

Scotland's legal elite have clashed publicly over plans to review the regulation of solicitor advocates after concerns about the system were raised by the country's second most senior judge.

The Dean of the Faculty of Advocates has called on the Law Society of Scotland to face up to its responsibility for regulating solicitor advocates.

The society this week wrote to the Scottish Government requesting an independent review of the system. The faculty believes the society should carry out its own overhaul.

Solicitor advocates are lawyers qualified to represent clients as an advocate in higher courts in England, Wales and in Scotland, the Supreme Court and High Court.

The Lord Justice Clerk, Lord Gill, expressed concern during a recent murder case about the regulation of the group of solicitors.

He found that some solicitors were failing to advise their clients, contrary to Law Society rules, that they have the right to be represented by an advocate, which may be in their best interests.

He added that some solicitor advocates were doing advocacy work beyond their competence and they had a lack of awareness of their professional duties.

He revealed some of the senior solicitors had accepted instructions from their own law firms without advising clients of the availability of counsel, and were "self-certifying" themselves as the lead solicitor in serious criminal cases.

Lord Justice Clerk said: "From the standpoint of the administration of justice the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is matter for concern.

"The concept of seniority is in my view conducive to the interests of justice. It does not apply in the case of solicitor advocates ... in practice there is no concept of seniority other than for the purpose of charging fees."

The society asked Justice Secretary Kenny MacAskill to report back next year on an independent review of all aspects of the rights of audience in the Supreme Courts.

Richard Keen, QC, the Dean of the Faculty, said the society had abdicated its responsibility for regulation after Lord Gill "highlighted failures".

He said: "The Faculty had hoped for a constructive response from the Law Society of Scotland, which is the regulatory authority for solicitor advocates.

"It is not appropriate for the Law Society to kick this into the long grass by asking for an independent inquiry or investigation. If the Law Society is to prove itself the regulator it claims to be it should demonstrate that by regulating.

"There is no call and none certainly from the Lord Justice Clerk, for an investigation into rights of audience in general.

"What there obviously has been is a failure of regulation in respect of solicitor advocates, and the faculty hopes that this will be dealt with sooner rather than later.

"If the Law Society feels that as regulator it is not able to investigate and deal with that matter, no doubt another way can be found to do this on their behalf - although why the public purse should have to incur expense on something which the Law Society is already paid to do is not immediately obvious."

Lorna Jack, chief executive of the Law Society of Scotland, said: "We believe that after almost 20 years it is time for an independent, comprehensive review of rights of audience in the higher courts."

She added that the society has a "rigorous" regulatory system to ensure the public interest is protected and standards maintained.

… and now the Law Society’s own version of events, choosing to smokescreen the entire episode with a call for a review by the Justice Secretary .. a review which will inevitably be kicked back for the Law Society to handle itself …

LAW SOCIETY COMMENTS ON CALL FOR REVIEW OF RIGHTS OF AUDIENCE IN SCOTLAND’S HIGH COURTS

Lorna Jack, chief executive of the Law Society, said:

“Following on from Lord Justice Clerk, Lord Gill’s call for a review, the Lord President Lord Hamilton had written to Kenny MacAskill, Cabinet Secretary for Justice, to add his support for a review and we are in favour of this. We believe that after almost 20 years it is time for an independent, comprehensive review of rights of audience in the higher courts.

“Qualified solicitor advocates were given rights of audience in the High Courts and Court of Session in 1990, with the first appearing in the higher courts in 1993, giving clients an extended choice of well trained, experienced and regulated legal professionals to represent them.

“The Society is the regulatory body for all solicitors. This includes solicitor advocates. All of our members are expected to adhere to the professional standards set out in law and the Society’s rules. The Society has a rigorous regulatory system in place to ensure that the public interest is protected and high standards are maintained.

“Solicitor advocates must also comply with Supreme Court Rules. These rules were first approved by the Lord President Lord Hope in 1992 and then in 2002 by Lord Roger when they were reissued.

“To date the Society has never had to prosecute a member for professional misconduct arising from them acting as a solicitor advocate.

“Any complaints about solicitor advocates should be made to the Scottish Legal Complaints Commission (SLCC). The SLCC would deal with any service complaints while issues of conduct would be passed by them to the Society.

Lorna Jack added: “We would welcome a wide ranging review and the opportunity for ongoing discussion of the various issues with the government and the Faculty. We are currently in a time of significant change and this is an important issue for the future of the legal profession.”