Holyrood’s Justice Committee hears of doubts & criticisms from Law Professor & Faculty of Advocates on Legal Services Bill reforms

Holyrood’s Justice Committee continues to hear evidence from legal profession luminaries. REGULATION OF THE LEGAL PROFESSION was further discussed at the Scottish Parliament’s hearings in to the Legal Services Bill where leading figures of the legal profession itself appeared to give evidence before the Justice Committee after the initial round of testimony from the consumer organisation Which? and the Office of Fair Trading, previously reported HERE.

Professor Alan Paterson declared he was against alternative business structures. Professor Paterson told the Justice Committee that in his position on the Council of the Law Society of Scotland, he had voted against alternative business structures along with others resistant to the so-called reforms of solicitors business practices, although the vote was eventually carried through, with large law firms making their views clear they wanted abs to succeed, and the Law Society ultimately had to support it.

Professor Paterson said : “I was on the council of the Law Society when it happened, but I cannot answer your question. Being on the council of the Law Society does not mean that one is privy to all the internal debates that go on at the upper reaches of the society. I suspect that the large law firms made their views very clear and that that had an influence, but I must also report to you—I do not think that this information is private—that the vote in the council on alternative business structures was very clear. Those of us who were in the minority were clearly in the minority and those who were in favour had a strong, solid majority. Those in favour were not individuals from large law firms; they were from high street firms, rural firms and so on. I was surprised by the degree of support that the ABSs attained. It must be the case that many of those individuals see opportunities in them.”

Bill Aitken MSP (Scottish Conservative), Justice Committee Convener. In response to a question from Bill Aitken, the Justice Committee’s Convener on the current ‘status quo’ of law firms & business, Professor Paterson replied that he felt the current rules already allowed some of the proposals contained in the Legal Services Bill. He said : “I am not sure that the status quo has been fully understood or developed. The status quo allows multidisciplinary practices, and there is no problem with multidisciplinary practices with different professionals working in the same firm, provided that one professional grouping—for legal services, it would be the lawyers—are in charge of the firm, are regulated to be in charge of the firm and have the responsibilities of running the firm and complying with the professional standards and the regulatory objectives. To me, that does not pose problems.”

Professor Paterson continued : “There can be disciplinary problems for the non-lawyer professionals in the practice, but that can be dealt with by holding the lawyer partners responsible for their non-lawyer colleagues. That is how it works and it is an effective mechanism. A multidisciplinary practice has all the advantages of a multidisciplinary partnership, except that the non-lawyer members cannot take a share of the profits. However, with a bit of imagination, ways of doing that, which are quite legal, can be found.”

Professor Alan Paterson’s evidence to the Justice Committee can be viewed at the following links from InjusticeTV :

Prof.Paterson Pt 1 Prof.Paterson Pt 2

Prof.Paterson Pt 3 Prof. Paterson Pt 4

Richard Keen, Dean of the Faculty of Advocates appeared before the Justice Committee. The final evidence session of the day saw Richard Keen QC, dean of the Faculty of Advocates, Iain Armstrong QC, vice-dean of the faculty, Tom Marshall, vice-president, civil, of the Society of Solicitor Advocates and Paul Motion, secretary of the society put in an appearance to be questioned by the Justice Committee on their views on the Legal Services Bill

Among the highlights of this particular session, the Dean of the Faculty of Advocates, Richard Keen, appeared to defeat his own arguments with regard to points raised by the SNP’s MSP Mr Stewart Maxwell on the involvement of non-lawyers in the regulation of advocates.

Stewart Maxwell MSP (SNP). Mr Maxwell questioned Mr Keen, saying : “I have no argument with the maintenance of the independence of the Scottish legal system or of those who practise within it. However I think that, in passing, you accepted that to move the regulation of that system to an independent body would not necessarily change that. Do you accept that involving non-lawyers in the regulation of advocates would not alter the independence of the legal profession? If not, what is the problem with non-lawyers being involved in the regulation of advocates ?”

Richard Keen replied, comparing regulation & independence of the courts to that of regulation of advocates and leaving the Committee members in no doubt he was against further regulation of the Faculty.

Mr Keen : “It is a question of how and why as much as anything else. If we want to maintain the independence of the courts—which is fundamental—and of the legal profession, there must be a dividing line between the courts and the executive. That is already recognised by the Judiciary and Courts (Scotland) Act 2008, which provides for the position of the courts and the Lord President.”

“If you are looking to future regulation, you can address various models of regulation. Scotland has maintained the model of regulation by the court over a long period. That model is not unique to Scotland—it is employed in many of the states of the United States and elsewhere in the Commonwealth—but it is effective in ensuring direct regulation.”

“Regulation by the court does not exclude the interest of the public or the consumer because, under section 86 of the bill, the Lord President and the Court of Session in general are bound to proceed in accordance with the regulatory objectives when looking to the regulation of the legal profession. Those objectives are set out in section 1. Professor Paterson asked whether the Lord President would consult and receive the opinions of certain parties, but he is bound to because only by doing so can he adhere to the regulatory objectives. He must know what is in the public interest.”

Stewart Maxwell pressed his point on the involvement on non lawyers in regulation of advocates once again, asking the Dean : “…Why would there be a problem if non-lawyers were to become involved in regulation? Would that, of itself, cause difficulties? I think that you accept the public perception that self-regulation is an issue. I am talking not only about lawyers: members of Parliament have come up against the problem in recent times. Do you accept the analogy ?”

Richard Keen replied, claiming the Faculty of Advocates are not self regulating : “We are not self-regulating. I like to think that we might be, but I know as a matter of fact that we are not. Not everything that I suggest to the Lord President is adhered to or agreed to; I can assure you of that.”

“There is also the issue of proportionality. The 17,000 barristers in England and Wales make for a formidable regulatory issue. In Scotland, we have a bar of 460 people. We could think up a complex model for Scotland such as the bar standards board that is in place in England. However, if we were to impose that on the relatively small bar in Scotland, we would be imposing an enormous overhead in relative terms on the delivery of legal services. At the end of the day, the customer—the consumer—pays the overheads.”

Bill Butler MSP (Labour). The important theme of regulation of advocates continued at the evidence session, with a question from Bill Butler, who asked : “Issues of professional misconduct by an advocate will continue to be referred to the faculty for investigation. What safeguards are required to ensure that the system of self-regulation is patently fair and equitable ?”

Richard Keen replied : “One has to take a step back from the point at which a matter is referred to the faculty. Any such complaint goes first to the Scottish Legal Complaints Commission—all complaints go to the commission, without exception. The commission then determines whether it is dealing with a service complaint or a conduct complaint. If it decides that it is a conduct complaint, it will refer the matter back to the faculty. If the faculty did not then deal with the matter, the commission would come back very quickly and ask what was going on.”

“Inevitably, if a conduct complaint is referred back from the commission, it is dealt with through the faculty's system, on which, as you know, there is lay representation. Thereafter, if a complainer is not satisfied, the case may be appealed or referred back to the commission. However, whether it be a service complaint or a conduct complaint, it always goes back to a lay commission. There was a time when judges might have dealt with complaints informally. However, that is what happened in the past; nowadays, if we receive complaints, they go to the commission.”

Bill Butler later questioned the Dean on when was the last time that a complaint was dealt with informally, which led to a reply from Mr Keen, stating : “When a judge is concerned about the conduct of an advocate, he may write me a letter. If that letter involves a complaint about the conduct of that advocate, I make the complaint to ensure that it goes to the commission.”

Also, the subject of consumers direct access to advocates was raised by Justice Committee member James Kelly MSP, who asked what would be wrong with such a system to be put in place.”

Richard Keen replied, claiming consumers already had direct access to advocates although we all know from anyone who has actually tried to secure direct contact with an advocate, this is an almost impossible task.

Mr Keen said : “There is a system of direct access to advocates, but it is generally limited to professionals who are seeking opinion work. A firm of accountants or surveyors can instruct an advocate directly when it wants an opinion. For example, we are currently dealing with the Chartered Institute of Patent Attorneys. Other bodies of that ilk have rights of direct access to advocates.”

“Why should the general public not have direct access to advocates? That simply could not happen under the existing model. Let us take, for example, a criminal case. If someone has been charged on indictment, they go to a solicitor. If, in due course, they need to be represented in court, that solicitor may instruct counsel. If, however, the person who is charged with an offence goes directly to counsel, counsel is not equipped to make the inquiries and undertake the preparation that is always essential in such a case. Counsel is not in a position to go out and take statements or liaise with police officers—that is not our business model. We simply cannot function in that way; we are a referral bar.”

The Dean ended by claiming the Faculty does not prohibit consumer’s direct access to advocates, although no statistics were offered up to support the position : “However, we do not prohibit direct access. In circumstances in which opinion work or similar work is sought, we will accept direct access. It goes further than that—for example, we have recently considered changes in our regulations to allow direct access for things such as employment tribunal work.”

One onlooker commented the Dean’s claims with regards to direct access were “without foundation and very far from reality”

Coverage of the Faculty of Advocates & Society of Solicitor Advocates evidence to the Justice Committee can be viewed on LawyerTV , here :

FoA & SSA Part 1 FoA & SSA Part 2

FoA & SSA Part 3 FoA & SSA Part 4

The official report of the Justice Committee’s meeting can be read here : Legal Services (Scotland) Bill: Stage 1

More coverage of the evidence on the Legal Services Bill will be reported in the next few days, including the Law Society of Scotland’s appearance before the Justice Committee earlier this week.