Little mention of consumer protection for Scots as Law Society give evidence to Holyrood on Legal Services Bill reforms

Holyrood’s Justice Committee heard Law Society’s sagging performance. The Law Society of Scotland’s appearance in front of Holyrood’s Justice Committee to give evidence on the proposed reforms of the Legal Services Bill, currently being considered by the Scottish Parliament, seems to prove that despite the Law Society’s well deserved reputation for covering up complaints against its members, covering up frauds, embezzlement, theft, destruction (& the falsification of) documents, client files, mishandling of deceased’s wills, and even covering up criminal acts of its own members, officials from the governing body which ‘looks after’ Scotland’s solicitors are still willing to claim they should be left alone to regulate Scotland’s legal services market, sidelining any real improvements in consumer protection from its members.

The usual suspects from the Law Society attended the hearing, President Ian Smart, Chief Executive Lorna Jack (Douglas Mill’s replacement), the notorious Director of Law Reform, Michael Clancy (famed for killing off public petitions, calling in MSPs who are making a fuss about legal matters in Parliament, and someone from the Law Society with the bizarre title of law reform officer, Katie Hay. Missing was the Law Society’s Director of Regulation, Philip Yelland, which was a little strange, as one of the topics which received the most attention was, regulation.

The usual suspects caught on video - Law Society of Scotland’s evidence session on the Legal Services Bill :

Pt 1 Pt 2 Pt 3

Pt 4 Pt 5 Pt 6

Pt 7 Pt 8 Pt 9

The full report of the Law Society of Scotland’s appearance before the Justice Committee, giving evidence on the Legal Services Bill, can be viewed, here : Legal Services (Scotland) Bill: Stage 1 Justice Committee Tuesday 15 December 2009 You can also read my earlier coverage of the Legal Services Bill, here : Legal Services Bill - The story so far

The session was opened with a question from Bill Aitken, the Justice Committee Convener, who asked the acolytes from the Law Society : “Is the Law Society convinced that the bill is necessary and that the establishment of alternative business structures will benefit users of legal services in Scotland as well as practitioners?”

President Ian Smart spoke the most during the session, unfortunately. Responding, Ian Smart, the Law Society’s outgoing President said : “The short answer to your question is yes. The bill largely implements the policy that the Law Society adopted at our annual general meeting in May 2008. We support the proposed legislation for a number of reasons. The first is simply that the legal profession's structure is changing. The conventional view of a solicitor in Scotland is someone who is in a relatively small and modest partnership of three or four solicitors based in a county town, but the profession's current demographic is far from that. Three quarters of all solicitors are now employed in one capacity or another. Some are employed by the state—locally or nationally—and others by the private sector directly, but a good number of them are actually employed. The old partnership model is in steady decline. The Law Society already allows limited liability partnerships and, since 1990, incorporated practices, and we see the bill as the next stage.”

“It is clear that in some areas—more in relation to commercial users of legal services—there is demand for a one-stop shop, where more than one professional service is provided under one roof. Recent research by KPMG south of the border—albeit it involved the Scottish market—indicated that a substantial 75 per cent of commercial users of legal services welcomed that model. We looked into that model and, frankly, had some concerns about the ethical issues, but they have been worked through in our policy and in how the Government has implemented that policy through the bill. We see no reason why the bill cannot be the next stage in modernising the provision of legal services to the public.”

Mr Smart was then questioned on how the vote actually swung in favour of Alternative Business Structures by law firms & individual solicitors although he seemed to omit telling the Justice Committee the Law Society had campaigned hard against the vote within its ranks which, as we all now know was eventually pushed through by the larger legal firms and proxy votes.

Michael Clancy, well known for ‘calling in errant MSPs who rock the boat in the legal world, and killing off the occasional public petition seeking legal reforms. Michael Clancy then entered the debate, after being questioned by Justice Committee member Robert Brown MSP (LibDem) on what areas lawyers & non-lawyers could go into partnership with, and which particular areas of business should be reserved to lawyers only, such as “will writing” – which we have all noted that lawyers have done so well over the years (taking millions of pounds for themselves and getting away with it !)

Mr Clancy said : “They (reserved work for lawyers only) are the preparation of writs that relate to conveyancing, of documents in respect of confirmation of executors and of writs that relate to court process. Those reserved activities can be done only by solicitors and some other professionals; to do them for gain in any other circumstance is an offence. The clear answer to Robert Brown's earlier question is that the reserved areas will be unaffected by the bill and such activities will still have to be done by a solicitor in a licensed provider situation.”

Mr Clancy then went onto insist that any head of legal services in the reformed Legal Services Market must be a solicitor. He said : “It should be remembered that in a licensed provider firm—if such creatures come into being—the head of legal services will have to be a solicitor. One can envisage that the head of legal services will be responsible for ensuring compliance with the law and practice in relation to the preparation of the documents that I mentioned.”

Law Society’s current Chief Executive Lorna Jack – much less fun than Douglas Mill, less prone to animated outbursts too, sadly. The Law Society’s Chief Executive, Lorna Jack, who replaced the fallen Douglas Mill after his ‘secret memo binge against clients of ‘crooked lawyers’ which was exposed by the Scottish Government Cabinet Finance Chief John Swinney during a Justice Committee hearing, managed to get some words in about ‘protecting the legal profession’s independence’ after a question from Committee member James Kelly, initially put to Ian Smart.

Lorna Jack said in reply : “I think that we have already made known our view on this question. We see a need for the Lord President's role to be re-established beyond just simply being a consultee so that it involves an approval mechanism. We therefore think that the bill needs to be amended in that respect—we have made that point.”

Ms Jack continued : “In their evidence, others have talked about the need for a super-regulator, as exists in England and Wales. However, we feel that that is inappropriate for the Scottish market, given its size. Given that the bill provides for ministers to decide after taking independent advice, we do not think that there is a requirement for a super-regulator. If you supplement that with a role for the Lord President in approving regulators, you will ensure that the independence of the legal profession is protected. We would have concerns about there being an additional layer—a quango—and about the cost of that to consumers of legal service in Scotland and, potentially, to taxpayers. The basis of our argument about ensuring the independence of the legal profession is that, alongside ministers, the Lord President takes a role in approving those who get to regulate people who deliver legal service.”

Plenty there about protecting the legal profession and its members … not much, well .. actually nothing about protecting consumers & clients, which seems to be a carry on from the Douglas Mill days.

Michael Clancy had to step in again with further answers on points not emphasised enough by Ms Jack, and also raised the Law Society’s worries over Scottish Government Ministers being able to interfere in the regulator process. Mr Clancy said : “One of the regulatory objectives of the bill is to promote the independence of the legal profession. That applies not only to approved regulators but to the existing regulators under section 86. Furthermore, the Scottish ministers, who have a particular role to play in relation to the approval of regulators, are also captured by the regulatory objectives in section 4, "Ministerial oversight". The trouble is, of course, that ministers are to act in the way that is set out "only so far as practicable".

“That provision needs to be strengthened a bit. Lorna Jack adverted to the role of the Lord President. We certainly think that the Lord President's role should be enhanced from the position in the bill. In the original consultation, "Wider choice and better protection: a consultation paper on the regulation of legal services in Scotland", the Lord President was listed as being someone who had to agree to the authorisation or rescission of authorisation of an approved regulator, yet, in the bill, he turns out to be a "consultee" in that process. It would be appropriate for the Lord President to be reinstated to his position as someone who acts in concert with the Scottish ministers in that respect.”

“Where the bill deals with the specific role of the Scottish ministers regarding elements in the legal profession, there are concerns about how that will work. In my earlier discussion with Mr Brown, I referred to section 39, "Head of Legal Services", in which it says that the head of legal services has to be a solicitor. However, under section 39(9), the Scottish ministers can make regulations about that person's functions. It is inappropriate that the Scottish ministers should be able to tell a solicitor what to do.”

“Furthermore, section 35, which deals with ministers' step-in powers, includes the proposition whereby ministers could create an approved body that would be involved in the licensing of those who deliver legal services. That is also a difficult issue, because as the Scottish ministers could create an approved body, they would then have to approve that body, so there would be a kind of infinity loop of ministerial control. That, too, should be struck from the bill.”

Ian Smart managed another plug for the Law Society’s role in Scottish public life, although it sounds so tired now, we could really all do with a break from Drumsheugh Gardens ruling over the profession and clients best interests, which are never protected, despite the all present’s claims to the contrary.

Mr Smart said, in response to a question from Justice Committee member Stewart Maxwell MSP (SNP) on the subject of the Law Society’s dual role of representing solicitors & clients : “I have been on the council of the Law Society for 11 years, and during that time it has been debated periodically. On each occasion, we came to the conclusion that the current situation was the best available, as did the Parliament during its early days when it looked into the matter in an inquiry into the regulation of the legal profession in Scotland. We can easily point to flaws in the system from the point of view of the consumer's interest or that of the profession, but we have a compromise for a profession of 10,500 in a relatively small country, and there is a degree of clarity.”

“As Cathie Craigie said, people understand what the Law Society is and the role that it holds, and that understanding exists not just within the profession but among the general public. We have an identified role in Scottish public life. The danger in fragmenting that is that it will not be entirely clear who speaks for the legal profession, and if someone has a client complaint or a general complaint about the legal profession, it will not be clear to whom they will make the representations that they want to make.”

In terms of protecting consumer interests, the Law Society’s appearance before the Justice Committee gave absolutely no hope at all for any expected improvement of standards in a reformed Legal Services market if the bill currently under consideration is passed by the Scottish Parliament, and if anyone is in any doubt about the sub standard of legal services in Scotland, and the poor state of regulation, just watch the clips of the absolutely dismal evidence session from the Law Society, and some of the MSPs who seemed more interested in being seen than being seen to do or say something constructive.