Wednesday, September 30, 2009

Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Lord GillScotland’s Lord Justice Clerk Lord Gill publishes his two year long Civil Courts Review. FORTY YEARS after McKenzie Friends were first introduced in England & Wales, the long awaited Civil Courts Review, undertaken by the Lord Justice Clerk, Lord Gill, has finally ended the decades long discrimination against Scottish court users, by recommending the introduction of McKenzie Friends to Scotland as well as a whole range of much needed improvements for Scots access to justice, including the introduction of simplified court procedures, more advice on legal rights, increased use of mediation, and finally and end to the infamous exclusion of Class Action litigation in Scotland’s antiquated civil courts system.

Lord Gill recommends McKenzie Friends captionsLord Gill’s Civil Courts Review finally recommends the implementation of McKenzie Friends for Scotland. After a long hard battle fought by petitioners to the Scottish Parliament, law reformers,and consumer organisations throughout the UK who joined in campaigning for the introduction of McKenzie Friends in Scotland, Lord Gill's report finally recommends their implementation, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”

Ian Hanger QC submission to Scottish Parliament McKenzie Friend petition 1247Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill's recommendations on McKenzie Friends appear to be greatly influenced by a Holyrood public Petition Petition 1247, raised by Mr Stewart MacKenzie, which saw fantastic support from consumer organisations such as Which? and Consumer Focus Scotland, who both campaigned to bring McKenzie Friends to Scotland. However, insiders at Holyrood and from the legal profession point to Ian Hanger's invaluable and timely letter to the Scottish Parliament's petitions committee as 'having sealed the deal' on McKenzie Friends coming to Scotland. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend."

McKenzie Friend petitioner, Mr Stewart MacKenzie, when asked for reaction on Lord Gill's recommendations on McKenzie Friends, said : "I am delighted the people of Scotland are to be finally made equal with the people of England & Wales, after forty long years of inequality in the Scottish courts system."

I can also exclusively reveal that Scotland's Court of Session is liable to see a quick test of Lord Gill's McKenzie Friend recommendations later this week. On the basis of Lord Gill's positive approach to the introduction of McKenzie Friends in Scotland, this Friday will see a test of the judiciary's resolve over the McKenzie Friend issue, where a request is to be made to judges to allow a party litigant the use of a McKenzie Friend in a long running civil case.

A legal insider said today : "On the basis of Lord Gill's unequivocal support for the issue of McKenzie Friends in Scotland, the court should now move on the Lord Justice Clerk's recommendations and allow the use of McKenzie Friends."

He continued : "I welcome the news there is to be a test case this week for the use of a McKenzie Friend at the Court of Session. This request, coming on the back of the Civil Courts Review and much support from individuals & consumer organisations for assistance in the court will be an interesting challenge of the court's resolve on the McKenzie Friend issue. I wish the party litigant all the best in his request."

A consumer affairs insider however claimed that while Lord Gill's recommendations on McKenzie Friends were very welcome, there would be greater benefit to all court users if substantive rules and obligations were placed upon the courts by legislative means, to ensure the public had full & proper rights as per the application and use of McKenzie Friends in Scotland's courts.

She said : "There is no getting away from the fact that Scotland has missed out on McKenzie Friends for some forty years. I think that fact speaks for itself in that the courts and legal profession have resisted their use, on grounds of doing lawyers out of profits rather than worrying about the quality or availability of legal representation to those who seek it."

"I think consumers rights, and indeed the law itself would be greatly enhanced if a legislative approach was taken to the McKenzie Friends question, going one step further than the English courts, and making it an unequivocal right for a litigant to be able to request and receive the assistance of a McKenzie Friend, if so desired."

Consumer Focus ScotlandConsumer Focus Scotland welcomed Civil Court Review recommendations. Martyn Evans, Director of Consumer Focus Scotland, commented “This review sets out a bold range of challenging but pragmatic recommendations. It gives a clear and prominent voice to the interests of citizens as users of our civil justice system. The prize set out by Lord Gill is a civil justice system fit for the 21st century. There is bound to be a great deal of debate over his proposals. We hope the interests of individual users of the civil justice system are given due consideration and weight in that debate alongside the interests of judges, lawyers and business.”

Examples of recommendations from Lord Gill’s Civil Courts Review that will increase access to justice include:

* introducing a new more user friendly simplified procedure for cases involving lower monetary value and housing matters, designed with unrepresented court users in mind.
* Promoting increased public legal education about legal rights and responsibilities and where to go for help.
* The extension of in-court advice services throughout Scotland.
* The introduction of ‘McKenzie friends’ to assist unrepresented parties in court.
* Encouraging parties to consider the use of mediation and other forms of alternative dispute resolution.
* The introduction of a procedure for multi-party (class) actions in Scotland.

You can download the report in pdf format, from the Scottish Courts Website at the following links :

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched today Wednesday, 30 September 2009 and is available to download below:

MacAskill tight lippedJustice Secretary Kenny MacAskill has proved resistant to reforming laws such as rights of audience & representation, which benefit the legal profession itself. Certainly, I am very happy to see the long overdue proposals to reform civil law in Scotland, but now the issue of bringing McKenzie Friends to Scotland rests with the Justice Secretary, Kenny MacAskill and the Scottish Government, who have so far, proved thoroughly resistive to bringing reforms into Scots Law to make us equal with our English cousins.

Law Society of ScotlandLaw Society of Scotland & Faculty of Advocates remain resistant to McKenzie Friends. There is also the question of opposition from the Law Society of Scotland and the Faculty of Advocates, who both opposed the McKenzie Friends petition at the Scottish Parliament, mostly because allowing McKenzie Friends into Scottish courts would introduce individuals who will most probably be outwith the influence and control of the legal profession. I reported on the legal profession’s opposition to the introduction of McKenzie Friends in Scotland, in two earlier articles, here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review & here : Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

Such a welcome move of bringing in fresh blood to Scotland’s courts, who are motivated to assist litigants in a professional & capable manner, and who don't have a Law Society leash attached round their necks, will be of considerable help & benefit to all users of Scotland’s courts.

Monday, September 28, 2009

Revelations show Legal Aid paid to ‘crooked lawyers’ with criminal convictions as Law Society fears grow over 'regulatory disclosure'

SLABLegal Aid has been paid to solicitors with criminal records & poor complaints histories. Sources close to the Scottish Legal Complaints Commission have today claimed that lawyers in Scotland who have criminal convictions for everything from driving offences to embezzlement, and even longer client complaints records on everything from fraud to habitual negligence, have, without any checks on their status, received public funding from the Scottish Legal Aid Board to defend accused persons, criminals and engage in copious amounts of expensive civil legal aid work usually resulting in unnecessarily long drawn out court cases.

Law Society of ScotlandThe Law Society of Scotland is not obliged to inform clients or the Scottish Legal Aid Board of solicitors criminal records. At the root of the problem seems to be the Law Society of Scotland’s exemption to Freedom of Information legislation, which I have covered before HERE. However, and quite astonishingly, according to sources at the Scottish Legal Complaints Commission, there is no official requirement on the Law Society of Scotland or even the SLCC itself to inform the publicly funded Scottish Legal Aid Board that solicitors, paralegals and other workers employed in the legal profession who have their fees paid for by legal aid funds, have criminal records or are currently charged with criminal offences or have poor complaints records in their service & conduct towards clients.

A legal insider today claimed the lack of any statutory agreements between the legal profession and the taxpayer funded Scottish Legal Aid Board was no accident. He said : "It has never been in the legal profession's best interests to disclose to anyone the fact there are a growing number of its members and employees who have been convicted of criminal offences. It should therefore be of little surprise to the public that no requirements for disclosure to bodies such as the Legal Aid Board exist, due to the fact the Law Society has continually resisted legislation or agreements which would require it to disclose any information on its members."

He continued : "This issue doesn't just relate to criminal convictions. The number and types of complaints against solicitors and their respective law firms should quite properly be disclosed to the Legal Aid board as it may be the case that a particular solicitor who is currently under investigation for financial irregularities as a result of client complaints, is perversely receiving vast amounts of legal aid funding to continue what he is doing. That just has to be wrong."

A senior solicitor, asked for comment said : "The Law Society seems to feel if such information was obliged to be disclosed to the Legal Aid Board, those affected solicitors and their legal firms would, quite rightly in my view, be excluded from receiving legal aid funding.

He continued : “Client applications for civil legal aid contain a wide variety of questions, to ensure a claim is justified. If the client wilfully conceals information, they may be subject to a criminal prosecution. It therefore seems justifiable to ask solicitors more about themselves before legal aid is handed over enabling them to represent their client. For instance, it may be the client has a good case but a bad solicitor. Perhaps introducing checks on solicitors backgrounds would improve services offered to clients and increase the chances of success in litigation funded by legal aid.”

Insiders at the Scottish Legal Complaints Commission, appalled at the situation, have today revealed there are secret moves currently underway to ‘improve’ information disclosure on 'crooked lawyers' to organisations such as the Scottish Legal Aid Board, which is a start in the right direction. However, one example being referred to in the secret discussions, as a basis for increased disclosure from the Law Society to statutory bodies, being the 'Memorandum of Understanding' between the Law Society and the troubled Financial Services Authority, has produced little results over the many years of its existence.

A financial expert claimed the Memorandum of Understanding which exists between the Financial Services Agency and the Law Society of Scotland has not succeeded in its desired effect. She said : "Compared with the numbers of media reports we see on lawyers engaged in financial frauds and the sheer numbers of complaints made to the Law Society of Scotland by disgruntled clients, the numbers of solicitors brought to the FSA's attention under the Memorandum of Understanding are very few, raising questions about the Law Society’s honesty."

She continued : "To be effective, I would recommend a legislative approach to oblige the Law Society and SLCC to disclose such information directly because MOU's basically don't work and have too many get-out clauses."

FSAThe Financial Services Authority reports only one matter referred from the Law Society of Scotland. A Freedom of Information request made to the Financial Services Agency seems to support the view the Law Society is not maintaining its side of the agreement, as the number of reported cases of complaints containing allegations of financial irregularities involving Scottish solicitors do not match those reported by the Law Society to the FSA in London. The FSA disclosed : "The Law Society of Scotland has not reported any solicitors to the FSA within the last 24 months, but it has informed the FSA of one matter regarded as a material concern within the same period."

The FSA went onto explain : "The Society is classified as a Designated Professional Body (“DPB”) and this enables it to regulate licensed firms for certain financial services business that arises out of legal work. The FSA maintains an oversight role, and much of the MoU sets out the framework of co-operation in relation to this regime. The other principal focus of the MoU relates to those member firms directly authorised by the FSA. As a consequence not all practising solicitors or the law firms they work for fall within the scope of the MoU. For example the FSA would not generally expect to be notified of concerns relating to a solicitor working in a firm that was neither licensed under the Society’s DPB regime nor directly authorised by the FSA."

You can download a copy of the Memorandum of Understanding between the Law Society of Scotland and the Financial Services Agency here : MoU between Financial Services Authority & Law Society of Scotland. Clearly, there are too many escape clauses in this 'Memorandum of Understanding' between the Law Society of Scotland and the Financial Services Authority for the agreement to be of any use in terms of consumer protection. Legislation, as those in the know suggest, is therefore certainly the way to go to ensure a full regulatory disclosure including of course, the criminal records of those who are employed in the legal profession - from paralegals to solicitors themselves.

COPFSScotland’s Crown Office are also left out of the loop on disclosures about ‘crooked lawyers’. Curiously, a similar ‘Memorandum of Understanding’ between the Law Society of Scotland and the Crown Office, over the notification of criminal activity which is reported to them by clients of rogue solicitors, or information discovered by the Society during the course of their own investigations, has also produced little by way of productive disclosure, indicating to many the Law Society is resistant to disclose any negative information on its members.

The Scottish Government’s Justice Department was asked for reaction on the revelations but had not responded by the publication of this article. However, a source close to the Law Society of Scotland said it would be “very angry” if information relating to solicitors criminal records or complaints investigations fell into the public domain but offered no reply when asked why consumers should not be allowed to judge if such information may affect their choice of legal representative.

Nevertheless, readers can help compile a register of solicitors in Scotland who have criminal convictions or poor client complaint records, simply by making a comment on this article, informing the name of the solicitor or law firm concerned, and adding any appropriate information which will then be passed onto consumer campaign groups for verification and inclusion in an appropriate register to be made publicly available to all consumers which may help & better inform their choice of legal representative in Scotland.

Tuesday, September 22, 2009

Scottish Legal Complaints Commission misled media over taxpayer funding as calls grow for accountability over anti-client policies

SLCC squareScottish Legal Complaints Commission were told to hide the fact they receive public funds. Revelations today from interviews with senior legal insiders and documents obtained under Freedom of Information legislation show the Scottish Legal Complaints Commission has been ordered around by the Scottish Government and the Law Society on many of its key decisions to-date affecting its consideration of complaints against ‘crooked lawyers, even to the extent the Commission was ordered to publicly conceal the fact it has so far consumed well over £2 million of taxpayers money.

SLCC Public FundingSLCC told the media it was not publicly funded while actually receiving £2 million from the Scottish Government. While minutes obtained from the Scottish Legal Complaints Commission show they had deliberately misinformed enquiring newspapers the Commission was not publicly funded, a disclosure received from the Scottish Government admitted that at least £1.7 million of taxpayers money had been lavished on the underperforming law complaints quango up to 29 September 2008, insisting that " the budget of up to 2 million at the time was managed by the Scottish Government, there was no need for the SLCC to provide accounting of how this money was spent.". The documents also contain references to questions asked by MSP William Coffey (SNP) in the Scottish Parliament on the SLCC’s performance, questions which rattled the SLCC’s board members.

A breakdown of the costs of the alleged ‘non existent’ public funding revealed that £608,991 was spent on staff & training, a further £245,165 was spent on furniture, £290,523 went on buying computers & information technology, £122,979 was used up on legal costs, a staggering £370,092 of taxpayers money was spent on rent of the SLCC's operational base - the Stamp Office at Waterloo Place, Edinburgh, and £72,977 bought advertising for the SLCC. This coming on top of the salaries of up to £100,000 & staggering expenses claims of up to £350 a day for SLCC Board members & officials.

ScottishGovernmentScottish Government civil servants blocked help for consumers with grievances against Law Society. However, a legal insider has today sensationally revealed the Scottish Legal Complaints Commission was ordered by the Justice Department to conceal the fact it had received public funds to avoid any calls for public accountability over how the money had been spent. Even worse, the insider has also revealed the SLCC's controversial decision not to look at historical cases of complaints against crooked lawyers & the Law Society of Scotland which occurred before 1st October 2008 actually came about after civil servants at the Scottish Government and Law Society officials apparently insisted that people with long standing claims & complaints "should be brushed aside and given no help by the SLCC."

The source said : "The funding subject has provoked a number of enquiries from the media on how much public money the commission received after journalists had quoted online sources claiming around 2.5 million had come in from the taxpayer. Orders were given out not to admit to any public funding, and those in the know were told that such enquiries should be rebuffed by stating the SLCC is funded solely by levies from the legal profession itself."

She went on : "I think the public should also be concerned to hear that decisions such as refusing to look at complaints before 1st October 2008 are linked to the SLCC’s policy of avoiding mention of their public funding, because some felt if the Commission admitted to being publicly funded but had refused to investigate public complaints, there would be calls for accountability. While that may be bad enough, it is also true the proposal not to investigate complaints before October 2008 came from the current Scottish Executive and the Law Society who specifically did not want the Commission to become a gateway to resolving clients cases of long standing grievances against the legal profession."

"I personally found the momentum & discussions on that subject very bitter. It was clear many who took part in the decision to block the investigation of historical complaints had an axe to grind in preventing the resolution of cases which have haunted us for years. I do not believe this kind of decision would have been taken under the previous administration, who created the legislation and the SLCC in good faith to clear up the problems of poor regulation of solicitors in Scotland past & present."

A Scottish Government insider today confirmed the running total of taxpayers money thrown at the SLCC was in reality much higher than officials were willing to publicly admit. He alleged the true figure to be in the order of £2.5 million and continuing to rise, given the massive work that civil servants in the Justice Department have had to put in on hundreds of issues which have cropped up since the SLCC officially began its work on 1st October 2008.

He said : "It is shameful to see the SLCC trying to deny the incredible level of financial support they received from the Government. Taxpayers should be up in arms over the public money wasted on the SLCC, especially since the Commission has now had two years worth of complaints levies paid by the legal profession amounting to about £5 million which should enable repayment to the public purse."

He continued : "If the public had a vote on demanding back their money from some underperforming, credibility lacking lawyer complaints quango I'd say you might get a 99.9% 'Yes' ! £2 million of public funds spent on mishandling complaints against rogue lawyers could be better used elsewhere in Scotland especially since the economy is so bad and public services are facing cuts."

A spokesman for one of Scotland's consumer organisations also waded into the argument over the SLCC's funding by saying : "Until the Scottish Legal Complaints Commission pay back all the money it received from the taxpayer, which it can certainly now afford to do, it is perfectly reasonable to conclude the SLCC is jointly funded by the taxpayer and legal profession."

She went on : "However, it is very disturbing to learn that decisions taken by the commission such as their refusal to look at complaints involving legal issues which took place before 1st October 2008 apparently have a party political dimension to them. I can only conclude the present administration has no real wish to see the legal profession cleaned up in any way whatsoever. Consumers should be on their guard against their lack of rights with their errant solicitors and the rather unhelpful SLCC.”

It is of little surprise to me the Scottish Legal Complaints Commission has, evidently a policy of dishonesty with the media and the public in all things from its funding to what it can and cannot investigate. So far the SLCC has consistently demonstrated it cannot be trusted to independently investigate complaints against the legal profession, and its attitudes towards the public as I have previously reported can only be described as anti-client, and most definitely, hostile.

John SwinneyCabinet Finance Chief John Swinney expected the SLCC would look at historical complaints against the Law Society. At least one voice in the current Scottish Government, the Cabinet Secretary for Finance, John Swinney, has expressed his dismay to constituents over the Scottish Legal Complaints Commission’s refusal to investigate historical cases of complaints against the legal profession, as Mr Swinney had fully expected the SLCC to address many long standing cases which brought about the Commission’s very existence in the first place. These apparent differences in Ministerial expectations do lead to the feeling there are divisions in the Government on how the SLCC should implement its duties towards the public, and why ‘saving lawyers from complaints’ shouldn’t be such an apparent top priority for some in this administration.

This afternoon, a source close to Mr Swinney expressed anger over the denials the Scottish Legal Complaints Commission had made regarding its public funding, which was of course paid out by Mr Swinney in his role as the Scottish Government’s Cabinet Finance Chief.

He said : “Mr Swinney has as you know, written to the SLCC on several occasions taking the view that members of the public are stakeholders in the organisation due in no small part to the huge financial input by the Scottish Government into the SLCC itself. I think it is very deceitful of the SLCC to try to conceal their debt to the public in this regard and I can imagine John will not be impressed with their conduct on this matter.”

“Perhaps as some are already saying it is time for the SLCC to pay the public back for the costs of creating the Commission, which the legal profession brought on itself.”

Giving a taxpayer funded £2 million gift to the Scottish legal profession is bad enough, but then having that gift turned around and used by the Scottish Legal Complaints Commission to dodge & avoid all the duties expected of it .. well, that in itself shows us there is long way yet to protect consumers from Scotland’s increasing ranks of ‘crooked lawyers’ out to ruin their clients for anything they can get.

Tuesday, September 15, 2009

McKenzie Friends for Scotland 'a human rights issue' as petition response accuses Scottish Government of blocking access to justice reforms

Scottish GovernmentScottish Government officials accused of consistently blocking access to justice reforms. The latest responses to the Scottish Parliament petition to bring McKenzie Friends to Scotland's courts, accuse current & successive Scottish Executive administrations of ‘deliberately and wilfully obstructing access to justice reforms in Scotland’ while identical legislative reforms which were implemented in the rest of the UK up to forty years earlier and without problem, before even being considered for action by Scottish Ministers.

So damaging have these forty year long delays been to Scots access to justice, the petitioner and indeed many others are now warning Holyrood's Petitions Committee "against leaving the introduction / issue of a McKenzie Friend to the Justice Department of the Scottish Government", citing several examples of horrific delays to law reforms in Scotland and a remarkable lack of action, giving way to an almost prejudiced approach by Justice Department officials to implementing legislation which has mostly passed without incident or obstruction in the rest of the UK many years ago.

0002McKenzie Friend response condemns political resistance to improving access to justice. In a direct quote from responses received by the Scottish Parliament, it is claimed : "The Justice Department and its predecessors have had a long held resistance to any attempt to create greater access to justice and they cannot be trusted to act in the interests of the Scottish people. In 1995 they ignored a direct instruction by the Secretary of State for Scotland Michael Forsyth, to commence Sections 25-29 of the Law Reform (Misc. Provisions) (Scotland) Act 1990, despite the fact that the [then] Lord President Hope had agreed to the commencement of the legislation."

You can download & read the latest response to the McKenzie Friend petition HERE and view other responses on the Scottish Parliament’s website here : Written Submissions for Petition 1247

michael forsythScottish Secretary Michael Forsyth’s instructions to enable access to justice laws were defied by civil servants. Sections 25-29 of the Law Reform Act 1990, commonly accepted as the first attempt to break open lawyers control over the legal services market, came to nothing due to resistance from both politicians, many of whom were too close to the Law Society, and civil servants, who themselves apparently wanted to leave the Law Society in charge of access to justice in Scotland, even to the point of defying Ministerial orders issued by the then Scottish Secretary Michael Forsyth, to implement the access to justice changes in order to benefit Scots choice in the legal services market.

Swinney & MacAskillCabinet Ministers promised each other reforms were enabled but reality told a different story. Even though Scotland, England & Wales implemented the 1990 Law Reform Act in 1990, it took another 17 years (and having to survive one secret attempt by a serving Lord Advocate to repeal Sections 25-29) before the Scottish Government decided in early 2007 to enact those sections of the law allowing non-lawyers to enter Scotland's legal services market, while the same sections of law were enacted in England & Wales almost instantly in 1990. However, even after letters passed between Justice Secretary Kenny MacAskill and the Cabinet Finance Chief John Swinney during mid 2007 alleging all was well with applications by non-lawyers under Sections 25-29, it took nearly 16 months of dithering, passing the buck and arguments between the Justice Secretary and the current Lord President, Lord Hamilton, before one single application from the Association of Commercial Attorneys under the 1990 terms being passed under being passed under highly restrictive conditions.

A litany of delays to other significant reforms in laws benefiting ordinary Scots have been attributed to the same 'resistance' at the Justice Department who seemingly wish to keep the dangerous Law Society of Scotland in charge of the individual's access to justice. Some examples of delays to legal reforms in Scotland follow :

Small ClaimsSmall Claims limits were delayed for 19 years in Scotland on the orders of the Law Society. The Small Claims limit, kept artificially low in Scotland at a meagre £750 for a staggering 19 years, as a result of intense campaigns from individual legal firms and the Law Society of Scotland, itself while the rest of the UK had a small claims limit of £5000. This huge & long lived discrepancy between Scotland & England effectively forced people to employ law firms across Scotland at huge expense to recover small debts that could otherwise be handled speedily and cheaply in the English Courts.

Sections 25-29Access to justice laws were held back for 17 years on orders from the Law Society & Scotland’s legal establishment . Sections 25-29 of the Law Reform (Misc. Provisions) (Scotland) Act 1990, enabling non lawyers to work in the Scottish legal services market were not implemented by the Scottish Government's Justice Department until 2007, a timescale of 17 years, whereas in England the equivalent 1990 Act was implemented in 1990 and worked very well.

Regulatory reform17 years delay to regulatory reform in Scotland. The first calls for reform of regulation of Scotland's notoriously corrupt legal profession were made in 1990 and yet it took another 17 years before the Legal Profession & Legal Aid (Scotland) Act 2007 came into being, creating the half house and nowhere-near-independent Scottish Legal Complaints Commission, which is now viewed by many as little more than an expensive copy of the Law Society itself. England & Wales however, gained independent regulation of their legal services market in 2007, with the creation of the Solicitors Regulation Authority.

McKenzie Friends40 years delay of bringing McKenzie Friends to Scotland. McKenzie Friends were first used in England & Wales an incredible 40 years ago in 1970, but resistance from politicians, civil servants, and the Scottish legal establishment kept out of reach, the Scots public's highly sought after privilege of having a McKenzie Friend assist those who could not obtain access to justice, while the rest of the UK's population used the McKenzie Friend facility with little or no problems, and no resistance from lawyers south of the border.

Class ActionsClass Actions delayed by 27 years in Scotland after first proposals in 1982 from Scottish Consumer Council. Yet another area of Scots Law dragging its feet to the rest of the UK is that of Class Action or multi party action, which has been the subject of numerous recommendations over the past 27 years, by the Scottish Law Commission, Scottish Consumer Council, and now Petition 1234 at the Scottish Parliament, calling for their introduction to Scots Law. Earlier this year even the Dean of the Faculty of Advocates Richard Keen, supported the need for Class Actions in Scotland, although Mr Keen’s keenness to take on the Banks in multi party actions seems to have waned recently … leaving it to campaigners and members of the public to yet again pick up the trail.

While ‘delay’ has obviously been the main tool employed by Scotland’s legal profession against any changes which may encroach on its business market – that of representing individuals in Scotland’s courts & handling legal issues for clients, another important factor has been introduced into the debate on bringing McKenzie Friends to Scotland – that of the question of Human Rights.

Having a McKenzie Friend is a Human Right in England & Wales but why not in Scotland ? In England & Wales, where McKenzie Friends have been used in the courts for some forty years, it is now widely recognised that the issue of an individual being able to call a McKenzie Friend to assist the presentation of their case in the courts system comes under the Human Rights Act 1998, with suitable advice given by the Lord President of the Family Division stating : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.”

The only opposition so far to allowing McKenzie Friends for Scotland, comes from the Law Society of Scotland and the Faculty of Advocates, who both appear worried their members lust for ever higher profits through ripping off clients will be dented by the introduction of what may end up as a very cheap or even free service for thousands of party litigants in Scotland who either cannot afford or cannot secure the services of a Law Society controlled solicitor to pursue their case.

You can read my earlier reports on the Scottish legal profession’s opposition to the introduction of McKenzie Friends in Scotland here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review & here : Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

A Scottish Government insider today condemned many of his own colleagues for being slow to address the rights of Scots to access justice by their own choice, claiming “The general attitude in the Scottish Government is the Law Society controls anything to do with justice. Ministers and many civil servants are apathetic to calls to reform the system, preferring to simply let the legal profession steam roll along as it has always done. No wonder the public get a raw deal against lawyers in Scotland.”

A statement issued from the Scottish Human Rights Commission confirmed they would be addressing the Scottish Parliament’s Petitions Committee on the question of McKenzie Friends, however Citizens Advice Scotland bizarrely claimed they did not have the resources to make a McKenzie Friends submission to the Parliament, although a CAS spokesman confirmed they support the idea.

All eyes are now on the approaching publication of Lord Gill’s Civil Courts Review, which is rumoured to contain recommendations on the introduction of McKenzie Friends for Scotland. Whether the Justice Secretary & the Scottish Parliament will follow the public interest by acting on Petition 1247, implementing Lord Gill’s recommendations on McKenzie Friends for Scotland, or perhaps instead attempt to maintain the legal profession’s monopoly over courtroom representation is something many will await with interest and expectation.

Thursday, September 10, 2009

Scottish Govt. Finance Chief John Swinney blasts Legal Complaints Commission as liars over secret meetings with Law Society insurers Marsh UK

John SwinneyScottish Finance Secretary John Swinney condemns SLCC's secrecy over meetings with Marsh. Documents obtained under Freedom of Information legislation reveal that John Swinney, the Scottish Government's Finance Chief has become involved in efforts to expose an extraordinary battle by the Scottish Legal Complaints Commission to keep secret the details of meetings between senior members & staff of the Commission and the well known US Insurance giant Marsh, who, along with Royal Sun Alliance, insure all Scottish solicitors, most Advocates, and even have little known links to the Scottish Government itself.

John Swinney 09032009 to SLCC 1Cabinet Secretary Swinney demanded explanations of SLCC's minutes contradictions. Letters written by Cabinet Secretary John Swinney dated March 2009 to the SLCC's Chief Executive Eileen Masterman brand her explanation 'contradictory' to details in the Commission's own minutes : "In your response on the 12th of December to *** subsequent letter on the 2nd of December in which *** had stated 'clearly you are saying that no date has yet been arranged for the Marsh presentation'. You indicated that a meeting took place with RSA (Royal Sun Alliance) in July 2008 but that no meeting had occurred with Marsh."

Mr Swinney then went on to state : "*** has drawn to my attention the fact that the minutes of the Scottish Legal Complaints Commission dated 11th of March 2008 and 7th July 2007 indicated firstly in March 2008 that 'Jane Irvine confirmed she had arranged an introductory session from Marsh' and the minutes in July said that a meeting had taken place with RSA. I have to say that I feel there is a contradiction between the correspondence you have sent to *** dated 1st and 12th of December and the minutes of the SLCC meetings of March and July."

Eileen MastermanSLCC's Chief Executive Eileen Masterman's explanations over meetings with Marsh 'are contradictory' - John Swinney. The SLCC’s Chief Executive, Eileen Masterman, herself a former Law Society of Scotland Committee member, issued the following statement in response to queries over Mr Swinney’s communications : “As you know, the SLCC came into existence on 1 October 2008 and a few weeks later, in early November, I attended a meeting with the SLCC’s Head of Investigations and a representative from Marsh. I considered that it was necessary and entirely appropriate for us, as senior members of the SLCC’s team, to apprise ourselves of the nature and workings of the Master Policy and Guarantee Fund as these come within our area of responsibility. However, the meeting did not relate to the means by which SLCC would ultimately exercise its oversight function. “

John Swinney 03062009 to SLCCSLCC's answers to Cabinet Secretary Swinney were far from clear. The SLCC's responses to Mr Swinney's allegations of contradictions between attempts to keep secret any meetings with the insurers, which fell through after the details emerged in later meetings of the Commission, led to further intervention by the Cabinet Secretary branding the Commission's explanations "far from clear". It has also emerged today the Cabinet Secretary is to make representations and possibly a complaint over the way his communications have been responded to, given the responses have in his words, proved contradictory to actual events.

Although Mr Swinney’s office declined to make further comment at this stage, a source close to the Cabinet Secretary today revealed that Mr Swinney is far from happy with the way the Scottish Legal Complaints Commission has handled its relationship with the public to-date, and has also expressed 'significant dissatisfaction' that the Commission chose not to look into past cases of complaints abuse by the Law Society of Scotland, which themselves played a significant part in Mr Swinney's continued appearances during the 2006 Justice 2 Committee hearings into the Legal Profession & Legal Aid Bill, which ultimately passed into law in 2007 after considerable campaigning from Mr Swinney, in the face of stiff resistance from the Law Society and Scotland’s legal establishment.

The well placed insider said : "Clearly the SLCC didn't want to tell anyone there had been secret meetings with Marsh before they got their Master Policy monitoring job up and running but as time dragged on the details of those meetings had to spill out otherwise it looked like they were doing nothing."

He went on : "John Swinney is far from happy the SLCC has still not decided on how to pursue its role monitoring claims made against solicitors using the Master Policy, after the Commission has had over two years and several millions of pounds of taxpayers money pumped into it, with an end result of nothing achieved so far."

John Swinney’s approach to corruption at the Law Society of Scotland led to the quick demise of the Society’s Chief Executive Douglas Mill :

Law SocietySLCC refused to look at Law Society’s corruption for fear of revealing too much. From a study of the correspondence between the Cabinet Secretary and the Scottish Legal Complaints Commission which you can download HERE, it appears the SLCC is either unwilling or unable to perform an effective Master Policy oversight role, which it was tasked with handling in the legislation which created it in the first place. The ‘nothing doing’ time scale of January 2007 to now is enough on its own to show us this seems to be the case, where the Commission is seemingly more intent on talking itself to death on issues and cases, which, if properly resolved as they should be, would put an end to any doubt the Commission is honest in its endeavours to root out corruption in Scotland’s infamously corrupt legal services market.

Clearly, the results of the SLCC's recent investigation in to the Master Policy itself, which stunningly revealed the actions of the insurers and the Law Society of Scotland against claimants had actually caused suicides should have by now, prompted substantive action on the part of the Commission and the Scottish Government to address the issues raised by the University of Manchester investigation team, but as I reported recently, it appears Commission members and staff are now trying to bury the investigation's findings and discredit testimony given by consumers, out of fear of upsetting the Law Society itself.

You can read my two earlier reports on the investigation here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night' and attempts by Commission members to derail evidence given by claimants & victims of the Master Policy here : Censorship & ‘frequent flyers’ at Scottish Legal Complaints Commission reveal attempt to write off consumers evidence in Master Policy report

SLCCSLCC ‘are dishonest, anti-client’. A spokesman for one of Scotland's consumer organisations today branded the SLCC 'dishonest' in its approach to dealing with the public, claiming the Commission was acting more like a protector of the legal profession than the 'independent' regulator it was supposed to be. He said : "The SLCC will have little public credibility if all they do is try to hide meetings with elements of the legal profession and those financially connected with it who are causing all these problems with claims against crooked lawyers. There should be an inquiry into the SLCC’s poor performance to-date where in reality we are little further on after things began in early 2007."

He continued : "I would suggest the lack of progress and anti-client attitudes of Scottish Legal Complaints Commission have now effectively demonstrated it too needs oversight. Perhaps it is time the role of Scottish Legal Services Ombudsman should now be re-introduced, given powers to oversee the SLCC and the Law Society, and be given strong statutory powers which the SLSO should always have had available to use and intervene when the legal profession fails to deal with complaints and claims against its own members."

We therefore seem to be in the position now, two years on from the SLCC’s first steps as an ‘independent’ ‘new broom’ regulator of Scotland’s legal profession, the SLCC itself needs regulated because it too has fell under the spell of those it was tasked with investigating. A very sorry state of affairs indeed.

Tuesday, September 08, 2009

Consumers & Govt insiders brand Law Society ‘too crooked’ to regulate ‘Tesco Law’ expansion of legal services in Scotland

Law Society of ScotlandLaw Society of Scotland branded too corrupt to regulate new legal services in Scotland. The Law Society of Scotland has been branded "too crooked" to regulate the Scottish legal services market after implementation of the changes proposed by the Scottish Government's “Tesco Law” Legal Services Bill, due to be introduced in a few weeks time to the Scottish Parliament. This view of many, including even insiders at the Scottish Government throws into question some proposals contained in the planned legislation, and rumours of ‘done deals behind closed doors with the Law Society’ over who will end up regulating non-lawyers entering the expanded legal services marketplace.

In my report of last week, the Scottish Government's Legal Services Bill announcement left many consumer groups and even some legal insiders questioning the scale of the changes proposed to the current legal services marketplace in Scotland. While the initial proposals contained little hints of policies to protect consumers from the increasing ranks of 'rogue lawyers' who are now routinely committing large scale & destructive frauds involving millions of pounds of clients funds in Scotland, there was much mention of ways in which law firms can receive external investment, and 'combine with other professionals' to offer legal services in new ways.

This afternoon, a Scottish Government insider who does not share a sympathetic view to continued self regulation of solicitors,, spoke of the need to avoid giving the Law Society of Scotland any more power in the arena of regulating those practicing legal services in any expanded market, branding the Law Society "too crooked to be trusted with regulating lawyers".

He said : "Even though the Law Society are lobbying hard to retain their regulation of legal services and come out on top in the Legal Services Bill proposals, the few sane thinkers in the Scottish Government who have had anything to do with them know these people are simply too crooked to be allowed anywhere near regulating complaints against their own colleagues."

He continued : "The fact is the Justice Department has been swamped by letters from members of the public over the years who cannot get anywhere near a fair hearing when they take their complaints to the Law Society about 'crooked lawyers'. Inevitably we as the Scottish Executive get dragged into their problems after having exhausted all avenues they either write to us directly or ask their local politicians to do so and on each occasion we have to write back to them saying the same thing that there is nothing we can do."

"This has happened thousands of times in the past few years, and if anyone is looking for an example of why the Law Society should not be allowed to regulate solicitors, they need only look at some of the cases brought to our attention, which include everything from fraud up to allegations of criminal activity by solicitors against the public. Any sane person having to read through thousands of such letters would come to the same conclusion that the Law Society, having ignored such quantity of pleas from the public, cannot be trusted as a regulator in any shape or form."

MacAskill tight lippedJustice Secretary Kenny MacAskill : Puppet of the legal profession or legal services consumer protection champion for Scotland ? As an experienced law reform campaigner I know full well the weight of representations made to the Scottish Government by members of the public, MSPs and MPs over the years, even having to go down the same route myself regarding the case of crooked lawyer Andrew Penman. I can therefore attest to the lack of help that successive administrations (including the present) have been to members of the public who have failed to secure justice when trying to pursue complaints & court cases against crooked members of Scotland's legal profession.

The lack of consumer protection measures in the Scottish Government's Legal Services Bill therefore concerns me, and on the basis of what is currently being talked about, I doubt we as the Scottish public will get much of a better deal and choice of legal representation as the proposals currently stand, unless the Bill’s parliamentary stage can incite significant amendments to some of what is currently proposed by the Justice Secretary.

Consumer Focus ScotlandConsumer Focus Scotland support an opened legal services market and consumer protection. Consumer Focus Scotland were asked for their reaction to the Government's announced plans for the Legal Services Bill, and issued the following statement : "We made clear in our response to the Scottish Government consultation ‘Wider Choice and Better Protection: a consultation paper on the regulation of legal services in Scotland’, we support the liberalisation of the legal services market in Scotland, subject to the necessary consumer protections being put in place. We believe that this will result in more consumer-friendly, high quality legal services in Scotland."

Consumer Focus Scotland did criticise the lack of promotion of fully independent regulation of legal services, as has occurred in England & Wales, stating : "While we note the regulatory objectives as proposed do not include two objectives included within the Legal Services Act in England and Wales – that of encouraging an independent, strong, diverse and effective legal profession and increasing public understanding of the citizen?s legal rights and duties – we believe the objectives proposed offer a suitable framework.In particular we welcome the objectives of promoting access to justice and protecting and promoting the interests of consumers. We believe these objectives should play a fundamental role in the future regulation of ABS."

You can read Consumer Focus Scotland's response to the Scottish Government's consultation on legal services reform here : Consumer Focus : Wider Choice & Better Protection (Legal Services Reform). In comparison, you can also download a copy of the Scottish Consumer Council's report on the poor & unchanging state of regulation in Scotland's legal profession here Scottish Consumer Council : Complaints Against Solicitors

A group representing users of legal services in Scotland however questioned Consumer Focus Scotland's approach to the question of regulating an expanded legal services market, citing calls from other national consumer organisations such as Which? for completely independent regulation of those in the legal services market as an example to follow.

A spokesman for the group said : "Just about anyone who has used a solicitor in Scotland will tell you that it is better to have non lawyers regulating lawyers than having lawyers themselves do it. Its not rocket science really. If lawyers were taken out of the regulatory equation then clients would feel a lot safer when having to deal with members of the legal profession or anyone who is allowed to work & operate in the legal services market."

He continued : “The fact is much stronger measures on regulation than are currently proposed will have to be taken if the public are going to be properly protected when their relationship with their solicitor goes wrong and I feel Consumer Focus and other high profile campaign groups must highlight this issue and stick with it.”

Which logoScottish campaigners for legal services reform pin their hopes on Which?, who are to be credited with adding considerable momentum to reform of legal services in Scotland. Today, a spokeswoman for the consumer organisation Which? commented on the Scottish Government's proposals for expanding legal services, saying : "Obviously we are pleased to see this legislation coming in, and hope that the consumer interest is squarely at the heart of it, with more choice and competition emerging as a result, and better access and affordability for consumers."

You can download a copy of the Which? “Super-Complaint” on restrictive practices in Scotland's legal services market here : Restrictions on Business Structures and Direct Access in the Scottish Legal Profession

Certainly as I reported late last week, there needs to be much more done in the Legal Services Bill to serve the public interest, and, as consumer groups demand, ensure that consumer protection and free choice is put first before the interests of a presently poorly regulated legal services industry which has become too used to having its own way at any cost.

It is a positive development that at least some in the Government also share that view. However, much work by way of campaigning and, when the time comes, submissions to Parliament, needs to be done on these proposals to ensure the individual has the unrestricted choice of legal services and access to justice which we as Scots certainly do not have currently.

Friday, September 04, 2009

Scottish Govt's Legal Services Bill 'must do more' to break Law Society's grip on legal marketplace & give public wider choice over access to justice

ScottishGovernmentScottish Government announces Legal Services Bill but will it actually help consumers ? Scotland's closed shop legal services market is about to undergo a significant change from its centuries old format of monopolistic domination on the Scots public's access to justice, as the Scottish Governments "Legal Services Bill", designed to open up competition in the Scottish legal services market and give consumers more choice over who represents their legal interests, arrives at Holyrood later this month.

However, the long awaited legislation, which the Scottish Government claims, will "allow Scotland's legal profession to grow and compete, by removing outdated restrictions on business models while protecting the core values of the profession" seems to avoid a total restructuring and opening up of the legal services marketplace which many consumer organisations and law reformers have been campaigning for many years to achieve. There are more detailed announcements expected on the Legal Services Bill as it is introduced in Parliament, but critics of the proposals announced so far cite there is little mention of actual advantages in the legislation for fee paying consumers of legal services in Scotland and claim the bill itself is more about maintaining the monopolistic structure of Scotland's closed shop legal services market rather than opening it up to true competition.

Proposals announced by the Scottish Government include :

1. Allowing solicitors to secure external investment and business expertise and to combine with other professionals to offer legal services in new ways.

2. Remove restrictions on solicitors entering into business relationships with non-solicitors.

3. Allowing our leading commercial law firms to compete effectively with other UK firms and internationally.

4. Creating a robust regulatory framework in which the Scottish Government will appoint approved regulators who will regulate the new business structures

A spokesman for one of Scotland's consumer organisations said this morning : "The Scottish Government need to get the balance right between expanding competition in the legal services sector and addressing the historical issues of poor regulation of legal services in Scotland.

He continued : "We look forward to the bill's passage in the Scottish Parliament and the chance to add our views to the proposals contained in the bill. Hopefully the public will do likewise and add their experiences by way of submissions to the parliament, adding weight to the need of greater consumer protection in the legal services market."

There is evidence the Scottish Government do seem intent on making at least some changes to the way in which lawyers do business in Scotland, however there still seems to be too much focus on maintaining the present regulatory framework exclusively operated by the Law Society of Scotland which many people who have come into contact with, now regard with some justification as being completely corrupt and therefore ripe for change in this forthcoming piece of legislation.

Ian Smart Law Society PresidentLaw Society President Ian Smart was quick to remind us all the Society stands for as little change as possible and no changes to its role as self regulator of Scottish solicitors. The Law Society of Scotland were quick to jump on the bandwagon to maintain their influence over the Scottish Government's proposals, with Ian Smart, their President issuing the following release : “We will, on behalf of our membership, continue to engage with the Scottish Government and MSPs as the Bill progresses to ensure that those who might choose to provide legal services under an alternative business structure can be properly regulated and that robust consumer protections are put in place."

Ian Smart continued : “The Society is in favour of allowing alternative business structures which will encourage innovation within the legal services market and also present our members with the opportunity to adopt new practices which will allow their businesses to flourish both at home as well as elsewhere in the UK and overseas. However it's vitally important that proper consideration is given to access to justice issues. Ensuring access to legal advice and maintaining high standards among those delivering legal services are paramount."

Law Society of ScotlandLaw Society of Scotland is more of a danger to competition and free public choice of legal representation. There is little doubt from Mr Smart's statement, the Law Society of Scotland wishes to continue as the legal profession's dominant and singular self regulator, which it has been constantly lobbying Government and Holyrood to ensure its position as such remains. However, as the huge levels of very serious complaints against member law firms and solicitors show, the Law Society of Scotland has never been up to the job of regulating the legal profession's interests and protecting the public at the same time and the opportunity should now be taken to break up the Law Society's regulatory role from its representation of the profession at large - if the public are to be given the regulatory safeguards that consumers of many other services already have.

MacAskill tight lippedJustice Secretary MacAskill seen as too close to Scotland’s legal profession to give public better choice over access to justice reforms. A significant problem for consumers of legal services in Scotland and those promoting wider competition and better independent regulation is that Justice Secretary Kenny MacAskill has invariably sided in the past with the Law Society of Scotland who wish to retain control over the public's choice of their legal representatives.

Is Justice Secretary MacAskill impartial enough to give consumers protection from poor legal services ?

I have written earlier reports on the preliminary proposals contained in the Legal Services bill (referred to earlier as the Legal Profession Bill), here : Lawyers monopoly on legal services set to last until 2011 as MacAskill's 'dithering consultation' delays wider access to justice for Scots and here : Legal Profession bill has little potential for change as Justice Secretary indicates no will to reform legal services

While the Justice Secretary might argue that "A strong and independent legal profession is part of the institutional framework of a modern democracy. The legal profession contributes to the Scottish economy with an estimated turnover of over £1 billion per annum." the fact is that both of his claims are at odds with what should be an individual's right to choose their own lawyer, rather than have a lawyer forced on them by a 'strong and independent and self regulated legal profession' - which is what we currently have in Scotland.

Why for instance, does the legal profession's perceived right to require to make huge profits from controlling the public's access to justice, access to the courts and access to legal services come into play against giving the public that right of choice we all enjoy in most other things we pay for ? The answer is of course, it should not ... but as we have seen before, Mr MacAskill (himself a solicitor) appears not to be impartial enough from the legal profession to free the public from being handcuffed to the Law Society and its poor regulation of legal services in Scotland which has in turn led to very poor standards and widespread corruption against clients by 'rogue lawyers'.

Neelie KroesEU Competition Commissioner Neelie Kroes welcomes competition in legal services. A spokesman for the European Union Competition Commissioner Neelie Kroes said today : "In general the Commission is in favour of competition in the area of professional services, including lawyers." The Commission also issued a report on the subject in 2005, which can be viewed here : Professional Services - Scope for more reformFollow-up to the Report on Competition in Professional Services

The 2005 report on competition in the legal services sector concluded that "More urgency by the majority of Member States to bring about systematic pro-competitive reform in this sector would bring about significant economic and consumer benefits. In practical terms, this means Member States taking ‘political ownership’ of this work at national level to drive forward the reform process."

Given the EU's conclusion in this regard, there should be more focus on benefits to the consumer in the Legal Services Bill, rather than simply trying to maintain the status quo and basically, window dress so that some changes benefitting legal firms can take place, and old powerful regulators maintain their long standing but ill deserved positions of power, whereas free public choice over legal representation seemingly remains elusive once again.

The EU's 2005 report did however recognise the problem of powerful regulators maintaining closed shop models, just as the Law Society of Scotland has done for years, concluding that : "The weight of tradition should not be underestimated as affecting the pace of change, and in many countries regulators fail to see how things can be done differently. Moreover, the professions themselves have in general not been actively promoting it. The current picture could also indicate that some countries have relatively weak regulatory oversight of the professions. This could be caused by the economic phenomenon of regulatory capture which is not uncommon especially in areas subject to self-regulation."

Regulatory capture, referred to in the EU report, defines as a term used to refer to situations in which a regulatory agency (such as the Law Society of Scotland) created to act in the public interest instead acts in favour of the commercial or special interests that dominate in the industry or sector it is charged with regulating. Regulatory capture is a form of government failure, as it can act as an encouragement for large firms to produce negative externalities.

There is little doubt that consumers in Scotland have for far too long been subject to the Law Society of Scotland's regulatory capture of access to justice and legal services, which must now be put to bed in the coming Legal Services Bill and the public given their own choice and say over who they wish to use (and pay for) to represent their legal interests.

Wednesday, September 02, 2009

Westminster’s 1996 condemnation of Law Society’s Master Policy ‘avoids mention’ by anti-client Scottish Legal Complaints Commission

House of CommonsThirteen year old motion at Westminster reveals long standing knowledge of corruption at Law Society of Scotland and its ‘Master Policy’ Insurers. An Early Day Motion from the UK’s Westminster Parliament during early 1996 has revealed long standing knowledge by politicians of intense corruption at both the Law Society of Scotland and the insurers who manage & underwrite the Scottish legal profession’s ‘Master Insurance Policy’ arrangements to cover crooked & negligent lawyers against claims by ruined clients.

Amazingly, the details of this motion and testimony connected with the original case, which was raised in 1996 by the now deceased Labour MP Gordon McMaster, have been conveniently left out of discussions and investigations by the Scottish Legal Complaints Commission over their role of ‘monitoring’ the claims process of the Master Policy & Guarantee Funds which clients are forced to go through to try and claim damages against losses inflicted on them by the massing ranks of rogue & crooked lawyers in Scotland.

Gordon McMaster’s Early Day Motion reads : “That this House is astonished to learn of the case of Iain McIntyre of Paisley who has suffered estimated losses of £2.7 million due to a series of incidents of negligence and bad faith at the hands of consecutive firms of solicitors; finds it incredible that what started out as a simple conveyancing error has developed into a 10 year legal nightmare of horrific complexity involving seven court processes; believes that inherent conflicts exist between the Law Society of Scotland's duties to guard the public interest and protect its members' interests which have forced Mr McIntyre to endure the loss of his business, the forced sale of his home, long periods of severe depressive illness and liability for expenses amounting to £173,000”.

The motion goes onto state : “further believes that it is unjustifiable that the Law Society of Scotland holds the master professional indemnity insurance policy which has built into it penalties and bonuses which give solicitors a vested interest in minimising negligence claims at unfair levels; is convinced that the principle of Scots law that everyone is entitled to independent legal representation has been breached by the Secretary of the Law Society of Scotland actively encouraging one firm of solicitors to cease acting for Mr McIntyre; and calls for a judicial inquiry into Mr McIntyre's case and an urgent review of the self-regulatory status of the Law Society of Scotland.”

A legal insider commented on the 1996 Westminster motion condemning the Law Society and its infamous Master Policy, claiming : “No one in Scotland wants to talk about this now because it proves many politicians and those in the legal world have known for decades that the Master Policy is a corrupt arrangement forcibly held in place by the Law Society to protect its members from claims against their negligent services and corruption involving clients funds.”

He continued : “It beggars belief that 13 years after this was made public, the Scottish Legal Complaints Commission are still struggling with discussions on how to develop their reluctant remit to monitor the Master Policy which the London Parliament clearly condemned all those years ago.”

Law SocietyHuge levels of corruption at Law Society of Scotland prompted Westminster condemnation. The McMaster motion at Westminster came several months after a series of media reports in the Scottish newspapers about corruption in the claims process against crooked lawyers in Scotland, which frequently saw the Law Society intervene to kill off the legal representation of any clients who were trying to pursue crooked lawyers through the Scottish Courts, and in an 1995 interview related to the case which resulted in the McMaster motion at Westminster, Scottish Television’s Bernard Ponsonby revealed the scale of client claims against crooked lawyers in Scotland in the early 1990’s, which have rocketed nearly two decades later, stating : “In the four years from 1989 to 1993 the premiums paid into the Master Policy have totalled £24,833,000, in the same period £27,441,000 has been paid out in actions against solicitors, a deficit of over £2,600,000.

Mr Ponsonby reached some pertinent conclusions in the interview such as : “Pursuing justice against negligent solicitors requires a deep pocket and great patience, many potential litigants have neither, they have to live with the results of injustice forever !”. You can download the STV transcript of that interview here : STV's Bernard Ponsonby interview & report on Master Policy

However, the Law Society of Scotland and insurers have now made the claim game against crooked lawyers an almost impossible task for clients, with routine intervention from the Law Society now commonplace, resulting in many negligence claims against crooked lawyers going to the wall, and even suicides of clients whose claims have failed. You can read a previous article about the Master Policy here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Scottish Legal Complaints CommissionScottish Legal Complaints Commission don't want to hear about Master Policy ‘suicides’. Reaction as we have seen at the Scottish Legal Complaints Commission to the ‘suicides’ side of the Master Policy has been minimal, with the SLCC’s board members and senior staff seemingly intent on talking down the whole question of regulating the Master Policy, preferring to indulge in name calling and insults against the Master Policy’s victims, rather than actually engaging their experiences for useful application. After my report last week on David Smith and Eileen Masterman’s bitter accusations against consumers who took part by invitation in the SLCC’s own Master Policy investigation, Jane Irvine, the SLCC’s Chair said no comment could be issued, citing “Mr Smith was not available for the next two and a half weeks”.

A participant in the SLCC’s Master Policy investigation commented : “Perhaps Smith is away doing some frequent flying of his own. I wonder if he and the rest of the SLCC would like to meet the family of a dead client who put both barrels of a shotgun in his mouth and blew his brains out after finding out his lawyers had been stitching his Master Policy claim up all the time they were working on it. Would he call them frequent flyers too ?”

Debating chamberScottish MSPs don’t want to raise motions condemning corruption in the legal profession. Of course, while Westminster seemed well convinced of corruption at the Law Society of Scotland some thirteen years ago, the road to obtaining even an investigation into the Master Policy in Scotland and proper independent regulation of the legal profession has proved distinctly rocky, as most MSPs at Holyrood who are called in by constituents with similar problems against ‘crooked lawyers’, openly refuse to raise such motions in the Scottish Parliament, even though they certainly have the power to do so.

One well known consumer activist today put MSPs reluctance to raise motions against injustice and the legal profession down to “fear of upsetting lawyers and the Law Society”.

He said : “Most Scottish politicians when faced with a choice between helping a constituent against the legal profession itself, or remaining in favour of the legal profession, will take the latter option. It is simply a more profitable arrangement for them. Helping a constituent will produce little by way of return, but remaining in the favour of the legal profession invariably produced high returns for many politicians as we have seen occasionally revealed in newspaper headlines over the past few years.”

Given the apparent lack of understanding by the SLCC’s board members as to the difficulties faced by those clients & members of the public who become involved with the Master Policy, it may do some good for the likes of David “Frequent Flyers” Smith, and Margaret “Chancers” Scanlan to have a read of the 1996 Westminster motion, although as one Commission insider pointed out on Monday, “… anyone with chips on their shoulder within the commission who has to resort to that kind of language against people they are supposed to be there to help, are long past understanding the public’s point of view and experiences regarding those in the legal profession.”

I would tend to agree … so, when do we see some action against the Law Society and their corrupt Master Policy ?

How many more clients lives is the Law Society going to use up to ‘allow crooked lawyers to sleep at night’ and why all the opposition to opening up a review of failed claims where the Law Society intervened and stopped such cases progressing ?