Tuesday, March 30, 2010

Questions raised over Lord President’s 'draconian' conditions for Scottish McKenzie Friends as English courts reveal guidance 'not obligatory'

Lord HamiltonScotland’s Lord President, Lord Hamilton. QUESTIONS are being raised over the ‘draconian’ conditions Scotland’s Chief judge, Lord Hamilton, wishes to impose on the use of McKenzie Friends in Scottish civil courts, after it was revealed today by the English Courts system, their own guidance on the usage of McKenzie Friends comes nowhere near the severity of Lord Hamilton’s requirements as noted in his recently released plans to impose harsh qualifications on anyone wishing to assist an unrepresented party litigant as a McKenzie Friend in a Scottish court.

HMCS Letter 12.03.2010eHMCS (Courts service for England & Wales) reveal McKenzie Friend guidance is informal in England & Wales. The Scottish Courts Service equivalent in England & Wales, Her Majesty’s Courts Service, revealed in a reply to Mr Stewart McKenzie, the McKenzie Friend petitioner that the guidance issued by the President of the Family Division Courts was only informal, and had no actual force of the Rules of Court : “Although the terms of McKenzie friends in England and Wales must be determined by the terms of the ‘President’s Guidance’, it is merely guidance. The Guidance has no force of the Rules of Court. It is neither in the Civil Procedure Rules nor a Practice Direction. It merely sets the principles as defined by case law. Neither the McKenzie Friend nor the Court has to comply with the guidance.”

The response from the English courts service contrasts stunningly with the ‘draconian’ plans of Lord Hamiltion, which I reported in an earlier article, here Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users. While the English courts have found themselves able to work, informally, within their own guidance on the use of McKenzie Friends in England & Wales as laid down in the Family Courts, Lord Hamilton plans to force Scottish McKenzie Friends to sign certificates before the court will even consider allowing them in to assist an unrepresented party litigant.

Lord President to Holyrood - McKenzie Friends a go for June 2010 Page 2Lord Hamilton’s letter to the Scottish Parliament imposes ‘draconian’ requirements on Scottish McKenzie Friends. The focus of the debate in Scotland is now on Lord Hamilton’s plans, taken from his recent letter to the Scottish Parliament which, on the pretext of ‘regulating' McKenzie Friends appearing in a Scottish court, state : “To enable the court to police the behaviour of a lay assistant and, in an extreme case, to exercise a sanction against him or her, the party litigant and the intended lay assistant should complete and sign a certificate to be lodged in process with the motion. The certificate should (i) state the name and address of the intended lay assistant; (ii) give a brief summary of the lay assistant’s relevant experience and state whether he or she is related to the party litigant; (iii) confirm that the lay assistant has no interest in the case and is to receive no remuneration for his or her services in any form; and (iv) state the lay assistant’s understanding of the duty of confidentiality and his or her undertaking not to use any documents recovered in the process for any purpose other than the litigation. There would be an appropriate form containing the undertaking with boxes to be completed.”

A political insider at Holyrood today commented on the sharp difference of practice on McKenzie Friends revealed by the English courts service saying he believed the Lord President would have to water down his proposals to fit in with the rest of the country.

He said : “Given the clear indication from the English courts the guidance which applies to McKenzie Friends is not a binding, nor formal process in terms of the rules of the court in England & Wales, I fail to see how the Lord President can enforce such unfair and draconian requirements on those wishing to serve as McKenzie Friends in a Scottish court. This is clearly an inequitable situation for Scots.”

A solicitor in favour of allowing McKenzie Friends in Scotland commented : “The court is hardly effective at policing members of the legal profession who regularly appear in court, and they are supposedly bound not only by the rules of the court but also their professional conduct & service requirements.

He continued : "I don't see why the court should be invoking a regulatory role of sorts on McKenzie Friends if they cannot even keep a tight reign on solicitors or advocates, especially with regard to recent reports of abuses of the court process by members of the legal profession in both civil & criminal cases.”

A senior official from one of Scotland’s consumer organisations also commented on the HMCS letter to the petitioner, claiming Scots were being left far behind their English counterparts on the McKenzie Friend issue simply because the Scottish legal profession were ‘too used to owning courtroom presence’.

He said : “It is very clear from the response received from HMCS that McKenzie Friends enjoy a more informal, yet effective existence in England & Wales. Given McKenzie Friends have operated in the rest of the country for many years under this system, we would like to see similarly informal, yet effective standards applied in Scotland, with full respect to the same rights & protections which are available to court users & consumers in England & Wales.”

He continued : “ I am sure most of us are under no illusions the legal profession in Scotland simply do not want competition in the court process as they have become too used to owning courtroom presence. However, in the light of the revelations from HMCS, I trust the Scottish Parliament will swiftly undertake discussion on this matter with the Lord President and hopefully persuade him to amend his overly restrictive approach to Scottish McKenzie Friends.”

Which Head of Legal Services - McKenzie Friends for ScotlandUK Consumer organisation Which? also questioned Lord Hamilton’s plans. Lord Hamilton’s plans for McKenzie Friends have also come in for criticism from Which?, recently stating in a letter to the Scottish Parliament : “We do however wish to note several concerns about the proposed implementation of McKenzie Friends and would ask that the Petitions Committee consider these in their deliberations. Namely, we are concerned that Lord Hamilton proposes a McKenzie Friend should be required to have 'relevant experience' and not be related to the litigant. We see absolutely no reason why this information should be requested or relevant in granting permission for a McKenzie Friend. We do not believe, for instance, that a husband or wife should be prevented from acting in this capacity, where the litigant feels this would be helpful. Therefore the proposal that the MF should have no interest in the case is extremely unhelpful.”

You can read more on the letter from Which? in earlier coverage, here : Consumer legal chiefs question Lord Hamilton’s plans for McKenzie Friends as calls grow for fairer deal for Scots court users

The Scottish Parliament during its last hearing on the McKenzie Friend Petition, had resolved to ‘put on hold’ any further discussion on matters until its May hearing, but in the light of the new developments of the HMCS response, consideration of the content and further responses expected to Holyrood in the next few days, along with written representations from MSPs who have also raised questions over Lord Hamilton’s plans, has caused the Petitions Committee to bring forward further debate on the McKenzie Friend petition to its meeting on the 20th April 2010.

To view my earlier coverage of the campaign to bring McKenzie Friends to Scotland, click here : Bringing McKenzie Friends to Scotland's Courts - The story so far

Friday, March 26, 2010

Tesco Law swapped for ‘Penman vote fiddle’ as Law Society’s support for legal services bill leads to solicitors civil war over access to justice

Law Society of ScotlandLaw Society of Scotland accused by its own members of not being democratic. SOLICITORS CLIENTS in Scotland have known for years, the Law Society of Scotland are, to put it mildly, a rather undemocratic organisation when it comes to taking into account the views of up to 5000 clients a year in dealing with regulatory issues & complaints against solicitors, with most complaints receiving what is commonly known as the ‘whitewash treatment’, where solicitors facing even the worst complaints would still remain in a job, no matter how severe the offence, or how severe the financial loss to consumers.

However, only now with the advent of a new legal services model for Scotland, where consumers may actually have the right to choose a non-lawyer to represent their legal interests, do solicitors find out the Law Society’s ‘undemocratic streak’ works both ways, after yesterday’s ‘vote nobbling’ of the Special General Meeting called by the Scottish Law Agents Society, where over 3000 'proxy votes’ cast by solicitors mainly it would seem, against the Law Society’s support of the Legal Services (Scotland) Bill, were put aside, because the Law Society knew it would lose the vote. So, its only taken since 1949 .. some sixty years late, for solicitors to come out and call their own governing body undemocratic, and unwilling to listen to its own membership. Well .. all I can say to that is welcome to the real world.

Clients have felt maligned by the the Law Society’s ‘lack of democracy’ for decades under the society’s self regulation of the legal profession, where clients who had the need to complain of poor service or otherwise from their legal representative consistently had their complaints, views, evidence and pleas for help cast aside by Drumsheugh Gardens time after time after time .. a well worn path by the Law Society, and now the Scottish Legal Complaints Commission, which continues to this day.

Tell me, members of the Scottish legal profession .. where were all your protests when clients suffered a raw deal at the hands of the Law Society ? Is that a pin I hear dropping ?

Seriously, over the years of writing my blog, some solicitors have come to me saying things along the lines of “all this must end”, “self regulation has to go”, “we know we would be better off without the Law Society of Scotland” … but not once have I seen headlines in the newspapers of something along the lines of “Solicitors challenge their own Law Society to give clients greater say over complaints”. If such a move had taken place, believe me, members of the legal profession, you would have had much greater respect from the Scots population many years ago.

Where only now, that certain quarters of the legal profession itself are realising their dominant control of Scotland’s legal services market is threatened, do we see solicitors protesting against their own governing body … not for the best interests of clients (although I’m sure some claim that is exactly what they have in mind) .. moreover the protests are about money, and the loss of it.

Its just not good enough. As solicitors, you all have yourselves to blame for the mess you are in, which ultimately clients will have to pay for.

Decades of confrontation with clients, decades of lies, deceit, decades of arm twisting Members of the Scottish Parliament, and their Members of Parliament at Westminster before them into watering down or killing off proposals to reform regulation of the legal profession, reform of rights of audience, reform of court procedures, reform of civil & criminal law, and now, reform of the public’s access to justice, has given the public a view of the legal profession which will never change .. that of a selfish, manipulative, corrupt, anti-client, anti-consumer monopolistic business who will stop at nothing to protect its own interests.

It could have been so different, if the profession’s membership had listened to its fee paying clients, consumers and well .. common sense, all those years ago, but even now, as solicitors I doubt you are at all interested in the views of the very consumers who pay your way and maintain your existence. When you are, then you can claim you have clients best interests at heart in your accusations against the Law Society … but until then, be honest, its only about money – not the client’s best interests …

However, even in today’s newspapers, the rights of consumers in this debate on legal services, still seem very far away, as the grim reading in today’s papers makes for the chance of passing legislation increasing Scots access to justice, where The Times reports that We got it very wrong, admits Law Society boss as ‘Tesco law’ founders, the Scotsman reporting : Law Society accused of 'affront to democracy' as voting postponed and the Herald reports : Blocking ‘Tesco law’ could cost Scotland £500 million, warns law society president

Ian SmartLaw Society’s Ian Smart – no nobbled vote here, its just we knew we’d lose it so we adjourned it ! In a release from the Law Society, its President Ian Smart continued the society’s line on the Legal Services bill, saying : “The Legal Services (Scotland) Bill proposes major changes. There is no disguising that there are differing opinions within the profession on this. However all sides must be happy that there is now a fuller engagement with these issues and it would be churlish not to acknowledge the contributions of the Scottish Law Agents in that process. It was clear that as the debate proceeded today, the two sides may not be as far apart as perceived prior to the meeting. The decision to adjourn was taken in the hope that we might yet reach agreement on a way forward that is acceptable to the vast majority of our membership.”

Clearly the Law Society knew it would lose the vote, so, simple way of dealing with that is to stop the vote. Yes, a good show for democracy there, but as consumers we have all experienced this same policy where the Law Society deals with thorny issues .. simply kill discussion, kill reforms, kill any chance of public debate.

Scotsman coverage of some of the stories relating to Andrew PenmanLaw Society insider James Ness, famed for nobbling a Committee decision to send Borders solicitor Andrew Penman to the SSDT announced the vote would be cancelled. The opposing view from the Scottish Law Agents Society, revealed, amazingly, that James Ness, whom readers may remember, represented Scotland’s most famous crooked lawyer, Andrew Penman, before the Complaints Committee back in 1994 and got him off the hook from some of the most serious complaints imaginable, announced the vote proposed by the SLAS would not go ahead. Well, there’s a surprise ! So the shadow of crooked Borders solicitor Andrew Penman is still playing a hand in obstructing consumer reforms to legal services, and at the same time cancelling a vote by lawyers against their own Law Society of Scotland.

From the Scottish Law Agents Society website : “Deputy Registrar, James Ness announced that the motion to adjourn the meeting, once seconded, would go straight to a vote without need for a direct negative or opportunity for any members to address the motion, either in support or in opposition. Further, the proxy votes would be excluded from the vote so that the motion would be decided by those personally present. A number of points of order were raised from the floor and, while these were courteously answered, matters proceeded as initially ordered by the Deputy Registrar and the whole meeting suddenly disappeared through a sort of metaphorical trapdoor.”

“It had been fairly clear from the outset that, with the Law Society Council in attendance, the number of persons present who opposed the motion substantially outnumbered those who supported it, in the proportion of about 2:1, just as it was also obvious from the the proxy records which had been duly prepared and circulated by the organisers, that the proxies in favour of the motion outnumbered those against, in the proportion of almost 3:1. It was no surprise, therefore, when the option was certain defeat if the issue went to a vote, that those who opposed the motion duly voted for the adjournment of the meeting. This led to some further points of order and indeed to some outspoken adverse criticisms of the process which were finally brought to a conclusion when SLAS President Scanlan delivered a polite acknowledgement and acceptance of the technical correctness of the outcome.”

You can read more about how James Ness aided Mr Penman, blocking his prosecution before the Scottish Solicitors Discipline Tribunal, here : How Law Society's 'cancelled' prosecution of Borders solicitor Andrew Penman ignited moves to reform regulation of Scotland’s crooked lawyers

Scottish GovernmentScottish Government – ever so eager to concede to lawyers demands over consumer rights. Next week, we can expect more arm twisting from the legal profession on the Scottish Government & Scottish Parliament, inevitably bringing further concessions on the Legal Services Bill, perhaps watering down completely any chance that Scots will gain the right to choose their own legal representatives from an expanded legal services market, rather than be forced to live under the current regime where the legal profession itself determines who among us has the right to pay through the nose for access to justice …

Is this fair to consumers ? It certainly is not …. but as we see from the vested interests at play here, consumers have little or no voice in this battle over legal services at all, as the legal profession have already secured their political allies, even in the form of the Justice Committee Convener himself, Bill Aitken who, by the sounds of his praise for Douglas Mill and solicitors in general, is apparently dead against any reforms to giving people control over their own legal affairs … perhaps, then, as someone pointed out earlier to me today, the Office of Fair Trading will have to step in and force a change on behalf of Scots consumers, to ensure at least someone, is protecting our interests in this debate on legal services …

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far

Thursday, March 25, 2010

Law Society SGM no-vote washout : Legal Services should be treated like any other business as consumers demand wider access to justice

Law Society of ScotlandLaw Society of Scotland’s meeting washed out with no vote. It will come as little surprise to most that today’s Special General Meeting of the Law Society of Scotland, called by the Scottish Law Agents Society to vote on the Law Society’s own ‘alleged’ support for the Legal Services (Scotland) Bill, turned out to be less of a confrontation, rather more the expected fudge predicted by many, as well as a complete washout in terms of furthering consumer’s wider choice & access to legal services in Scotland.

Rather than the imminent break up of the Law Society, hoped for by some in the legal profession (and many outside it), the adjourned SGM at Murrayfield ended up agreeing to seek more talks on ‘building a consensus’ between those opposed to & those in favour of the Legal Services Bill’s proposals of alternative business structures, where law firms will be allowed via the new legislation, to bring in outside capital investment, and possibly end up being owned by non-lawyers (obviously a horrifying prospect to lawyers !).

Ian SmartLaw Society President Ian Smart - ‘not possible to reach agreement’. It was reported that discussions took place during an extended break and when the meeting resumed, Society President Ian Smart announced that although it was not possible to reach agreement on the spot, both sides were willing to keep talking to see if an agreed position could be found and the meeting was adjourned, amid protests the adjournment would remove the voices of around 3,000 solicitors who had sent in proxy forms to enable them to vote on the original SLAS motion, which called for the Law Society to change its stance over supporting alternative business structures (abs) in the Legal Services Bill – a stance the SLAS believe threatens independence of the legal profession.

The feeling remains however, in all these headlines on the battles between the Law Society and various factions of the legal profession, consumers are being left as spectators of what really amounts to a lot of red herrings, lots of smoke & mirrors, diversions from the real arguments, the real fears, the real worries of solicitors, that once legal services are available in Tesco, Morrisons, Asda, or even, Lidl, law firms might find their clients are off to the supermarket for a quick shop along with a quick house purchase, or quick, cheap, advice session on how to handle a legal issue, instead of engaging a solicitor and going through endless appointments, endless letters, endless court appearances, endless fee demands, endless complaints, and well, no end in sight to the issue which brought them into their solicitor’s office in the first place …

Cutting costs, giving consumers wider choice & rights to access justice & legal services is obviously a good thing for consumers. If solicitors are keen to compete with others offering legal services, then reducing fees, vastly increasing success rates & vastly decreasing the time it takes to conduct clients cases, or litigation, might help attract customers back to law firms. Competition is good .. and it might even raise standards in the profession, which the Law Society seem not to be able to achieve on its own.

It should come as no surprise however, that desperate times provoke desperate arguments from the legal profession (or at least its governing body) to maintain a grip over control of access to legal services in Scotland, with recently the Law Society’s President, Ian Smart arguing that legal services, and access to them, should be treated as much more than a business, as I reported last week : “We have also maintained that consumers must be protected and that access to justice is a priority – legal services is not and cannot be seen as a purely commercial activity.”

On closer inspection, Mr Smith’s argument holds little support outside the Law Society’s sphere of influence.

“Consumers must be protected”. Speaking from the consumer’s point of view … Yes, consumers do need to be protected, from you & your colleagues, Mr Smart. However, only a fully independent regulator of legal services in Scotland can protect consumers from legal services, because the Law Society of Scotland and now the Law Society ‘ infected’ Scottish Legal Complaints Commission are just not up to the job.

“Access to justice is a priority”. No its not. It should be, but its not, not anyway while the current legal services model exists its not. Access to justice under the current system, where solicitors & law firms dominate the legal services market is only granted to clients or consumers if a solicitor thinks they have a chance of making money out of their case, not just because someone comes through the door of a solicitor’s office and claims their rights have been violated, or they need to take legal action to resolve a difficulty, injury, issue of negligence, or require to be helped in some other way.

Access to justice in all of those cases, and indeed any imaginable instance, is only a priority if the solicitor thinks so, and justification for taking the client’s issue further will inevitably be judged on a commercial basis. No chance of making money out of you ? Then the solicitor cannot or will not undertake the work. Not much of a priority of access to justice there …

“Legal Services is not and cannot be seen as a purely commercial activity”. Just why is that ? Do law firms offer legal services simply out of goodwill and without any regard to commercial factors and with no motive other than to serve the greater community at large, represent the interests of justice and fight vigorously for the rights of individuals ? Obviously not. Going to a lawyer and accessing legal services is (or at least should be) as commercial an activity as going to the post office to buy a stamp, or buying a train ticket and travelling from A to B.

Legal Services is a business, Mr Smart. Get over it.

However, until we hear the issue of consumer’s best interests being talked about in this debate, you can be sure the consumer & fee paying client, will always come last to the interests of the legal profession … leading to more concessions to the Law Society from the Scottish Government in the weeks to come as the Legal Services Bill travels through the Scottish Parliament.

Funnily enough, the Law Society will then claim it was their work which ‘won’ the even more yet-to-announced, well rehearsed ‘concessions’ from the Scottish Government, and thus maintain its existence to fight another day ….

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far

Friday, March 19, 2010

Scottish Government back down on lay appointments to Law Society Council as lawyers interests threaten to break pro-consumer legal services bill

Scottish GovernmentScottish Government backed down after threats from lawyers. AFTER TWO WEEKS of bitter campaigning by solicitors who threatened to derail passage of the Legal Services (Scotland) Bill through the Scottish Parliament over certain powers which allowed Ministers to appoint non-lawyers to the Law Society’s ‘decision making’ Council, it has been revealed the Scottish Government has caved in to demands from the legal profession who want the Law Society’s ‘decision making’ Council to remain an exclusive lawyer-only affair.

The sudden climb-down by the Scottish Government, who are now also expected to cave into more demands from the legal profession intent on watering down the Legal Services Bill proposals to retain their long held monopoly over the public’s access to justice in Scotland, come after an intense two weeks of campaigning by solicitors, law firms, and even the Law Society of Scotland, who, while officially supporting the Legal Services Bill, were privately threatening to kill off the bill’s chances of securing a successful passage in the Scottish Parliament, after it became known several MSPs had been contacted by Law Society officials & individual solicitors keen to see the bill would not accumulate enough support for its passage into law.

Fergus EwingFergus Ewing, the Scottish Government’s Minister for Communities & Safety was wheeled out at a Law Society ‘road show’ to announce to angry solicitors their beloved ‘Council of the Law Society of Scotland’ would remain a lawyer-only club, making the following announcement :"The power of Scottish Ministers to make regulations specifying the proportion of lay members and the criteria for selection was intended as a fall-back, only to be used in the unlikely event that there would be a need to resolve any disagreements regarding the proportion of lay members.”

Mr Ewing continued : "Following representations from the Law Society of Scotland, in which it re-affirmed its commitment to lay appointments, I no longer consider it necessary for Scottish Ministers to have this fall-back power. Therefore, I intend to bring forward an amendment at Stage 2 of the Legal Services (Scotland) Bill to delete section 92(4), (5) and (6) of the Bill."

Ian SmartIan Smart, still pulling the strings against wider transparency at the Law Society. Ian Smart, President of the Law Society of Scotland welcomed the Scottish Government’s capitulation to lawyers vested interests, saying : "This is an important concession and very good news for the profession. The government promised to listen to the Society and the profession’s representations and they have done so. We, along with others, have pressed hard for changes to key aspects of the Bill and I am very pleased that the first of these have been taken on board and that amendments will be made.”

Mr Smart continued along the theme of putting a gun to the head of the Legal Services Bill & wider consumer rights of access to justice : "We’ve had a constructive working relationship with the government which we want to continue, and we will be seeking further amendments. Independence of the legal profession is essential and we have stressed throughout the ABS debate that, along with the profession’s core values and principles, it cannot be compromised. We have also maintained that consumers must be protected and that access to justice is a priority – legal services is not and cannot be seen as a purely commercial activity.”

Mr Smart seems to think the way in which Scottish solicitors fleece the public with expensive, poor quality legal services should not be treated as a purely commercial activity, rather he casts up these non-existent ‘core values & principles’, of what one may ask ? What values do solicitors have these days when consumers have a better chance of winning the Euromillions lottery than finding an honest law firm in Scotland who wont rip them off ?

Law Society of ScotlandLaw Society wins the day again after the usual threats of a split & intimidation of Scottish Government. Section 92 of the Legal Services Bill had required the Law Society to appoint a number of non-solicitor members to its Council to represent the public interest - a joke, surely as the Law Society have never represented the public interest. The now withdrawn proposals would also have allowed Scottish Government Ministers after ‘consultation with the legal profession, to set limits or requirements on how many non-solicitors would sit on the Law Society’s Council.

The proposals drew bitter arguments from within the legal profession, which boiled over onto television with arguments between the Law Society’s current president, Ian Smart & Mike Dailly of the Govan Law Centre, who along with several other law firms aligned to the Glasgow Bar Association threatened to split from the Law Society over the issue of control of the Law Society’s Council and perceived Ministerial interference, which it was claimed, would lead to a fundamental loss of the legal profession’s independence.

I reported earlier on the arguments within the profession which led to today’s climb-down by the Scottish Government, here : Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice, accompanied by a video clip, worth watching again :

Law Society’s Ian Smart & Govan Law Centre’s Mike Dailly argue the toss on Legal Services reform :

Law Society of ScotlandLaw Society wins the day again after the usual threats of a split & intimidation of Scottish Govt. While it may look to some the bitter arguments between lawyers & the Law Society threatened to disturb the ‘harmony’ of the legal profession, seasoned observers are well used to these kind of tactics, where part of the profession will break off in an outburst against Government proposed reforms, while the Law Society feigns support to a certain degree for the disputed Ministerial plans. A few days or weeks later, the plans are then quietly (or as in this case, spectacularly) dropped by Scottish Ministers, allowing the legal profession to regain its harmonious outlook of ripping off consumers and getting away with it.

SLCCScottish Legal Complaints Commission : ‘A Government Agency’. Earlier this week, the Scottish Legal Complaints Commission was even dragged into the fight against the Legal Services Bill by lawyers desperate to retain their monopoly over regulation of complaints and the public’s access to justice, when the Law Society’s Chief Executive Lorna Jack launched attacks at the hapless law complaints quango, branding it a “Government Agency”.

Lorna JackAttempt to deflect attention from Law Society’s woes ? Lorna Jack attacked Scottish Legal Complaints Commission. Lorna Jack said earlier this week in comments issued to magazines & newspapers : “We also need to be aware of the law of unintended consequences. The easiest way to split the functions would be pass regulation to the Scottish Legal Complaints Commission. That would remove a huge amount of control from the profession and hand it to a government agency – and that could be a serious own-goal.”

The usual turn of events then ensued after Ms Jack’s comments appeared in the media, with other ‘personalities’ emerging from the legal profession’s blood stained woodwork to issue veiled threats if the Scottish Government handed over all the Law Society of Scotland’s present regulatory functions to the Scottish Legal Complaints Commission, there would be more trouble in store for the Legal Services Bill and anyone supporting it …

Replying to Ms Jack’s outbursts against the SLCC and pleas for solicitors unity, Mike Dailly of Govan Law Centre said the Law Society should combine with the Scottish Legal Complaints Commission in a new, slimmed down regulator, with representation left to existing & new professional associations. Personally, I doubt that could work, as Mr Dailly is simply proposing a Law Society take-over of the SLCC, which already appears to have happened without anyone particularly noticing ….

Mr Dailly in his online blog at “The Firm” is also reported to have called for Ian Smart to step down as Law Society President, for, as Mr Dailly alleges, failing to promote the interests of solicitors - above everyone else by the sounds of it …

MacAskill tight lippedJustice Secretary Kenny MacAskill is no fan of independently regulating fellow solicitors. Given the equally hapless Justice Secretary Kenny MacAskill has made it be known he has no intention of creating an independent regulator of legal services in Scotland – presumably because Mr MacAskill fears independent regulation as much as any of his more crooked colleagues in the profession itself, we can expect the Scottish Government to settle for ‘the quiet life’ and back down yet again, giving the Law Society total control over regulation once again, as if it already doesn't control the SLCC as things currently stand …

Today, the Scottish Legal Complaints Commission refused to comment on Ms Jack’s ‘Government Agency’ jibe, preferring to point out in a statement “The SLCC does not intend to comment on the article that appeared in the Scotsman. The status of the SLCC is defined in the Legal Profession and Legal Aid (Scotland) Act 2007, Schedule 1 Sections 1 (1) and (2) and there is a link to the Act on the SLCC website.” – sounds as if they have a lot of confidence in themselves …

Given the developments of this past week .. it may well be that Scots are not going to receive much of a fairer deal for access to justice or access to legal services, certainly if the legal profession & the Law Society of Scotland have their wicked way once again …

Wednesday, March 17, 2010

‘Consumer blueprint’ for future of civil justice in Scotland launched but how long must consumers actually wait for fairer deal on access to justice ?

Consumer Focus ScotlandConsumer Focus Scotland publish policy for Civil Justice reform. CIVIL JUSTICE REFORM gains yet another ‘boost’ as Consumer Focus Scotland publishes a new report providing their version of a ‘consumer blueprint’ for the future of the civil justice system in Scotland. “Making Civil Justice Work for Consumers” sets out various policy positions on civil justice and highlights the key areas of the system that are priorities for much needed reform, as we learned last year from Lord Gill’s Civil Courts Review

The principles underpinning Consumer Focus Scotland’s approach to civil justice are that the system needs to be user-friendly, affordable and accessible to ensure that when required users are able to enforce their rights and settle their disputes.

The report, which can be downloaded here : . Making Civil Justice Work for Consumers: The consumer perspective on making the civil justice along with a summary of the report here : Making Civil Justice Work for Consumers : A Summary, proposes a four-step approach to removing barriers to access to justice:

* A public legal education strategy
* Joined up and appropriate advice services
* An emphasis on informal means of resolving disputes
* More user-friendly formal dispute resolution processes

Head of Policy and Solicitor at Consumer Focus Scotland, Sarah O’Neill, said that the report’s approach is aimed at establishing a civil justice system that better meets the needs of consumers:

Sarah O’Neill : “The Gill Review has already outlined a vision for making Scotland’s civil courts fit for the twenty-first century. This report, informed by years of research and policy development, sets out a four-step approach to reforming the wider civil justice system to ensure that it better meets consumers’ needs and delivers access to justice.”

“Most of us will use the civil justice system at some point in our lives. For many their interaction with it will be difficult and unwelcome because of the stressful issues they are dealing with. Whether facing a divorce or a dispute over access or residence of children, debt recovery, a consumer dispute or a housing problem, the public’s experience of the civil justice system has too often been that it doesn’t properly support them to resolve their dispute in the most appropriate way, at the appropriate time.”

“The present system focuses too much on the needs of the professional users of the system, such as solicitors, advocates and judges, rather than those of the ultimate users, those who become involved in civil disputes. We believe that implementing the steps set out in this report would give Scotland the user-friendly, affordable and accessible civil justice system that consumers desperately need in the twenty-first century.”

Step One of Consumer Focus Scotland’s report, highlighting the need for a Public Legal Education Strategy for Scotland would seek to ‘educate’ consumers on their legal rights & entitlements in Civil law, allowing Scots to make informed choices about which legal services best meet their needs, enabling consumers to:

a) recognise they have a problem
b) recognise the problem has a potential legal remedy
c) identify a course of action to pursue that remedy, be it taking action themselves, or seeking help from an appropriate source

The report states : “Recent research commissioned by Consumer Focus Scotland and the Scottish Legal Aid Board pointed to an urgent need for better information for the public and wider access to support services in all courts. A consistent message emerging from this research was that few people knew what to expect and many were deeply concerned about understanding the language and procedures of the courts. Crucially, what no research can do, however, is indicate how many people are put off pursuing their case as a result of their preconceptions about what’s involved. We therefore believe a public legal education strategy is critical to improving access to justice for consumers in Scotland.”

Step Two of the report highlights the issue of "’Joined Up and Appropriate Advice Services’ where Consumer Focus believe “An important feature of a just and inclusive society is the ability of all of its members to enforce their rights, meet their responsibilities and resolve their disputes. Fundamental to this is the need for consumers to have access to high quality legal advice, at an affordable cost. Such advice should be provided on a client-led basis, and consumers should have access to the most appropriate services to deal with their problem, be that from a private, public or voluntary sector provider. We believe that this ‘complex mixed model’ of advice provision best serves consumers by providing a range of services to suit their particular personal and legal circumstances.”

slcc suicides1Scottish Legal Complaints Commission were praised in the report as a significant step forward. A surprise in the report is praise for the Scottish Legal Complaints Commission, where the report comments (almost unbelievably) : “There have been a number of significant improvements in this area in recent years. The establishment of an independent Scottish Legal Complaints Commission has been a significant step forward, giving consumers greater confidence in the independence and impartiality of the complaints system.”

Compare that ill-deserved, bizarre, compliment, with the reality : Scottish Legal Complaints Commission reveals it passed most complaints about lawyers back to Law Society, has failed to act on Master Policy report

SLCC Expenses claims & salariesConsumers are more likely to lose out at the Scottish Legal Complaints Commission, after revelations board members & senior staff ‘hate’ complaining clients. Actually not one individual who has contacted myself or the general media about the Scottish Legal Complaints Commission would back that statement up, and aside from any fiddled, seasonally adjusted, massaged or spun-out-statistics provided by the SLCC on their work to-date, the factual experiences of those dealing with the beleaguered quango support the notion the SLCC is more of a front for the Law Society than an organisation consumers should trust to regulate complaints against ‘crooked lawyers’.

Both consumers and solicitors in general believe the SLCC has been a giant step backwards, as all the evidence to-date seems to indicate beyond any reasonable doubt. The SLCC is mired in scandal, indecision and extrudes an anti-client venom bordering on the hatred of consumers, which would rival the world’s most deadly, if heavily intoxicated snake.

Step Three of the report, referring to an “Emphasis on Informal Means of Resolving Disputes”, puts forward ideas for alternative venues of dispute resolution outside that of the court, where consumers invariably end up in a tangled, complicated web of legal & court processes most view as being in place to defeat the individual’s access to justice.

The report in this regard states : “While most people agree that the courts are an important way for people to enforce their rights, on the whole, those involved in disputes are more interested in finding a resolution to their problem or obtaining compensation for harm or loss than necessarily enforcing their legal rights. We also know that people would generally prefer to avoid becoming involved in legal and court processes. Those who actually end up in a court or tribunal tend to express high levels of dissatisfaction with the process. The Paths to Justice Scotland research found that fewer than half of those whose dispute was resolved by a court or tribunal thought the decision was fair, as opposed to 80% of those who reached an agreement”

Lord GillLord Gill’s Civil Courts Review proposals welcomed by Consumer Focus Scotland. Finally, in the report’s ‘Step Four: More User-Friendly Formal Dispute Resolution Processes’, Consumer Focus Scotland states its welcome for Lord Gill’s Civil Courts Review criticisms & proposals : “We have welcomed the recognition by the review that the current court system, in providing a system that is ‘slow, inefficient and expensive’ is failing to deliver justice. While there have been a number of developments aimed at improving the court system, many of which have had benefits for consumers, the civil courts review’s analysis was that this piecemeal reform has left a system which is not fit for purpose.”

Class ActionsScots have already had to wait 27 years for Class Actions. Support for Class Action litigation gets a much needed mention in the report, which states : “Consumer Focus Scotland believes the initial focus for reforms must be to make those changes which will have the greatest impact for consumers. We hope that the recommendations within the civil courts review for such a procedure to be introduced will be taken forward in early course. This recommendation, together with other proposals for a proposed Consumer Advocate and for multi-party actions contained within the UK Government’s Financial Services Bill, has the potential to bring about real benefits for consumers. It will make a remedy a practical possibility for consumers, particularly where large numbers of people have each lost small amounts which it would not be economic to litigate about individually.”

McKenzie FriendsMcKenzie Friends, already kept out of Scotland for 40 years due to lawyers campaign against assistance for unrepresented party litigants in court. The use of McKenzie Friends in Scotland’s court system gets a mention : “There is also an urgent need to make the court system simpler and more accessible for individual court users. We believe there should be a comprehensive overhaul of all current court processes, to make them easier to use and simpler to understand. This not only includes simplifying the content and tone of court forms but also allowing the use of ‘McKenzie Friends’ to offer unrepresented litigants moral support and other assistance. These would be important steps to encourage more consumers to make use of the processes that exist to help them.”

Sections 25-29Rights of Audience in Scotland have been held back for over 17 years due to legal profession’s campaign against consumers increased access to justice. The report also goes onto recommend reviews to rights of audience for non-lawyers in Scottish Courts, stating : “We also think there is merit in reviewing rights of audience for lay representatives with a view to making the rules as uniform and cohesive as possible. We believe this would add clarity for consumers, the courts and the advice sector and may encourage greater use of lay representatives where a consumer cannot afford, or otherwise access, a solicitor.”

Law Society & faculty of advocatesLaw Society & Faculty of Advocates have always resisted reforms to increase consumers access to justice. All in all, not a bad report, but is this just another report after another report and another report ? Will the reforms being endlessly talked about actually happen this time ? For one thing, you can be sure the legal establishment and the legal profession, will fight many of these reforms all the way, tooth & nail, because many of these reforms amount to a loss of income to solicitors & law firms. As we all know, the legal profession do not take kindly to losing out on ripping off consumers & clients as they have been used to doing in Scotland for .. well .. decades … and as just about every ‘reform’ for giving consumers a better deal against Scotland’s notoriously poor legal services market have been effectively butchered by whichever administration was in power at the time … well .. don't expect improvements anytime soon.

MacAskill tight lippedJustice Secretary Kenny MacAskill : THE greatest obstacle to reforming Scotland’s legal profession, regulation & consumer access to justice, even believes he owes his Government’s election success to the legal profession. You can also be sure the Scottish Government will drag its heals on these ‘consumer friendly’ reforms for as long as possible, due to there being far too many ‘lawyer lovers’ in the current administration, who even believe their elected office is due only to the work of the legal profession who .. rather than apparently how we, the electorate voted the last time around …

Monday, March 15, 2010

Survey reveals majority of Scots consumers support Lord Gill’s civil justice reform proposals as access to legal services debate gathers pace

Which logoWhich? consumer survey backs up Lord Gill’s report. MOST CONSUMERS IN SCOTLAND want increased access to legal services with more informal means made available for dealing with minor disputes than can be obtained at present, reports new research carried out by the consumer organisation Which?, showing widespread support for the proposals contained in Lord Gill’s Civil Courts Review for updating Scotland’s woefully restrictive & inadequate legal services market, access to which is currently controlled & dominated by solicitors & the Law Society of Scotland.

Scots back Lord Gill reforms to legal servicesWhich? research on legal services announced today. The results of the survey on legal services show that more than eight in ten (83%) people in Scotland agree that legal services should be easier to understand, and a similar number (79%) agree that they should be less formal and more user-friendly. More than eight in ten (83%) Scottish people think that a relatively informal method of dealing with small claims disputes about poor quality goods and services, with no wigs and gowns, and no need to hire a lawyer would be a suitable method.

Should they need to settle a legal dispute about poor quality goods or services themselves, around eight in ten (79%) Scottish people would like to have the option of accessing less formal ‘problem solving’ courts where people could get redress without having to use a lawyer.

Speaking on the results of the research, Which? principal public affairs officer, Julia Clarke, said: “The idea of having to go through a formal court process may put some people off pursuing legal disputes over faulty goods or services. That’s why it’s important that other, less formal, ways of settling disputes are made available to Scottish consumers.”

Lord GillLord Gill’s Civil Courts Review was highly critical of ‘Victorian’ Scots justice system. You can read more about Lord Gill’s Civil Courts Review, which detailed significant proposals to reform Scotland’s Civil Justice system in one of my earlier reports, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all. I would remind readers that while the Scottish Government and Holyrood are dragging their feet over Lord Gill’s highly critical review of Scotland’s civil justice system, some good has already come of it with the introduction of McKenzie Friends to Scotland’s courts, a much needed reform to access to justice which Lord Gill himself supports.

Lord Gill’s Civil Courts Review itself can be viewed & downloaded 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 :

My Previous coverage of the Legal Services Bill and its sometimes rocky progress through the Scottish Parliament can be viewed here : Legal Services Bill - The story so far

You can watch video coverage of evidence given to the Justice Committee by the Consumer lobby & OFT, HERE and view the legal profession’s point of view on Scotland’s legal services market, HERE.

Further video coverage of the Parliamentary debates on widening access to justice in Scotland can be found at InjusticeTV & LawyerTV

Justice CommitteeHolyrood’s Justice Committee were quick to listen to the legal profession, but excluded individual court users experiences on access to legal services. Sadly, the Justice Committee excluded members of the public from giving their own impressions & experiences of Scotland’s legal services market, which is a pity because if they had allowed ordinary members of the public in to testify, they would have gained first hand knowledge of how difficult & obstructive the Scottish justice system is to consumers & court users.

One could easily conclude however, the MSPs on the Justice Committee simply did not wish to hear such damning evidence from ordinary people who actually have experience of being denied access to justice by the Scots legal services market which the Legal Services (Scotland) Bill is in part at least, seeking to reform …

An official from one of Scotland’s consumer organisations agreed with queries put to him over the lack of any input from members of the public in the Justice Committee’s evidence sessions.

He said : “Considering the importance of the Scottish Government's proposals to reform legal services, I am somewhat surprised the Justice Committee chose not to invite one single solicitor’s client or court user to establish for themselves the opinions of consumers on the ground. Leaving out the very people the legislation is supposed to benefit raises serious questions on what the Justice Committee actually wanted to hear.”

I would urge all readers & consumers to support the passage of the Legal Services Bill, by contacting your particular MSP at the Scottish Parliament, asking them to support your choice of wider access to justice for yourself and all Scots.

Make a difference and be part of the debate. Make your opinion count, ensuring Scots consumer interests take precedence over those in the legal profession who have for far too long manipulated & controlled individual Scots access to justice for the profitable ends solely of the legal profession. Its your justice system, you pay for it, make it serve you !

Friday, March 12, 2010

Holyrood's Justice Committee offers ‘cautious support’ for Legal Services Bill reforms, as lawyers fight to hold back Scots wider access to justice

Debating chamberScottish Parliament supports legal services reforms. WIDER PUBLIC ACCESS TO JUSTICE in Scotland received a significant boost today as the Scottish Parliament’s Justice Committee gave their ‘cautious support’ to the Scottish Government’s Legal Services (Scotland) Bill proposals of opening up Scotland’s closed-shop monopolistic legal services market where for decades, consumers access to legal services & the courts has effectively been controlled by lawyers, advocates & the profession’s governing & self regulatory bodies such as the powerful Law Society of Scotland.

In a report published today, the Justice Committee agrees to the general principles of the Bill, which aims to widen public access to justice in Scotland and allow new entrants into the lucrative legal services market such as banks, supermarkets & others who may well provide legal services to the public at a much reduced cost than currently offered by law firms & solicitors represented & regulated by the Law Society of Scotland.

Which logoWhich? campaign led to access to justice reforms now before Holyrood. Speaking this afternoon, Julia Clarke, for the consumer organisation Which?, who started the process which has led to the proposals contained in the Legal Services Bill said : 'Which? has always said we would prefer to see an independent regulator, which would have answered the concerns being expressed by the Committee. However we do believe that the Legal Services Bill will bring benefits for the public using legal services, bringing with it more competition, more choice and better value.''

bill aitkenJustice Committee Convener Bill Aitken MSP. Holyrood’s Justice Committee Convener Bill Aitken MSP, speaking on the Committee’s report out today said: “This Bill will enable, but not oblige, the Scottish legal profession to enter into new forms of business that could create more competition and potentially offer consumers more choice in legal services. The committee’s evidence from the consumer lobby was in the main supportive of this Bill. The evidence from the profession itself was less supportive and in some cases fundamentally opposed to the Bill’s direction of travel.

Mr Aitken continued : “The committee understands the principles behind the consumer lobby’s arguments but received little in the way of hard evidence. Without this hard evidence, it could be argued that increased competition could result in detriment to the consumer as a consequence of the loss of local and high street legal firms if banks or supermarkets enter the legal services market.”

Little in the way of hard evidence …. someone obviously hasn't been paying attention to how the legal profession has been ruining clients and restricting Scots choice of legal representatives or access to justice for decades … which has already resulted in attempts through legislation such as the Legal Profession & Legal Aid (Scotland) Act 2007 to deal with some of that hard evidence some are now intent on ignoring.

Today’s committee report also highlights concerns about:

  • The extent of powers given to Scottish Ministers as a consequence of not establishing a new regulatory body similar to the Legal Services Board for England and Wales.
  • The potential lack of independence for Scotland’s legal profession when it is regulated by Scottish Ministers. The committee recommends giving the Lord President a greater role in the approval of regulators in order to address this concern.

Reservations were also expressed by the Justice Committee on whether the “fitness for involvement” test contained in Section 49 of the Legal Services Bill is robust enough to regulate any outside investors, such as banks or supermarkets, as desirable institutions (or individuals) having financial stakes in law firms & legal services providers.

Factors for determining the ‘fitness for involvement’ include the investor’s financial position and business record, probity and character (including any associations) – factors which, if enforced today over many law firms I have reported on in terms of client complaints & poor service, would probably closed own several of Scotland’s ‘leading law firms’, if the true characters of some of these ‘leading lights of the legal profession’ ever became public.

On the question of opening up access to advocates, the Committee agreed with the Scottish Government that “in a jurisdiction the size of Scotland and given the relatively small number of advocates, there is no need to impose alternative business structures on the Faculty of Advocates current business model .. an issue at odds with the OFT’s findings and consumer experiences.

The Committee also said “it is not aware of there being any significant degree of dissatisfaction with how the regulatory arrangements for advocates presently operate but nevertheless would invite the Faculty to consider what steps it might take to modernise its regulatory regime” – complaints against advocates, who would contemplate such a thing !

Law Society of ScotlandLaw Society of Scotland wants to be ‘approved regulator’ of legal services despite history of anti-consumer bias. On the thorny question of regulation of an expanded legal services market, where the Law Society of Scotland has already stated it will seek to be the approved regulator to regulate all who provide legal services in Scotland, the Justice Committee’s report said : “Given that Scotland is a small jurisdiction, the Committee is not persuaded that there will be any great benefit in having more than one or two Approved Regulators. The Committee is particularly concerned about the prospect of bodies, external to Scotland, becoming Approved Regulators and seeks assurances from the Scottish Government in this respect.”

The Committee’s report went onto state : “The Committee observes that any body seeking to combine regulation and representation is likely to face some difficulties as a result of the inherent tension between the two roles. The Committee recognises that there are indeed tensions with and conflicting viewpoints about the Law Society’s dual role but is of the view that these are for the Law Society and its members to consider and resolve.” this point has already led to debate & arguments between factions of the legal profession, which I reported earlier in the week, here : Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice

On a more hopeful note, the Committee felt that some parts of the Bill, namely Section 36 would unduly restrict the way in which voluntary or not-for-profit organisations can provide legal services. The Committee asked the Scottish Government to consider this point further after concerns were raised on this issue by Citizens Advice Scotland.

Background : The Legal Services Bill has come about in Scotland after the consumer organisation Which? issued a “super complaint” to the Office of Fair Trading under section 11 of the Enterprise Act 2002, stating that the consumer interest was being harmed the restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates.

The OFT’s response to the Which? super complaint can be viewed here : OFT response to super-complaint (pdf) along with their comments from July 2007 which stated : “Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services.”

The Scottish Consumer Council, now renamed Consumer Focus Scotland, issued its response to the OFT’s consideration of the Which? super complaint, broadly supporting the moves to open up Scotland’s legal services market. The SCC’s reply to the OFT can be viewed HERE (pdf)

MacAskill tight lippedJustice Secretary MacAskill – no friend of independent regulation argument, It should be noted England & Wales already have the Legal Services Act 2007 in place, leaving Scotland trailing behind once again, simply because the legal profession north of the border has far too much influence over the pace of access to justice reforms. Missing from Scotland’s version is of course, the issue of independent regulation, where the current Justice Secretary Kenny MacAskill, seems to believe lawyers can still be trusted to regulate themselves – an obvious mistake, as lawyers have never been trustworthy when it comes to investigating complaints against their colleagues.

Over the years, many previous Scottish administrations including the present Scottish Government have dithered & delayed on giving Scots wider access to justice, while the legal profession put the brake on calls for reforms, even preventing enacted legislation from coming into effect, such as in the case of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, which allowed wider rights of audience in Scotland’s courts, but was held back by the legal profession’s seventeen year campaign to keep ‘outsiders’ out of courtrooms, while solicitors raked in exorbitant profits from clients who had no alternatives to turn to for legal representation.

The Legal Services (Scotland) Bill was introduced in the Scottish Parliament on 30 September 2009 and referred to the Justice Committee, who received written and oral evidence from a range of sources all of which can be found on the Justice Committee web page.

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far

Tuesday, March 09, 2010

Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice

Law Society of ScotlandLaw Society’s argument to maintain closed shop legal services weak. The debate on the Legal Services Bill, which aims to open up Scotland’s monopolistic legal services market, currently dominated by solicitors & the Law Society of Scotland, took another twist at the weekend with the appearance on television of the current President of the Law Society, Ian Smart & the Govan Law Centre’s Mike Dailly, where chiefly, the concerns of the profession itself were debated, rather than how consumers would ultimately benefit from long needed changes to the way we choose our legal representatives & access justice.

A clip of the interview, from BBC Scotland’s The Politics Show, passed onto me makes for interesting viewing for all those concerned about how the legal profession wish to keep their business market stitched up as the long held monopoly which lawyers have been used to maintaining over the public’s access to justice.

Both Mr Smart & Mr Dailly appeared not so interested in the lot of the client, (who is after all paying for them to offer legal services as a business, rather than some noble cause which serves the community) more the representatives of the legal profession, minus anyone from the consumer lobby, appeared to focus on the internal squabble for control of the Law Society itself, and its current dual roles of representing solicitors as well as regulating them, and of course its alleged claims to represent the clients best interests, claims which we all know to be .. well … a deceit.

Law Society President Ian Smart & Govan Law Centre’s Mike Dailly on Legal Services Reform.

From the debate I note Mr Dailly brings up the well known issue of supermarkets & banks price fixing their services & products. Well of course we all know the legal profession does exactly the same, and gets away with it time & again as there is no recourse to question solicitors bills (false, padded, or genuine) other than submitting the account to an almost bogus audit to the auditor of the court, who also usually happens to be a solicitor.

I think we need less of those one sheet A4 letters with four lines of text on it, charged at £160+VAT each which solicitors are so famous for charging clients for (usually around 10 or more at a time over at least a year and nothing achieved in the client’s case) and more competition where consumers will be able to shop around for legal services rather than be ripped off by the current crop of … well .. for the want of a better term, qualified robbers ?

Fortunately for Scots, there are more sensible forces in the debate on legal services reform such as Which?, who have done a lot of work to bring the Legal Services Bill to the Scottish Parliament, after the whole process was kicked off by the Which? “super-complaint” to the Office of Fair Trading, which you can read about in a previous report, here Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland

Which? recently did a survey of consumers, supporting the notion that most Scots wish to see a more open legal services market, and be given freedom of choice on who represents their legal interests, rather than being forced to use a solicitor who can basically charge what they want (that old price fixing model solicitors have been used to all these years).

Which? research concluded most Scots want more open legal services market & independent regulation (click on images to view larger versions)

Which consumer resarch on legal services for Scotland Page 1 Which consumer resarch on legal services for Scotland Page 2 Which consumer resarch on legal services for Scotland Page 3 Which consumer resarch on legal services for Scotland Page 4

Which consumer resarch on legal services for Scotland Page 5 Which consumer resarch on legal services for Scotland Page 6 Which consumer resarch on legal services for Scotland Page 7

For consumers to be able to trust & depend on legal services, independent regulation is a must, considering the disgraceful history of the Law Society of Scotland and now the Scottish Legal Complaints Commission on the subject of regulating complaints against solicitors.

Sadly the Scottish Governments Legal Services Bill currently lacks any significant proposals for independent regulation of legal services in Scotland, as the Law Society seems to have easily arm twisted the likes of Justice Secretary Kenny MacAskill into backing away from that idea for now … but the campaign goes on to bring fully independent regulation to Scotland’s currently ill served legal services market.

Saturday, March 06, 2010

Consumer protection 'a low priority' as law firms call for split from Law Society masks solicitors power grab for Scots legal services market

Law Society of ScotlandLaw Society of Scotland faces division over Legal Services reform. LEGAL SERVICES REFORM which would bring Scots wider access to justice is facing a new , if perhaps temporary hurdle as several solicitors & law firms who are upset over the plans contained in the Scottish Government’s Legal Services Bill, call for a break away from the Law Society of Scotland, who are now being accused of not representing solicitors best interests, by not protecting the ‘independence’ of Scotland’s legal profession – which actually translates into not protecting solicitors current monopoly over consumers access to justice.

The Legal Services Bill, which you can read more about in my previous reports HERE, if passed by the Scottish Parliament, will effectively allow much wider competition in Scotland’s currently ‘solicitor only’ dominated legal services market, freeing consumers from being forced to use a member solicitor or law firm of the Law Society of Scotland to gain access to justice or legal services.

In a reformed legal services market, banks, supermarkets and others will be able to provide Scots consumers with legal services at costs much less than those currently charged by law firms controlled by the Law Society of Scotland, who are now more widely known for their failures to represent clients best interests while charging huge fees for little work, than achieving actual successes for clients who often end up worse off than before they walked in the lawyers front door.

Those leading the call to split from the Law Society are the Glasgow Bar Association, the Govan Law Centre, along with two Glasgow law firms, MacRoberts & Thomsons , all warning that introducing Legal Services Reform to Scotland (the same reforms introduced in England & Wales during 2007 with much less fuss) will undermine centuries of independent legal representation in Scotland. While client & consumer protection appear very low down on the list of priorities in this argument which is essentially between law firms & the Law Society vying for control over the consumers right to choose their legal representative, the Glasgow Bar Association have now called for a referendum for all solicitors to decide whether the Law Society of Scotland should represent their interests.

Now that certain sections of Scotland’s antiquated, monopolistic legal services market realise their income & influence via the current business model is under threat, a drive is underway by solicitors to influence members of the Scottish Parliament to vote against the Legal Services Bill, citing among the arguments, that Government Ministers will be able to interfere in the selection of members of the Council of the Law Society, where up to 20% of the 60 will be made up of members of the public Government stooges, who could be picked according to criteria set by ministers – just like we saw at the Scottish Legal Complaints Commission, where the Law Society managed to stuff the SLCC with its own people as I reported earlier here : Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

The problem with that argument about Ministerial interference however, is as you can see that despite Ministers apparently having the power to make independent selections, they always appear to select more stooges from the profession itself, so in reality nothing much will change, other than perhaps certain sections of the legal profession not being able to stuff the Council of the Law Society as they have always been used to doing …

Clearly solicitors don't want anyone other than solicitors on the Law Society’s ‘Council’, although that would be fine with me if the Law Society were to be stripped of its regulatory & disciplinary role, and left to be nothing more than a representative union for solicitors, rather than the all controlling, all powerful, all crooked regulator it has always been.

An official from one of Scotland’s consumer organisations branded the current debate ‘a diversion’ and accused certain sections of the legal profession from trying to obstruct reforms which would lead to greater consumer choice and protection from Scotland’s notoriously poor legal services market.

He said : “Clearly certain sections of the legal profession seem intent on staging a coup for control of the Law Society in an attempt to thwart much needed reforms to Scotland’s legal services market. This is purely a selfish move designed to promote the interests of solicitors over consumer choice.”

He continued : “The only way to resolve the fears of solicitors in this debate would be to strip the Law Society of its regulation role and that of representing clients best interests, steps we would wholeheartedly welcome.”

Ian SmartLaw Society President Ian Smart – independence is essential. The response from the Law Society of Scotland was to claim it had always promoted independence of the legal profession as being fundamental to its support of the Legal Services (Scotland) Bill. Mr Smart said : “In its response to the Bill and during parliamentary evidence sessions, the Society insisted that independence is essential and that the role of the Lord President should be strengthened to ensure that this remains the case. The Society will continue to lobby changes to section 92, which has been raised as a concern by both the Society and its members.

Mr Smart continued : “The Bill as it currently stands provides ministers with powers to make regulations which could specify the criteria they considered appropriate for appoint ability and the number of lay members on Council and can prescribe a minimum number or proportion if they believe such a prescription is necessary. Before these regulations are made, Scottish ministers would have to consult with Council, the Lord President, OFT and other consumer bodies. That would only be the case if the Society failed to implement section 92 properly. Only the Society can appoint any lay members to the Council, not Scottish ministers. It should be remembered that most other professional bodies have for many years appointed lay members because of the qualities, expertise and talent they bring, including the GMA (General Medical Council, GDA (General Dentists ' Council), ICAS (accountants), RICS (surveyors) and the BMA (British Medical Council), which although is a representative body also has large patient representative committees.”

“It may be difficult to accept any input by politicians into how the Society functions, despite it being a body set up by statute, but the 20% lay membership on Council, which will become part of the Society's obligations, was decided by Council members and has been agreed as appropriate by ministers. This is despite continued pressure from the consumer lobby for somewhere between 50% to 75% of lay membership on the Society's council. Lay members have also been on the Society's regulatory committees for around 20 years and all now have 50% lay membership. Non-regulatory committees are predominantly made up of practicing solicitors.”

“None of this represents a handing over of independence of Scotland's largest legal profession and taking an antagonistic stance does not help negotiate any long term benefits for the profession.”

If solicitors are going to have a say in who represents them, without giving any regard as to who will represent the very clients who fund their ill deserved lavish offices & law firms, perhaps clients and consumers should also be able to have a referendum on who they want to regulate legal services and handle complaints against the legal profession.

Which logoWhich? revealed recently most want independent regulation of legal services. We already know from research which has already taken place on this issue, some of it dating back over a decade from the Scottish Consumer Council, to current research undertaken by UK consumer organisation Which?, consumers have always wanted a fully independent regulator of legal services in Scotland, rather than the half way, hapless, ‘just as crooked’ Scottish Legal Complaints Commission, which now ranks among most clients as Law Society MkII when it comes to dealing with complaints against solicitors.

Only fully independent regulation of Scotland’s legal services market will resolve these and many other problems faced by consumers and solicitors alike but as we have seen from the dithering Justice Secretary, fully independent regulation of solicitors is apparently a step too far for Mr MacAskill who according to his own civil servants, is too busy purging the Justice Department than addressing issues affecting Scots access to justice …

For more on this story, read THIS REPORT in the Herald