Tuesday, August 07, 2007

Calls for OFT to fine lawyers for market manipulation as Law Society & solicitors split on reforms to legal services

Firstly, to all of you who have recently send me information on your cases, I am progressing through them and will get back to you as soon as possible.

While trying not to be sidetracked on the debate into independent regulation of the legal profession in Scotland, I note this week, the media reports there are breaks between several legal firms and the Law Society of Scotland in terms of the profession's policy towards the deregulation of legal services in Scotland

It is of course, good to see diverging views from the legal profession on issues, where in the past, the Law Society of Scotland and it's inner circle of egos & dictators ruled the debate and how policy would be implemented against such major changes as the OFT now recommend

I can't but help wonder though, if this is a rerun of last year's strikes by the regional bar associations over the allegedly poor legal aid payments system, where it appeared that parts of the legal profession, namely the family law solicitors were taking initiatives on their own to boycott legal aid cases for increased legal aid payments, while the Law Society of Scotland supposedly stood by in the background, officially encouraging discussions, rather than strike, but all the while actually helping to arrange the case boycott strategy and sympathetic media publicity for the lot of legal aid lawyers, while making sure they slipped in a little part about requiring to retain the ability to control complaints against their legal colleagues ...

You can read some of the issues which cropped up in the legal aid case boycott here : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase .. so take note people, nothing is as it appears with the legal profession when it comes to policy being discussed in public ...

Getting back to the deregulation of legal services in Scotland, which is only starting to come into action now, after challenging FOI requests, revelations of interference from a former Lord Advocate, and of course the OFT making it's recommendations on the Which? 'super complaint' to open up access to justice, there remains significant questions to be answered on why, for the past 17 years, the relevant parts of Scottish Law which we have had sitting on the books since 1990 via the Law Reform (Misc Provisions) (Scotland) Act 1990, specifically Sections 25-29 were never enacted.

Of course, the simple answer to why Sections 25-29 were never enacted until March of 2007, lies with the Law Society of Scotland and the rest of Scotland's legal profession.

Simply - the legal profession didn't want the access to justice laws enacted, because it would destroy their monopolistic control over access to legal services, where up until now, anyone requiring legal services or needing access to the courts, must go through either an advocate or solicitor. With billions of pounds at stake in the business model of legal services in Scotland, there is little wonder the legal profession was protecting it's market monopoly for the past 17 years.

The planned opening up of access to legal services in the Law Reform (Misc Provisions) (Scotland) Act 1990 seems never to have had a champion of it's advantages .. the public had never been appraised of the intentions of the act to their full benefit ... the Scottish Legal Services Ombudsman had never made much comment on it either (despite the office of the SLSO actually being created from the same piece of legislation), and of course, successive administrations at the Scottish Executive & Scottish Office before it, failing to tackle the planned implementation of the reforms ... with even a serving Lord Advocate daring to interfere in the public's general right of access to justice, suggesting the reforming parts of relevant law be repealed.

However, now that things are out in the open, due in no small part to the campaign for independent regulation of the legal profession, the debate on access to legal services rages just as much as calls to completely remove any complaints & disciplinary procedures from the Law Society to the new Scottish Legal Complaints Commission - and that is a good thing, because it is clear the legal profession itself has stifled debate on tinkering with it's monopolistic business model for the past 17 years.

The Herald newspaper reports there are splits developing between some of the 'top law firms' and the Law Society of Scotland & Faculty of Advocates on how to proceed with the 'Clementi Reforms' which have come into force in England & Wales.

Good, it's about time the membership of the legal profession took a more proactive and independent view of things from the Law Society of Scotland, which after all, has led the Scottish legal profession to it's lowest standing in public esteem ever, with ever rising levels of complaints, poor standards of service, and an almost suspicion of any service on offer at all, given the lack of honesty, transparency & accountability which the public have long noticed over how lawyers do their business.

However, is this 'split' with the Law Society on the question of opening up access to legal services, genuine ? or purely for public consumption, while behind closed doors, the 'leading lights' of the Law Society & legal firms meet to carve up market control for themselves yet again, simply under another guise ....

The Law Society, particularly Douglas Mill, it's infamous Chief Executive, are known opponents of opening up access to legal services, and despite Mr Mill appearing on BBC News last week to 'welcome in the changes' with gritted teeth... the Law Society's underlying opposition to opening up the legal services market in Scotland remains as strong as ever .. with new tactics being adopted to control the qualifications needed to enter the legal services market ... currently controlled by, yes, the Law Society of Scotland.

There is also the question then of what the OFT should now do, in the wake of fairly conclusive evidence there has been market manipulation of legal services in Scotland for a significant period of time.

Last week, the OFT fined British Airways for market manipulation & price fixing... and since the legal profession has been engaged in the same actions for a much longer period of time - denying access to justice to those who have tried to get a lawyer to sue a lawyer, or pursue financial claims for loss against the actions of their solicitors, the OFT should now step in and fine the Scottish legal profession for their insidious market manipulation on access to justice.

In all of this debate & counter debate on access to justice, there has been no mention yet of the desire to tackle the sins of the past - where the membership of the legal profession has supported, or at least, allowed, the Law Society of Scotland to prejudice complaints to such a degree as to cause wholesale injustice to solicitors clients, ruined lives, lost health, lost homes & property, lost estates, lost funds, lost lives ....

Before the public can trust the legal profession again with honesty, transparency & accountability, there must be a genuine effort made to resolve the many cases of injustice that the legal profession itself has caused to thousands of clients over the years .. and if the legal profession itself doesn't want to put right those sins of the past, the likes of the OFT should take action to force such a move.

Herald article follows :

Top firms and Law Society split over plan to boost competition

IAN FRASER August 06 2007

A wedge has been driven between Scotland's largest law firms and their regulator, the Law Society of Scotland, over whether the country's legal services market should be opened to competition.

The rift became public following the publication last week of recommendations on lifting restrictions in the market for legal services in Scotland by the Office of Fair Trading. The OFT effectively gave the Scottish Executive until the December 2007 at the latest to come up with concrete proposals for reform of the legal services market.

Larger firms in Scotland, including Dundas & Wilson, last week told The Herald they warmly welcomed the OFT's recommendations - and, indeed, confirmed that they had been instrumental in shaping the consumer watchdog's thinking.

Alan Campbell, managing partner of Dundas & Wilson - which with 600 employees and annual turnover of £60.8m, is Scotland's largest law firm - said that he attended a high-level meeting with OFT officials alongside senior representatives from law firms McGrigors, Maclay Murray & Spens, Shepherd & Wedderburn and Pagan Osbourne six weeks ago.

He said that at the meeting, held on 13 June, there was "total unanimity" from the solicitors present. He said they supported having a level playing field between Scotland and England on deregulation of the legal profession and argued that anything else would be potentially both anti-competitive and against consumers' interests.

"At its heart, what we want is for lawyers to be able to share profits with non-lawyers subject to suitable regulatory safeguards," Campbell added.

What was happening instead was vested interests were working to ensure the current closed shop' is maintained said Campbell. He went on to attack the key plank in the arguments of Roy Martin, dean of the Faculty of Advocates and Douglas Mill, chief executive of the Law Society of Scotland.

Both have said that Scotland's legal services market is different from that in the rest of the UK and, therefore, requires different policies and structures. However, Campbell said: "Anyone who pretends that the market for legal services is substantially different in Scotland from that in England and Wales is simply kidding themselves. Jurisdiction on its own cannot define a market. If it does, it is anti-competitive."

He added that to claim that the services provided by law firms are in any way unique and incapable of being replicated elsewhere is "a fallacy."

Campbell questioned earlier claims from the Law Society of Scotland that a super-complaint from consumer advocate Which? was premature.

"In my view it was very timely indeed. Law firms need time to plan ahead and to mobilise," he said referring to the argument used by some that, since reforms intended to sweep away restrictive practices in the legal profession in England and Wales, do not take effect until 2010-11, there is no need for regulators and politicians in Scotland to act now.

"We need to know what the policy is going to be in Scotland, so that we can ensure we can make appropriate plans that ensure the sustainability of our own businesses," said Campbell. "There is already divergence between England and Scotland and each day it gets wider."

Asked if the Law Society's stance on deregulation smacks of protectionism, Campbell said it was, "difficult to see it otherwise".

Colin Gray, managing partner of McGrigors, echoed some of those sentiments. He said: "McGrigors welcomes the OFT's recommendations, which will help to create a level playing field across the UK legal market. Such liberalisation will enable providers of legal services to gain access to more capital, attract and retain talent and develop new service lines.

"What is important is that legal firms operating in the Scottish market are able to innovate and grow, as well as compete fairly with peer firms operating throughout the UK. We must avoid limiting choice for clients, which in turn may have a negative impact on the region's economy."

Alistair Morris, chief executive of Pagan Osbourne, also said he welcomes the OFT's recommendations. He has already said that he believes the implementation of Clementi reforms in Scotland would revolutionise the legal profession for the better.

He said: "The law remains a cottage industry with an anachronistic culture, and it is ripe for consolidation. If law firms were permitted to raise equity from external investors, it would hasten that process."

Campbell implied that for the Law Society to launch another "talking shop" on the issue of alternative business structures on September 28 is too little, too late. He said: "The OFT has effectively said to both the executive and the Law Society that they must up their game. However, they don't really appear to have got the message yet."

Mill, chief executive of the Law Society of Scotland, said: "What we must ensure is that Scotland seeks its own solutions and that access to justice and protection of the public remain core to any plans for reform.

"We are now planning a second conference in Edinburgh on September 28 to explore the opportunities which the creation of alternative business structures could bring to Scottish law firms, while also examining the regulatory issues they may present. We intend to bring forward our ideas on these issues later this year.

"We have continued our discussions with the Scottish Executive on the future of legal services in Scotland and Justice Secretary Kenny MacAskill has already spoken about Scotland's law firms being able to compete outwith their borders as well as within' and that change is necessary."

MacAskill and the Executive have 90 days to outline their approach to remove restrictions in Scotland.

Sean Williams, the OFT's executive director said: "I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."


Ed said...

Quite right Peter, fine them a few hundred million and fine MacAskill if he stalls on the reforms too.

Anonymous said...

Another good article Peter.

I think your blog is beginning to make people thing twice about the lawyers and how they run things.

Keep up the good work as always.

Anonymous said...

What business had the Lord Advocate to stop people choosing who they wanted to represent their legal affairs.Just protection for the legal profession by the looks of it.

Yes the OFT should fine the Law Society and anyone else who has been engaged in stitching up the legal services market.

Anonymous said...

Dear Douglas

Either pay this wannabe William Wallace off or take him out with a pike.I can't get work done now for clients asking me if they should run their case by Peter Cherbi first and frankly its pissing us off.You created this menace so its down to you to get rid of him somehow.

Donald Anderson, Edinburgh said...

It will be funny to see how MacAskill and the SNP handle that one if the OFT do fine the lawyers for fiddling justice.

Maybe they should fine them and give this lot a bloody nose after what he said last week.

Al said...

Peter said:

“In all of this debate & counter debate on access to justice, there has been no mention yet of the desire to tackle the sins of the past - where the membership of the legal profession has supported, or at least, allowed, the Law Society of Scotland to prejudice complaints to such a degree as to cause wholesale injustice to solicitors clients, ruined lives, lost health, lost homes & property, lost estates, lost funds, lost lives ....”

And when these “lost lives” were, in many instances, very well known to certain politicians at the Scottish Parliament they stood idly by and did precisely NOTHING to intervene, and bring an end to the injustice and wrong-doing.

Given that Kenny MacAskill, Cabinet Secretary FOR JUSTICE, has no intentions whatsoever in righting the “sins of the past” you speak of – perhaps because he’s been well aware of them over the past 8-plus years as a politician and ex-lawyer not prepared to criticise his former colleagues in any way – then I think it is probably time that “the OFT [stepped] in and fine the Scottish legal profession for their insidious market manipulation on access to justice” as you rightly suggest.

MacAskill isn’t going to do anything about his colleagues many “sins of the past” … NEVER. After all … doesn’t he still have a bed at the Law Society HQ in Drumsheugh Gardens?!

But then, many of us new about MacAskill’s protection of his legal profession and establishment buddies a very long time ago – except his boss, Alex Salmond (Scotland’s esteemed First Minister), it would appear … he did appoint him as Scotland’s Cabinet Secretary FOR JUSTICE, did he not?!

Peter Cherbi said...

#Anonymous @ 8.12pm

The Lord Advocate at the time (Lord Hardie) made a bad decision in my view to seek repeal of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990.Others seem to agree, that his meddling in this matter helped to hold back implementation of the relevant sections for opening up access to legal services - but the fact is he wouldn't have said what he did, if he didn't have political support at the time, which obviously he got, as the Scottish Executive sat back and did nothing.

Lord Hardie's excuse that no one had raised the issue or campaigned for it to be introduced, has to be viewed in terms of how the Law Reform Act of 1990 was publicised .. and simply, it wasn't, and no media outlets bothered to study it or run stories on it during the 1990s. Not forgetting of course, the Law Society of Scotland were effectively sitting on the Law Reform Act too, to make sure those sections relevant to opening up the legal services market were never implemented, so their members could retain the monopoly over the public's access to justice.

#Anonymous @8.32pm

Rather than write to Douglas Mill via the comments section of my blog, you can always send him a memo - He likes memos, you know ... especially the ones on how to get rid of clients & critics ... There are a lot more victims of the legal profession than just myself waiting to have their cases resolved and receive back what they have lost at the hands of crooked lawyers.

#Donald Anderson @9.01pm

If the OFT fine the legal profession in Scotland for market manipulation, and the Justice Secretary tries to intervene, that would certainly be an interesting scenario ... However, we have our own Minister for the Economy in Scotland - John Swinney - how about he does something on this since he knows the situation quite well on how the legal profession have manipulated the legal services markets for so long...

@Al @ 9.12pm

Well said as usual, Al. If the Justice Secretary can't handle Justice, he should be replaced. Time also to ratchet up our campaigns and make the issue even more high profile than it already is.

It's not too difficult to let people know 'the brand' of legal services in Scotland is just too dangerous to use - there's no trust, no standards, no recourse when things inevitably go wrong - and if the Justice Secretary isn't up to put those matters right, he can't have a claim to be an effective Justice Secretary.

Cleaning up the sins of the past is the key issue to mending the Justice system in Scotland - and it's fairly obvious to see the legal profession are desperate to avoid that, because there's so many victims, so many ruined lives to their actions ... time to put that right, if the SNP are anything at all about claiming to help the Scottish people.

Strange how we now are having to rely on English regulators via the OFT to get action on these issues ... so much for an independent Scotland then.

farout said...

Lawyers must be having kittens over what you are telling the public !

You seem to have helped change stuff for the better so keep it up like others say.

Anonymous said...

All for it and agree with everyone else.The OFT should fine the lawyers over what they have done to keep access to justice laws out of reach of the public.

Anonymous said...

Good point about Swinney.He should be vocal in this issue too from a business standpoint.

Kenny MacAskill has met with the Law Society a few times.When is he going to meet with their victims ?

George M said...

"AL" is spot on.

Kenny MacAskill will want to wait until all of you are dead before he has to do anything.

Don't believe a word he says or any promises he makes.He will always go back on his word for his colleagues because they hold plenty dirt on him from when he practised law.

Cherbi get your famous corruption detector out and do the business on those that need doing.

Eric said...

I think I will write a letter to the OFT supporting your call to fine the lawyers too.

Keep up the good work Peter Cherbi.

Anonymous said...

I still say you have to give the SNP a chance on this one everyone.

It's obvious Peter has been battling the crooked lawyers for a long time but he got somewhere.Why don't you all ask MacAskill for a meeting with the victims too so he gets both sides of the argument.

Anonymous said...

I didn't realise how dangerous lawyers were to their own clients until I read this site.

My own solicitors are Balfour & Manson.I see you had problems with them too.I have had no end of trouble with them and will be emailing you some details of what went on after I complained to the Law Society.

H.Mackintosh said...

Good Call Peter

The OFT should teach this lot a lesson.You have exposed plenty evidence of market manipulation by the lawyers so its time for some payback.

Anonymous said...

Every ones said everything about it so I'll just agree.

Carry on the good work Peter.I'm sure the lawyers must be losing millions over all this bad press.