Friday, September 07, 2007

Justice Secretary MacAskill critical of 'adversarial' Law Society complaints policy as new Commission takes the honest route

Kenny MacAskillJustice Secretary Kenny MacAskill admits Law Society complaints process is flawed. Justice Secretary Kenny MacAskill has made a startling admission on the negative policy of long enforced 'adversarial' complaints practices operated by the Law Society of Scotland, which are widely thought to have saved many solicitors with poor regulatory records from client complaints over many years.

The Justice Secretary's insight into the way complaints have been poorly handled against lawyers by the Law Society is crucial in that Mr MacAskill now recognises and agrees with his Ministerial colleague John Swinney's constituent, Mr Stewart MacKenzie, that the current 'adversarial' approach of self regulatory complaints handling by the legal profession is widely prejudicial against clients, and not in the public interest.

Justice Secretary K MacAskill to Cabinet Secretary J Swinney 30 August 07Justice Secretary Kenny MacAskill claims the Scottish Legal Complaints Commission will operate under an ‘inquisitorial’ approach to complaints. Kenny MacAskill : "We are very confident that the Commissioners will agree with Mr Mackenzie that an inquisitorial approach is the best way to establish /analyse all the evidence and is less likely to place the complainer at a disadvantage." A remarkable admission from the Justice Secretary, which indicates the necessity of a more open & honest policy of 'inquisitorial' complaints investigation via the new Scottish Legal Complaints Commission, formed as a result of the Legal Profession & Legal Aid (Scotland) Act 2007. This startling admission from Mr MacAskill on the subject of regulation of the legal profession, is a first from a politician in Government, and seems to indicate the new SNP Scottish Government is now beginning to recognise the incredible scale of regulatory wrongdoing by the Law Society of Scotland, which has operated this 'adversarial' policy directly against the interest of clients, but for the protection of it's own solicitors, for so long.

S.MacKenzie to J Swinney 3 July 07Cabinet Finance Chief John Swinney hears from his constituent on former SLSO Chief and now SLCC Chair Jane Irvine’s criticisms of Law Society complaints procedures. Mr Stewart MacKenzie's query to the Justice Secretary via Mr Swinney, points out references from the 2006 - 2007 Annual Report from the Scottish Legal Services Ombudsman (pdf), specifically the following, where Jane Irvine, the current, and last Scottish Legal Services Ombudsman makes damning references to the Law Society's complaints handling procedures : The relevant sections of the Scottish Legal Services Ombudsman's 2006 - 2007 report quoted in Mr Mackenzie's letter to John Swinney MSP : Page 11 : "the Law Society of Scotland disregards the fact that their dury is to investigate, not run adversarial systems. It is certainly unacceptable in a day where modern complaints handling systems demand open responses to expressions of dissatisfaction"

Page 13 : "The Law Society of Scotland's duty is to investigate service complaints. In addition it has a role in protection of the public against inadequate legal services. I see absolutely no justification therefore for continuance of the manifestly adversarial systems under which consumers are forced to define issues and prove what went wrong"

Confirmation if any were needed then, from the office of the Scottish Legal Services Ombudsman that the Law Society of Scotland does indeed, operate an 'adversarial' system of complaints handling policy, totally against the public interest, and which basically sets out to protect lawyers against client complaints at every turn.

Jane IrvineFormer Legal Services Ombudsman and now Legal Complaints Commission Chair Jane Irvine tagged Law Society’s complaints system as ‘adversarial’. At the heart of this matter, as the Scottish Legal Services Ombudsman mentions, are the adversarial complaints procedures & policy put in place, to force the client to prove each & every point at every turn, with no help from the Law Society or legal profession, no outside help from anyone or any independent organisation, while the solicitor facing the complaint has the full resources of his legal training, the Law Society of Scotland, and various other organisations such as the Legal Defence Union, Law Care, and many more, all at the solicitors disposal to kill off any chance a client has of obtaining redress.

These 'adversarial' complaints procedures, which have allowed many solicitors within the legal profession to escape client complaints, while building up disgraceful regulatory records, are the principle design of the Law Society's infamous Client Relations Office under the Directorship of Philip Yelland, where complaints also see regular intervention by the Chief Executive Douglas Mill himself, whose touch of a complaint can seemingly blight a member of the public for life.

Debating chamberHolyrood’s Justice 2 Committee were told of the Law Society’s ‘adversarial’ complaints system. Curiously, Mr Mackenzie informed the Justice 2 Committee LPLA hearings of the fact that the 'adversarial' approach to complaints handling benefited the trained & skilled lawyer & the Law Society of Scotland itself, while putting a complainer at a severe disadvantage. Mr Mackenzie's case, which was considered by the Justice 2 Committee in it's deliberations on the LPLA Bill, also saw a major skirmish between John Swinney & Law Society Chief Executive Douglas Mill, who contradicted the terms of his own memos relating to interference in negligence claims made by Mr Mackenzie against several law forms. Douglas Mill denying such interference as Law Society policy does not allow it, but John Swinney producing Mr Mill's own memo to contradict his claim of innocence ... which then saw Douglas Mill 'swear on his granny's grave' in a less than convincing denial of his actions, clearly reflected in the terms of Mill’s highly controversial memo.

As it turned out, Holyrood’s Justice 2 Committee failed to understand the issue of 'adversarial' complaints handling, and failed to insert adequate protections in to the LPLA Bill before it passed into Law, which now leaves the Law Society of Scotland with the advantage of retaining the 'adversarial' approach to complaints handling of conduct issues, while the Scottish Legal Complaints Commission will investigate service issues via the 'inquisitorial' route - widely seen to be more honest, transparent, and of benefit to the public.

John Swinney questions Law Society Chief Executive Douglas Mill over Law Society’s interference in claims against crooked lawyers :

You can read about the amazing confrontation between Douglas Mill & John Swinney here : The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.

Justice Secretary MacAskill, went on in his letter to Mr Swinney to respond on the issue of possible conflict between the Scottish Legal Complaints Commission's practices and those of the Law Society of Scotland, assuring :

"... the Legal Profession & Legal Aid (Scotland) Act 2007 gives the Commission significant influence over the professional bodies in relation to their investigation and prosecution of conduct complaints. We are confident that the Commission will exert its influence when it considers that the professional bodies are acting in a manner which is not considered 'fair or proper' "

Such an 'adversarial' complaints policy operated by the Law Society of Scotland, clearly in favour of solicitors, and prejudicial by design against the client - which the Justice Secretary now recognises the existence of, is wholly unacceptable in any regulatory system which begs to be transparent, accountable and independent.

Clearly such a remedy to this extreme divergence in regulatory policy between the co-regulators of the Scottish legal profession must surely be to remove any regulatory function from the Law Society of Scotland, as it continues to demonstrate it cannot handle regulation in both the interests of it's own member solicitors, and the public.

The time is now right to remedy these failings of the Law Society of Scotland, taking into account and resolving the many cases over the years, and victims, who have long suffered at the hands of such poor regulation operated by the solicitors regulatory body.

The challenge is now there for Mr MacAskill and the Scottish Government to take up, and see that Scotland, gets a trustworthy, transparent, accountable, and dependable legal profession where honesty and quality legal services will be forthright, and the interests & rights of both the client and legal representatives fully and equally respected without the prejudice, deception and protection that clients have so long been used to when being forced to deal with the Law Society of Scotland.


Poirot said...

Good report Peter.I wonder if Kenny MacAskill planned to say that as it confirms much of what you have been saying over the years about how poor the Law Society carry out their dual role.

Keep us informed in the next instalment.

Anonymous said...

Mr Cherbi, I made a comment on another story about how Mr Yelland had ruined my complaint against my ex solicitor.My son has been able to scan the letters and I wonder if I could send them to you.If I could have your email address I will get him to send them to you.
Thank you for all your work on the internet and this is another good story on the Law Society.

Anonymous said...

It really makes you wonder why J2 left the Law Society in this "adversarial" position on conduct complaints after hearing about it from all of you.

A word in the ear of J2 from the Law Society ?

Dear me,I'm beginning to sound like you Peter,and I'm a solicitor !

Brian said...

My comment of this morning seems to have suffered your own adversarial approach to all things legal.

I can see no good coming from you Mr Cherbi.The sooner you and your kind depart this life the better.

Peter Cherbi said...

#Poirot @ 1.25pm

Let's hope Mr MacAskill backs up his words with action, now he admits to knowing what we have been saying all along for years about the Law Society and complaints against lawyers.

#Anonymous @ 2.27pm

You can send me the details on your case via my email on my profile. If you have had any contact with your MSP, MP or the Scottish Executive on related issues, I would be pleased to see that too.

#Anonymous @ 3.30pm

Left out by design I suspect ....

The Law Society were always looking for the Justice 2 Committee to deliver 'technical but not so obvious advantages' to them for the LPLA Bill - at least, that's what one source at the Parliament told me, and a couple of journalists I know.

#Brian @3.53pm

Yes, you are correct, I have not published your earlier comment.

If all you can do is make comments to insult people and others who comment here, who have perfectly legitimate grievances against the way they have been treated by the legal system, I suggest you examine your motives for entering the legal profession, if it is true you are a lawyer as you purport to be.

Anonymous said...

Amazing how you keep up with the news Peter.

I wonder if KM will issue a Press Release on this if challenged on his anti Law Society comments.

Keep up the good work.

Anonymous said...

cue retaliation story in next weeks hootsmon by unbalanced lawyer posing as journalist.

good one pete as always

Anonymous said...

Good one on MacAskill.I bet he will be pleased with that !
Do you know if Douglas Mill has called for his sacking yet ?

Anonymous said...

Not much doubt after reading this blog that lawyers cannot be trusted with overseeing complaints against their own.

I hope Mr Brian finds peace someday too.

Anonymous said...

I'm inclined to agree with you on all counts.No one else in the profession except those at the Law Society will miss regulation if it is fully transferred to the new commission.I think complaints is what keeps the likes of Phil & Douglas going,so if you deny them their fun,they will hopefully wither away and leave us all alone.

wee rab said...

#last comment sums it up.

Take complaints away from lawyers and make regulation independent.

For more on crooked lawyers visit

Anonymous said...

Good story on MacAskill's letter.Whats the reaction from the Law Society ? More threats ?

Anonymous said...

Just my two cents worth but this bunch at the Law Society would have been better prosecuting your Mr Penman before this Tribunal and paying you off.Instead they did the reverse and made you and the reform campaign into a monster which now comes back to bite them in the ass.Good.Lesson to be learned.Pay off the ripped off and clean up the Law Society.Too late for that.Mr Cherbi and others are on a roll.Mr Mill you are an idiot.No one believes you.Mr Cherbi you need suitable closure on all of this and a damn good job in law or the media.Secretary for Justice help these people and do as they ask.Scotland will be a more honest place if you do.Me - I have never seen such a disgrace for lawyers anywhere as when I read a diary of injustice in Scotland.

Al said...

# Anonymous @ 6:22 PM

Your points are spot on, especially when you conclude:

“Me - I have never seen such a disgrace for lawyers anywhere as when I read a diary of injustice in Scotland.” And so say all of us!

But still, four months into our new SNP “Government”, MacAskill and Salmond refuse to acknowledge that there is any problem whatsoever with Scotland’s “Justice” system, and start to admit to and deal with the many “sins of the past” – not least at the Law Society (aka “The Star Chamber”) and at the devious and deceitful Crown Office … under Elish Angiolini who, lest we forget, they decided to keep at the helm of this wholly unaccountable, corrupt and “law unto itself” public body.

SHAME ON THEM for their blind eyes, deaf ears and REPEATED INACTION – not least over the disgraceful way they have treated the bereaved family of the Swedish girl Annie Borgesson (RIP) … and the many others highlighted in the links below.

Much respect and admiration for Peter – who, from experience, I can say is truly one of life’s good guys … who is all too willing to help others who have been treated shabbily, cruelly and criminally by Scotland’s legal and political ruling classes … those many crooks and criminals who rule our land!


Annie Borgesson case


Other relevant cases

Anonymous said...

Peter you did very well on this story.The Executive should take you onboard for their legal team.

Anonymous said...

you should have been writing this blog years ago Peter.By the sounds of things you have helped change a lot since you started this.

Anonymous said...

I like the way you ended it
"The challenge is now there for Mr MacAskill and the Scottish Government to take up, and see that Scotland, gets a trustworthy, transparent, accountable, and dependable legal profession where honesty and quality legal services will be forthright, and the interests & rights of both the client and legal representatives fully and equally respected without the prejudice, deception and protection that clients have so long been used to when being forced to deal with the Law Society of Scotland."

No one can accuse you of being one sided in that case.Good luck as others have said.

Anonymous said...

Making the news instead of reporting it this time.Very good effort Mr Cherbi.I hope your Justice Secretary backs up his words with action this time.Keep biting away at their heels all of you.

Anonymous said...

Douglas Mill has probably had a few hard words with Kenny MacAskill over this one.

Better watch out Peter,Mill will be organising your critics again to do you down.Not that you need to worry though,the wig has certainly bolted on Mill's performance as Chief Executive thanks to you.

Anonymous said...

Good piece on the Law Society and how they abuse the complaints system for solicitors.

I agree there needs to be independent regulation and the SNP should start with that.Your petition looks quite good too Mr Cherbi.Please pursue it.I'm sure there are many who the Law Society have railroaded over the years looking to that for some relief of their losses.Their situations should be addressed fully.

? said...

You wrote this up better than we would have been allowed to.

Anonymous said...

You should come along to the conference on the 28th and see if they will let you in ! Headline : Cherbi enters the lions den !

Bert said...

How can a complaints system be fair if its being run on an adversarial basis ?
I hope Mr MacAskill is going to do more that just write about it.
When can we expect action ?

Anonymous said...

I hear that Peter Duff has Resigned from SCCRC recently but cannot find any details on their web

long live the revolution ! said...

What a let down MacAskill is at Justice.Letting angiolini slip away from Holyrood without so much as a slap on the wrist and bending over backwards to help his pals in the legal world.
Lets hear it for Labour sorry I mean the SNP errrm oh can anyone spot the difference ? Probably not !
What next ? Will Salmond be inviting Mrs Thatcher to dinner ?