Saturday, June 28, 2008

Law Society's 'standards consultation' builds no expectation of improvements in service to clients

After bringing the Scottish legal profession into widely accepted disrepute & disrespect, the Law Society of Scotland has instituted another of it's famous 'talking shop projects', with a 'consultation' on standards within the profession itself.

Of course, having the likes of a code of conduct where rules can apparently be varied on a case by case basis (resulting in even the most extreme offences committed by solicitors against clients being whitewashed), has never been good for the legal profession's image as many thousands of clients have found out over the years when trying to make a complaint against a 'crooked lawyer'.

Clients who are ruined by crooked lawyers have faced the spectre of making a complaint to even more lawyers who end up making sure those members of the public never get proper access to justice again .. and for what reason as these maligned clients have done nothing wrong other than protest against a lawyer ripping them off either financially or with poor legal service.

It should be a crime for a lawyer to rip off a client .. but it seems to be more of a crime for a client to report or complain against a crooked lawyer. How twisted is that ?

The Law Society of Scotland has made do with such advice as this imaginatively titled piece : "How the Law Society of Scotland can help you".

"Most people consulting a solicitor in Scotland will be fully satisfied with the service they receive. Occasionally, there is a problem and you may wish to register a complaint.

The Law Society of Scotland's Client Relations Office has a legal responsibility to handle complaints against Scottish solicitors. Our aim is to work with you to find the best solution to your complaint. We work to do that in a fair, thorough and impartial way"

Of course, that statement from the Law Society is complete rubbish and I have to wonder how the Law Society helped people in cases such as this :

Law Society of Scotland covers up history of crooked lawyer as new President indicates little change on pro lawyer anti client policies

Law Society of Scotland covers up history of crooked lawyer as new President indicates little change on pro lawyer anti client policies

The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.

The Law Society offers further advice here : What to do if you have a complaint

If you are having problems with a solicitor and you are the client, you need to raise your concerns with the firm in the first instance. Solicitors' firms have a Client Relations Partner or officer who will listen to your problem and try to resolve it. This is usually the quickest and most effective way of sorting out the problem.

You could contact the firm and ask for the name of the Client Relations Partner or contact the Law Society of Scotland's Client Relations Helpline on: 0845 113 0018 for that information.

Before considering a complaint to the Society, please make sure that you have done everything you can to resolve the matter directly with the firm"

Interesting .. but of course, another do-nothing rule, which has seen solicitors threaten clients families with physical assault in some cases, and even visits from the Police to clients houses on the back of 'anonymous tips' containing later proved false information.

Lawyers complaints system thought to have caused intimidation of clients for years

Soaring cases of complaints against Scottish Lawyers

Complaining against a lawyer ? You should expect a knock from the Police

So ... rather than try to resolve the matter with the crooked lawyers themselves, it might be wiser and safer to go to a newspaper and publicise everything before attempting even to make a complaint to the Law Society of Scotland ... or in the future, the Scottish Legal Complaints Commission.

So, if you want to participate in the Law Society's 'Standards Consultation', you can participate in it online here : Law Society Standards Consultation or you can download the * Standards Questionnaire (225k) (Word format version) and email it into the Law Society at : or send it to -
Standards Review
The Law Society of Scotland
26 Drumsheugh Gardens

Finally, to add insult to injury, from the Law Society's website : "Client relations is a very important aspect of the Society's work. Consumer protection and quality of service are paramount. Most people who use the services of solicitors are satisfied with the service they receive. However, if you are dissatisfied, we view this matter very seriously"

They really do need to change some of that ... because no one believes it, especially when you get the likes of their Chief Executives pursuing clients and hounding them out of the justice system ... as happened here :

Law Society Chief Executive Douglas Mill lies to the Justice Committee over his relentless pursuit of clients of crooked lawyers :

Telling a bunch of crooked lawyers how they should improve regulating crooked lawyers might not do much good – and it hasn’t done any good so far, but by participating in the consultation, or publicising your woes with solicitors, it certainly gets more views across than the raft of pre-filled out forms which are apparently being sent in by ... lawyers !

Please note, comments for the time being are disabled, as I am working on a few stories and don't have time to keep checking in ....

Following is the Scotsman's take on the "Standards Consultation"

Those who want to wear badge of solicitor respond to new standards

By Jennifer Veitch

MORE than 100 responses have been received so far in the Law Society's flagship consultation to set new standards of service and behaviour for solicitors.

The regulatory body has produced draft guidelines on the appropriate standards of service and conduct that those who want to wear the "badge of solicitor" must uphold.

As well as updating the broad principles that all Scottish solicitors should follow, the review aims to clarify the level of service that the public can expect from lawyers.

The society hopes that the standards – which could be in place by the end of this year – will help to prepare the profession for the new complaints-handling system, due to begin when the new Scottish Legal Complaints Commission opens in October.

Clearer standards about service may help solicitors to communicate with clients and to manage expectations of the services that they will – and will not – provide. Recently, the Scottish Legal Services Ombudsman highlighted a lack of clarity surrounding the level of service offered to clients, particularly in conveyancing cases.

And, as competition is likely to increase following the vote in favour of moving towards alternative business structures, a new set of standards may also help to inform the public about the benefits of instructing a solicitor.

Philip Yelland, the society's head of regulation, said the standards would not offer a check-list for how solicitors should conduct their business, but should make expectations clearer for all concerned.

"We want to try to help clarify and make clearer for the users or potential users of legal services just what the standards they might expect are," he said. "In terms of service, we are going to be talking about very broad principles because every business does things slightly differently, but there are core issues in terms of service standards which need to dealt with.

He added: "What we are doing here is not producing a tick-list of things. We are trying to look at what's there and say: how can we improve this, how we can make it better so someone going in to a solicitor's office has a better understanding of what might happen?"

Yelland said he expected that the new standards would also help solicitors when faced with service complaints, soon to be dealt with by the new commission.

"The standards that will be set and the way they will be articulated will be very broad principles, and from that perspective if there is a complaint, I would expect the solicitor would have to show the commission – 'if that's the broad principle, this is how I met the broad principle'."

A group has been set up to develop the consultation, chaired by Dr Bronwen Cohen, chief executive of Children in Scotland.

Cohen has been keen to ensure that the review takes on board the views of vulnerable groups such as children and young people, and Yelland said further work to clarify standards for specialist legal services may arise from the consultation.

"There may be other things that flow out of this – for example, solicitors who are dealing with children," Yelland said.

"That is a very different market to dealing with adults. There are issues around language and the way you deal with them, and there may be things that fall out of the consultation that will enable us to look at particular areas and how we might deal with them differently."

The consultation responses will be reviewed over the summer with a final set of standards expected to be presented to solicitors at the society's Special General Meeting in September. If approved by the SGM, Yelland noted that the new standards could be in place by the end of the year.

"The reality is that what we are saying is not new – you could argue we are reviewing and restating and improving the wording on what people are already doing. But if there's part of the package that may become a practice rule, then that would need to be approved."

The new standards are being designed to work in tandem with existing rules on conduct and behaviour, in recognition of obligations not only to clients, but to the courts and the rest of the profession.

The draft standards on service are based on four broad principles – competence, communication, diligence and respect.

The standard of competence would require a solicitor to "know and apply the relevant law", "keep up-to-date" and "ensure that those to whom work is delegated are properly trained and supervised".

According to the draft standards, a solicitor would also have to consider "the nature and complexity" of any work, as well as whether he or she had the necessary knowledge and experience. Solicitors would also have to make an "ongoing commitment" to continuous professional development.

The communication standard would require solicitors to clearly explain and define services in letters of engagement, including costs and information on how complaints would be handled.

The standard on diligence would require the solicitor to "deliver on commitments, act in the best interests of each client, maintain and review systems of work and have prompt and transparent fee arrangements."

To uphold the standard on respect, solicitors would have to "treat each person as an individual" and "recognise diversity, different cultures and values".

Standards on conduct would reinforce the need for solicitors to be independent, giving advice "free from external influences or personal interests" and acting in the best interests of the client, balanced with their duties to the rest of the profession.

The draft conduct standards also cover conflict of interest, confidentiality, competence, communication and diversity.

Yelland added that he was pleased by the level of response to the consultation so far, but encouraged more lawyers and members of the public to take part in the consultation, which ends next Monday.

"The standards consultation is on the society's website, and we really want people – both solicitors and users of legal services – to fill it in. It looks at what is already in the Code of Conduct in terms of behaviour and the issues around service standards and asks people to confirm basically whether what we are thinking about saying is what they would expect.

• More information:

Thursday, June 26, 2008

Members interests show Scottish Legal Complaints Commission lacks intended independence from lawyers vested interests

As the days count down to the first of October 2008, when the new Scottish Legal Complaints Commission takes over regulation of service complaints from the Law Society of Scotland, new details emerge of the [sadly] lack of any effort on the part of the Scottish Government to appoint wholly independent individuals to oversee and adjudicate complaints against Scotland's 10,500 solicitors.

It appears almost, the Law Society of Scotland, which has succeeded in overpowering both the Legal Profession & Legal Aid (Scotland) Act 2007 and the new Scottish Legal Complaints Commission, has simply cloned itself into the new Commission.

I note for instance this week, with the announcement of the new Chief Executive of the Scottish Legal Complaints Commission - Elieen Masterman, was also a member of Law Society of Scotland's the Professional Conduct Committee, evidence of which you can see here in the Law Society's annual report of 2004

You can read the Journal of the Law Society's announcement of Eileen Masterman's appointment to the Chief Executive's position here : Complaints Commission has chief executive

Not a very thorough report from the Journal though - they missed out she served on Law Society Committees too ... tut tut ...

Now, I'm not saying the new Chief Executive shouldn't be in her post just because she sat on Law Society Committees .. but I am saying that surely, with the public spirit & intentions of the LPLA Act .. that people entirely independent from the legal profession .. entirely independent from the Law Society of Scotland and it's many regulatory branches .. could have at least been found to staff and run the new [but no longer independent] Scottish Legal Complaints Commission ...

Of course, the problem comes in such a situation we have here in the formation of an entirely new regulatory body, where there is a lack of political leadership or incentive to do other than what has done before.

Where for instance, there is no political leadership or political intervention in an industry to reform or change its ways .. that industry will do as it pleases as so many industries have done in the past when it came to disrespecting the rights of consumers.

Here we have that same situation, where the legal 'industry' in Scotland seems to be able to do as it pleases, because there is no political leadership or political intervention to ensure that the public interest is kept paramount over that of the industrial interest.

The legal profession’s interest in this case, is to keep control of regulation at all costs, to the point of co-opting what was intended to be a new 'independent' complaints commission, now staffed by the very same people, many who have corrupted the regulatory process for many years ensuring clients got nowhere against crooked members of the legal profession.

Sadly in this instance, there appears to be almost no political leadership at all coming from Justice Secretary Kenny MacAskill, who has simply sat back and allowed the Law Society to put forward its people to staff, run and enforce the new Scottish Legal Complaints Commission .. and absolutely nothing has been said about it at all ..

If you actually sit down and think about it, the Justice Secretary has failed to show leadership, raise comment, or even just raise an eyebrow on umpteen more issues facing Scots Law today, from corrupted disclosure practices of the Crown Office, to the failures of the Lockerbie Case, to the failure of Law & order up and down the country itself ..

Kenny MacAskill : Scots Govt ‘great debt’ to legal profession ensured SLCC was taken over by the Law Society & vested legal interests

Do better Kenny ? We Scots deserve better on Justice, I’m sure …

You can read some of my earlier articles on the formation & appointments process of the Scottish Legal Complaints Commission here :

Scottish Legal Complaints Commission - protecting the public or protecting the legal profession ?

Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

Law Society staff secretly migrating into 'independent' complaints commission will ensure continuing problems of regulating Scottish lawyers

Here is the register of Members interests from the Scottish Legal Complaints Commission .. see if you can spot anyone who hasn't had dealings with lawyers or been part of the legal profession's self regulatory set up over the years .. you will be very hard pressed to do so, and it is that difficulty which gives rise to the fact the SLCC is not the independent complaints commission which Scots were promised …!

Scottish Legal Complaint Commission

Members Register of Interests (link opens as a .pdf document)

SLCC members interests Page 1SLCC members interests Page 2

Jane Irvine :

• Currently Scottish Legal Services Ombudsman.

• Professional contact with solicitors' firms Burness, Leslie Deans & Co and Allan McDougal.

• Professional contact with advocates Derek O'Carrol and John Campbell QC.

Douglas Watson :

• Former lay member of a Law Society of Scotland Committee dealing with Access to Legal Information. The role was unpaid.

• A cousin, Bruce Minto, is a partner in Dickson Minto, Solicitors.

• Formerly a Chief Superintendent with Lothian and Borders Police.

Linda Pollock :

• Executive Nursing Director (1989 -2006).

• Interim Board Nurse Director (2002-2003).

• Chief Nursing Officer’s Professional Advisor on nurse prescribing (2005-6).

• Past External Examiner with Robert Gordon’s University and Queen Margaret University.

• Research Honorary Fellow in the Social Science Faculty of Edinburgh University.

• Formerly, a part time nurse member of the Mental Welfare Commission (1997-2005).

• Currently, working as a Primary Care Consultant, undertaking research work commissioned by the Queen’s Nursing Institute in Scotland.

• Registrant member of the Nursing and Midwifery Council Appointments Board.

• Member of the Royal College of Nursing.

• Has accepted hospitality from Gillespie MacAndrew.

George L Irving CBE :

• Director of Social Work North Ayrshire Council 1999-2000.

• Board Member of Ayrshire Council on Alcohol.

• Ex-President of the Association of Directors of Social Work ( Scotland ).

• Chair of NHS Ayrshire and Arran from 2001-2006.

• Led the National Support Team, Management of Offenders 2005-2007.

• Visiting Professor to Glasgow Caledonian University School of Health and Social Care.

• Fellow of the Royal Society of Medicine.

• Fellow of the Royal Society of Arts.

• Member of the Rotary Club of Alloway.

Ian Gordon OBE, QPM, LL.B (Hons) :

• Retired Deputy Chief Constable of Tayside Police.

• Associate Professor in Policing for Charles Sturt University (Australia).

• Formerly Chair of the Association of Chief Police Officers in Scotland (ACPOS) Professional Standards Business Area.

• Vice-Chair of ACPOS General Policing Business Area.

• Director, Quaere Ltd

Margaret Scanlan :

• Consultant, Russells Gibson McCaffrey, Solicitors.

• Member of the Law Society of Scotland and holder of current practising certificate.

• Husband is a senior partner Russells Gibson McCaffrey.

• Husband is a member of the Law Society of Scotland and holder of current practising certificate.

• Past Chair of the Family Law Association.

• Former member of the Scottish Legal Aid Board.

David Smith :

• Member of the Law Society of Scotland and holder of current practising certificate.

• Former member/partner of Shepherd and Wedderburn LLP, Solicitors. Retired on 30/04/08.

• Wife is a Senator of the College of Justice and a non practising member of the Faculty of Advocates.

David Chaplin :

• Former member of Anderson Fyfe LLP, Solicitors. Retired on 30/04/08.

• Member of the Law Society of Scotland and holder of current practising certificate.

• Director and shareholder in Baliol Properties Limited.

Alan Paterson :

•Professor of Law and Director of the Centre for Professional Legal Studies at Strathclyde University.

• Research adviser to the Scottish Legal Aid Board.

• Lay member of the Judicial Appointments Board.

• Co-opted member of the Council of the Law Society of Scotland.

• Member of the Law Society of Scotland.

• Professional contact with Guild & Guild, Solicitors

Tuesday, June 24, 2008

Rough Justice for clients as new complaints commission refuses to investigate cases mishandled by Law Society

Amazingly or not, the work of watering down the intentions of the Legal Profession & Legal Aid Act (2007) goes on.

The latest salvo fired by the legal profession against clients takes the form of rigid conditions imposed by the new Scottish Legal Complaints Commission, itself now mostly staffed by employees of the Law Society of Scotland who have transferred over to the new 'independent' regulator .. which has now definitely lost the tag of 'independence' by any measure of the word.

As reporter in last week’s article but now confirmed, the Scottish Legal Complaints Commission has now categorically stated that it will refuse to handle any complaints regarding any legal work instructed prior to 1st October 2008, the date the new Scottish Legal Complaints Commission begins its work as regulator of 'service' complaints against Scotland's 10,500 solicitors.

This may spell disaster for clients whose complaints are now caught in this tricky period, where it is rumoured, the Law Society are binning complaints against lawyers at an alarming rate before the new Commission takes effect, dishing out infinite measures of 'rough justice' to clients who have fell victim to crooked members of the legal profession.

The SLCC has also decided, after apparently receiving 'counsel's opinion' on complaints handling, that it will refuse to examine historical cases of complaint mishandled by the Law Society of Scotland. A small reminder to readers that ‘Counsel’ would of course, be a member of the Law Society of Scotland ! – so it’s hardly surprising the Law Society would want its old mishandled cases re-examined by the new complaints body.

Being unable to examine cases of the past, may not be such a bad thing though, as the SLCC itself is staffed by many members of the Law Society of Scotland who have performed questionably on complaints against solicitors in the past - and I doubt they would be so willing to reexamine their own work and find against how poorly they had treated clients beforehand while working at the Law Society.

The Law Society of Scotland are of course, very happy about these two policy decisions. It was the Law Society who asked for it, and they have got it. That shouldn't surprise anyone, it was always the goal of the Law Society to ensure the new Commission was 'brought to heal' like an errant puppy, and it has certainly achieved that by populating the new Commission with its staff and lay committee members.

After all, the legal profession is to pay for the new Complaints Commission, so they will definitely want a say in how that money is spent, while ensuring continued control of the regulatory process via former staff from the Law Society who will no doubt continue in the vein they have become accustomed to.

Jane Irvine, the new Chairman of the SLCC confirmed in a statement the Scottish Legal Complaints Commission won't be looking into complaints prior to work instructed before the first of October 2008.

Jane Irvine : "The simple fact is the SLCC's powers to award redress, particularly compensation, would be as limited as those of the Law Society if we re-opened old cases. We wished therefore to avoid re-opening old cases where we could have little effect and instead would probably simply inconvenience parties by taking them through our investigation system. The SLCC will therefore focus on work instructed after 1-10-08"

I have to say, on the whole, I agree with Jane Irvine that the SLCC is not a safe venue to reexamine old cases where the Law Society of Scotland deliberately or incompetently mishandled complaints against solicitors.

We can't have the same people who worked for the Law Society and may have worked on many of these mishandled complaints, re examine their own work now they are based at the new Scottish Legal Complaints Commission. It simply is not on at all. How on earth could they be trusted to come up with an impartial view of their own work or that of their colleagues ? Simply not possible in the real world ... and it would only malign the name of the SLCC further.

There is no doubt that old cases must be reopened - there are many to consider, where the Law Society has let crooked lawyers off the hook but a new body must be created to do that, if only for that task, as I pointed out in my Petition PE1033.

You can read about my ideas for re examining historical cases of injustice caused by the legal profession & the Law Society of Scotland in the following articles :

The polluter pays - Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

Law chiefs & politicians who left Scots denied access to justice should move to heal legal system's sins of the past

There .. not too difficult is it now - and it doesn’t involved rocket science .. only needing the will to clean up the sins of the past and do some good, for maligned clients, the legal profession, the justice system, and the general public interest. Has to be a good idea, surely !

Truth & reconciliation is the way ahead, but putting together the legal profession, maligned clients, politicians who must lead the process or at least encourage it, and consumer organisations is not the easiest of tasks but it is definitely the way to proceed on this difficult and thorny issue, itself which has led to the changes in legislation and the creation of the new complaints commission.

It seems apparent there will have to be an independent Commission created for the purpose of re examining injustice caused by past mishandled cases of complaint against solicitors.

To achieve this, I hope the Scottish Government can see their way to bringing political leadership to this issue, by way of a fully independent Truth & Reconciliation Commission, ensuring a fair hearing for many people who have most certainly been denied such a right by the legal profession in the past - and are now seeing their rights abused again by what was to be a new broom in the legal world, now sadly losing its bristles before it even begins its work.

Hoping to repair the situation somewhat, the Scottish Consumer Council has also been campaigning for historical cases of poorly handled complaints against solicitors to be re examined by the new Commission, and has replied to the SLCC's rules consultation, pointing out inadequacies in the way the SLCC's remit and complaints handling is to be implemented.

In fact, looking at the SLCC’s remit, one could be forgiven of thinking it was … written by the Law Society of Scotland ?

The Scottish Consumer Council's response to the SLCC's consultation can be viewed here : Rules of the Scottish Legal Complaints Commission 2008 Consultation Draft (in pdf format), and is reprinted below.. You can read more about the SLCC consultation HERE

10 June 2008

Dear Jane

Rules of the Scottish Legal Complaints Commission 2008 - consultation draft

Thank you for consulting the Scottish Consumer Council (SCC) on the draft rules of the Scottish Legal Complaints Commission. We welcome the opportunity to comment on the consultation draft.

General comments

While we understand the need for the rules to be formal and precise, it is important that complainers are able to understand how they operate.

We hope, therefore, that the rules will be supplemented by clear, easily understood guidance for complainers on the Commission’s rules and procedures.We understand that the Commission is also to set up a ‘gateway team’ to advise and assist complainers, and we welcome this.

We are concerned that the Commission does not intend to consider re-opening historic complaints, particularly in relation to complaints about endowments sold by solicitors. We consider these to be a class of complaints which may merit being re-considered, for the reasons which we have previously outlined to the Commission.

Specific comments Rule 3 – making a complaint etc.

We are concerned about the implications of draft rule 3(6), which go beyond the issue of historic cases. As the draft rule stands, where the conduct or service complained about relates to a matter in which the practitioner was instructed by the complainer before 1 October 2008, the Commission will not accept the complaint.

This means that such cases will continue to be dealt with by the relevant professional bodies. This could mean that those bodies will have to continue to deal with such cases for many years after the work was carried out – where, for example, there has been a mistake in a conveying a property or in drafting a will, the problem may only be discovered many years after the event.

We presume that this also means that anyone who has a complaint falling into this category will only be entitled to the level of compensation which the professional body was able to award at the time the work was carried out, rather than the maximum £20,000 which the Commission will be able to award.

While it is understandable that the Commission wishes to start with a clean sheet, it seems unlikely that this situation is what the Scottish parliament intended. It also seems unfair on the professional bodies who could continue to receive such complaints for many years.

We would suggest that an appropriate compromise might be to apply rule 3(7) to cases falling within rule 3(6) (a), which would allow the Commission to deal with genuine long-term cases, without opening the floodgates. This would also mean that the professional bodies would know that there was a clear cut-off point for them beyond which they would not have to deal with service complaints. We would expect this date to be 1 October2009, on the basis that they will only accept complaints for up to one year after 1 October, which we understand is the intention of the Law Society of Scotland.

Rules 13-14: hearings

We are concerned that the terms of these rules – which refer to ‘hearings’, ‘evidence’ etc.- suggest an adversarial procedure, although the Commission has made clear it intends to operate in a more inquisitorial fashion.

Rule 21: quorum

We would suggest that draft rule 21(2) should provide that a quorum of any committee should include at least one non-lawyer member and one lawyer member.

Rule 22: reasons for determination

We would suggest that the Commission should give written reasons for its determinations, decisions etc.

Draft application form

It is not clear whether this is intended to be a paper form or if it can be completed electronically. Presumably the need for a signature means that even if it can be filled in electronically, it will need to be printed off and signed.

Again, we assume that the form will be accompanied by guidance explaining the meaning of terms such as ‘instructed’, ‘practitioner’ and ‘professional body’.

Question 1 – it may be helpful to make clear that an approximate date will be sufficient, where the complainer is unsure as to the exact date when they instructed the practitioner.

Question 2- it would be helpful to clarify from whom the details might be kept confidential – presumably the practitioner complained about. It could also be made clearer that not all of the possible types of contact details are required - only a name and postal address are needed in terms of the rules. Clearly, however, other forms of contact may be helpful to the Commission and would also be more convenient for the complainer.

Question 3 – is there a need to state here, as in relation to Question 6, that if the complainer refuses to allow the form to be copied to the practitioner, the Commission cannot investigate the complaint?

Question 4 – it is not clear what happens if the person filling in the form is not the client. Presumably if the Commission is to make a determination under draft rule 3(4) as to whether it is appropriate for that person to make the complaint on the client’s behalf, it will need further information about the substance of the complaint, as set out in the rest of the form.

It is not clear whether this question is also intended to cover the situation where the complainer wishes to complain about a practitioner’s service, but is neither the client nor acting on behalf of the client. This might be someone else who has suffered as a result of the practitioner’s alleged poor service/negligence, such as a beneficiary of a will or the client of a solicitor on the other side of a transaction, for example.

Question 9 - we are not convinced that complainers should be asked about why they want a particular resolution. This could be seen to be intrusive and is not necessarily relevant to the complaint. We would suggest that instead, question 8 could be opened up a bit more – to ask the complainer what ‘other action’ they would like to see, for example.

Finally we would have expected to see a question in the form about whether the complainer has already complained to the practitioner / firm / been through the firm’s complaints procedure. While the new process requires people to go through this stage before going to the Commission, not everyone will be aware of this.

I hope that these comments are helpful.

Martyn Evans Director

Wednesday, June 18, 2008

Law Society ‘writes rules’ for Scottish Legal Complaints Commission as confidence drops in new regulator

Now that the Law Society of Scotland has seen to it the new Scottish Legal Complaints Commission is staffed by many members of staff from the Law Society itself, along with lay members from it's own complaints committee framework, there should be no further need for the open hostility expressed by the outgoing Law Society Chief Executive Douglas Mill, against the new Commission and the very legislation which created the SLCC in the first place.

For a sample of that 'hostility' expressed by the Law Society, read my earlier report on Douglas Mill deciding whether to sue the Scottish Government & Parliament over taking regulation of complaints against lawyers, away from the lawyers : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

Well, the Law Society has found a new way to undermine the new Scottish Legal Complaints Commission, as I have reported above, by simply assimilating it - in short, taking it over with its own work crew who have caused many of the complaints disasters over the last couple of decades.

The same people who considered and frittered away week after week, month after month, year after year of clients lives making sure their complaints against well known crooked lawyers, got nowhere, will now be working for the new Scottish Legal Complaints Commission.

Can such an individual who has operated for years on the notion of ensuring corrupt colleagues escape regulatory penalty, and all the while, ensuring that clients cannot progress their complaints or financial claims for damages, be working for what is supposed to be a new 'independent' complaints commission designed to give the public confidence in regulation of the legal profession ?

Obviously not, and both the Law Society of Scotland and the Scottish Legal Complaints Commission know it .. it's just a matter of moulding the public perception of the new Commission, and who better to do that, the Law Society of Scotland itself, who now take on the campaign to 'inform the public' on what exactly the new Commission is, what kind of complaints it will handle, and what it will do for the public which the Law Society has never done in the past.

Indeed, the Law Society is also apparently handling advice to the new Commission on what complaints it can and cannot handle .. apparently with the full knowledge of the Justice Department of the Scottish Government.

So, taking all that into account, and some previous articles on the Commission I have written about here : Scottish Legal Complaints Commission - a poor record so far

Has there been a changing of the guard at all ?, or just a take over of what was to be a new hope for consumer protection by the Law Society's old regime of lawyer covers up for lawyer once again ...

Surely the Scottish Government can do better for Scotland than this ... or is it the case of the tail wagging the dog when it comes to all things law again ?

Here we go for the legal profession's view of things, reported in the Scotsman in an amusingly titled article … however to bring in a new Sheriff in town for sorting out complaints against lawyers, and ensuring the poor old public get a fair hearing for once, I fear we will need more of a Clint Eastwood or John Wayne approach, than the Elmer Fudd version the new Commission is rapidly turning out to be …

There's a new sheriff in town

Published Date: 16 June 2008
By Jennifer Veitch

FROM 1 October, the Scottish legal profession will have a new sheriff in town. On that date, the controversial Scottish Legal Complaints Commission will begin its work dealing with the grievances of unhappy clients across Scotland.

At present, if they cannot be resolved by the firm’s client relationship partner – a compulsory post in each legal outfit – complaints are handled by the Law Society, the Faculty of Advocates, and the Scottish Legal Services Ombudsman, and although these bodies will remain, there is confusion over how they will hand over power to the Commission and how it will operate after it begins. As the new body prepares to take charge, we look at the fine print.

What is the Scottish Legal Complaints Commission?

A new independent gateway for complaints about lawyers. The Commission will be a so-called “one-stop-shop” for consumers, and its main role will be to investigate legal service complaints.

Controversially, the Commission will have the power to award compensation of up to £20,000 if inadequate professional service (IPS) is shown to have caused “loss, inconvenience or distress” to clients.

What are the Commission’s powers?

Its powers are set out in the Legal Profession and Legal Aid (Scotland) Act 2007. Apart from taking responsibility for handling service complaints out of the hands of lawyers, the most significant change will be that compensation for IPS will be four times higher than the current maximum paid out by the Law Society. The Commission can also compel lawyers to reduce fees, redo work or rectify mistakes at their own expense.

If complaints are upheld, the Commission will charge case fees of between £200 and £400 to firms if a settlement is reached through mediation.

Clients will not be charged if a complaint is not upheld, but the Commission will weed out complaints that are “vexatious, frivolous or totally without merit”. It will also promote early resolution of disputes between a firm and clients.

When will the Commission actually take over complaints handling?

Officially, it becomes the new gateway from 1 October, but there may be a significant time lag before it actually investigates and rules on any matters.

According to the Commission’s draft rules – currently out for consultation – it will investigate complaints if the service that is the cause of the complaint itself has been instructed after 1 October. It could look at historical complaints, but would not have the power to award the higher compensation and wants to avoid a two-tier system.

This means that it is likely that the old complaints system will continue to run for an indefinite period, handling any complaints about service that was instructed before 1 October.

Any consumers with non-urgent business who want the protection offered by the new system might wish to wait until after 1 October to instruct their lawyer.

What happens if a complaint is already being investigated on 1 October?

The Law Society and Faculty of Advocates will continue to investigate any complaints that are already ongoing.

What will happen to the Scottish Legal Services Ombudsman?

This body has powers to investigate the handling of complaints by the Law Society and Faculty of Advocates and will be abolished when the new Commission begins work. Provisions are being considered to allow the Commission to take on the Ombudsman’s function in relation to complaints instructed before 1 October.

What will happen to conduct complaints?

The Commission must refer conduct complaints about solicitors or advocates back to the Law Society or the Faculty as appropriate, but it will review the professional bodies’ handling of misconduct cases. It is also likely to be closely involved in cases where there is an overlap between service and conduct. For example, repeatedly poor service may become a conduct issue.

Who will run the Commission?

It will be chaired by Jane Irvine, the current Scottish Legal Services Ombudsman, and made up of four lawyer members – Professor Alan Paterson, David Smith, Margaret Scanlan and David Chaplin – and four lay members, Douglas Watson, Linda Pollock, George Irving and Ian Gordon. The Commission is independent of government, although member appointments are made by Scottish Ministers.

Who is paying for the Commission?

Apart from start-up costs from the Scottish Government, the short answer is the legal profession. It will be funded by a compulsory annual levy paid by all practising solicitors and advocates, and case fees from upheld complaints.

The Commission has set a budget of £2.6 million to cover the first nine months of operation. The levy will be collected by the Law Society and the Faculty of Advocates and invoices will be sent out this month. Most solicitors – with three or more years’ experience – will pay £307; around 50 per cent higher than first estimated. The levy has been adjusted to give discounts to trainees and newly qualified solicitors, who will pay £153, and in-house lawyers, who will pay £102. Advocates will pay £248.

How many complaints will the Commission get?

This depends on a number of factors. If clients perceive that it has an enhanced ability to resolve disputes – as well as a higher level of compensation – there may be an upsurge in complaints. Yet recent figures suggest the number of legal complaints has been falling. The Law Society’s last annual report stated that complaints about solicitors dropped by almost 30 per cent between 2006 and 2007.

Is any more information available?

The Commission has a new website that sets out its remit and includes consultation documents on its draft rules: , and The Law Society is publishing regular updates for solicitors on its website:

Friday, June 13, 2008

MacAskill struggles to hold back 'Tesco Law' as Law Society dithers on access to justice reforms

The game is on ... as they say, with the announcement yesterday in the Scottish Parliament from Justice Secretary Kenny MacAskill that legislation to open up the Scottish legal services market will be brought in 'as soon as possible'.

While the announcement is welcome .. the problem for the general public who require access to legal services is that Mr MacAskill, and the Law Society of Scotland, don't really want the current legal services monopoly opened up in any way at all, so the process of giving ordinary Scots their freedom of choice of legal representatives, rather than forcing everyone to use a 'member of the Law Society of Scotland' is guaranteed to be more like pulling hen's teeth than the smooth process of breaking up the insidious monopoly which Scots legal services most certainly is.

Here you can read a couple of earlier articles on Mr MacAskill's widely varying attitude towards opening the monopolistic Scottish legal services market :

Leaked letter shows conflicting view of Justice Secretary over legal services market reform

It's time for Injustice to end, but will the SNP end Injustice in Scotland ?

It turned out, the Justice Secretary was only against "Tesco Law" because it would of course dent the huge profits made by his colleagues in the legal profession, who are apparently holding Mr MacAskill 'to a great debt' he openly confessed to in the Scots Parliament.

Justice Secretary Kenny MacAskill amazingly admits SNP owe lawyers a great debt ? What debt ?

Not to be outdone by the Justice Secretary, the Law Society of Scotland have pulled every string in the book, twisted every arm it could find, and called in every politician it heard asking questions on access to justice reforms, for a quick round of bullying to prevent too much free thought gaining momentum on the proposals to give everyone in Scotland the right to choose who represents their legal affairs.

Here you can read an earlier article on exactly what the Law Society of Scotland thinks about "Tesco Law" :

Scots Law Chiefs turn hostile on consumer organisation in propaganda war against deregulation of legal services markets.

Law Society's proposals on legal services market overhaul spin wide of the mark on public interest

The Law Society even taking control of paralegals too, just to keep the monopoly going in the face of reforms … : Scots public get raw deal in legal services as paralegals fall under Law Society of Scotland's dishonest regulatory regime

The Law Society of Scotland, which itself suffered a recent vote against its own policy to maintain market control of Scots legal services definitely want to keep the multi billion pound Scots justice market for themselves and so came up with a policy strategy I reported on earlier, which can only be described as a policy for prevarication and delay ... hanging the whole idea of accepting an opened legal services market on what is the most prized power in legal circles - self regulation.

My earlier report on the Law Society’s caveat of ‘lawyers must continue to regulate lawyers’ : Law Society policy blunders on legal market reforms leave public in the cold, favouring control of regulation & access to justice

Kenny MacAskill himself appears to be sympathetic to the Law Society's quest to retain regulation of the legal profession - even after the legal services market has been opened up, and has, suspiciously, ruled out for now, a fully independent legal services regulator : Justice Secretary rejects independent regulation of lawyers and public right of choice in legal services market

Quoting the Herald article : "There have been worries about regulation of legal services however, with politicians raising fears during an earlier discussion last year.

Speaking in parliament yesterday Mr MacAskill told MSPs: "I am fully aware that members expressed concerns during the November debate that effective regulation was key to safeguarding consumers and the profession alike.

"This is not about Tesco law', as some have defined it. It is about allowing the profession to grow and compete, while maintaining quality of service to the public and the core values of the profession."

Surely after the Law Society's decades of failure as self regulator of Scotland's legal profession, Mr MacAskill, the Scottish Government, and the Parliament itself cannot support an instruction such as the Law Society of Scotland, widely viewed as being the most corrupt regulator the UK has ever seen, in it's desire to be the master of control in all aspects of access to justice ...

The problem is, however, that attempts even to reform regulation of the legal profession have been thwarted by the Justice Secretary himself, and the new Scottish Legal Complaints Commission has been allowed to be hijacked by the Law Society, with it seems the cooperation of Mr MacAskill : Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

If the above article is indicative of the Justice Secretary’s attempts to regulate the legal profession, opening the Scots legal services market will no doubt suffer the same caveats, intervention, and interference by Mr MacAskill to ensure that lawyers still continue to get the best deal against the public. Not very good to say the least … and an indicator on its own surely, that a more impartial person is needed in the Justice portfolio, rather than a lawyer with a vested professional interest …

Sadly, the whole issue has had to be forced on the Scottish Government, who via Mr MacAskill as Justice Secretary, have dragged their feet significantly on the issue of access to justice & freeing up the legal services monopoly.

Perhaps Mr MacAskill, himself a member of the Law Society of Scotland which is openly opposed to market reform, is not the best choice to proceed this issue impartially enough to ensure the public will have full rights of choice, and that the legal services market will have full unrestricted competition, backed up by powerful independent regulation and an 'unrivalled consumer protection policy' which is not managed by the Law Society of Scotland or any well known corrupt insurance cartel.

We can’t have any more of this, for instance : Lawyers negligence insurance branded corrupt, anti-consumer as evidence reveals only one per cent of clients get chance of payout

It is a sad fact that, had the Westminster based Office of Fair Trading not intervened by way of the Which? "supercomplaint", along with campaigns by individuals such as myself, law reform groups, consumer organisations, and even solicitors who are for opening up access to justice .. it seems there would have been no action at all from the Justice Secretary to reform Scotland's antiquated way of allowing it's citizens to conduct their legal business.

Ordinary Scots are surely due the right and freedom to choose who represents their legal affairs, at what cost, at what quality, and at what level of honesty ?

For now, freedom of choice in access to justice is definitely not the case under the system of legal representation controlled by the Law Society of Scotland, but with an opened legal services market, the client's rights should be significantly enhanced, and protections put in place to see that if things go wrong, members of the public don't keep getting ripped off by lawyers and sidelined into oblivion when trying to raise either a complaint or damages claim against poor legal service.

Just don’t expect it to be an easy rock free road in the process of getting there … but let’s hope its not as crooked a road as the way in which the ‘not-so-independent-any-more’ Scottish Legal Complaints Commission has went down …

Read on for the story from the Herald :

MacAskill paves the way in parliament for ‘Tesco law’


A shakeup of the legal system which could lead to supermarkets and banks offering legal services moved forward yesterday with the start of a debate in the Scottish Parliament.

Justice Secretary Kenny MacAskill said that legislation, dubbed Tesco Law, will be introduced in parliament to establish alternative business structures in the legal profession as soon as possible.

The move follows pressure from the Office of Fair Trading (OFT) amid concerns that restrictions on working practices, including barring partnerships with non-legal firms, did not benefit customers.

Scottish lawyers last month backed the changes which have long been called for by the Scottish Consumer Council.

There have been worries about regulation of legal services however, with politicians raising fears during an earlier discussion last year.

Speaking in parliament yesterday Mr MacAskill told MSPs: "I am fully aware that members expressed concerns during the November debate that effective regulation was key to safeguarding consumers and the profession alike.

"This is not about Tesco law', as some have defined it. It is about allowing the profession to grow and compete, while maintaining quality of service to the public and the core values of the profession."

Both the Law Society of Scotland and the Faculty of Advocates have consulted their members and produced policy papers outlining their vision for the future.

Mr MacAskill stressed that there was still work required to "iron out the detail" of many of the issues to devise solutions for the Scottish market place. "Although there are differences of approach between the law society and the faculty, I am delighted that we have taken the first steps towards reform," he added.

He said that Scottish firms will continue to serve local communities, but he added: "Some firms can compete internationally and, I think, globally. The success of our accounting and financial services sector demonstrates this is possible. There is no reason why law cannot do likewise."

The OFT called for a review following a so-called super-complaint by consumer group Which? that the current set-up hinders market innovation.

At present, lawyers cannot go into partnership with non-lawyers or be employed by non-legal firms to give advice direct to the public. The changes could lead to external ownership or capital for law firms, and partnerships between solicitors and non solicitors.

Welcoming the move, Sarah O'Neill, legal officer of the Scottish Consumer Council, said: "We have been arguing for this for a long time. We think it is in the interests of the consumer in terms of increasing choice and reducing prices."

Richard Henderson, president of the Law Society of Scotland, was more cautious. He said: "It's a very complex issue and there has been a great deal of thought and discussion surrounding alternative business structures. It's clear from the profession's response that there is appetite for change."

Similar legislation is being introduced in England and Wales.

Tuesday, June 10, 2008

Law Society of Scotland's mismanagement of the legal profession has destroyed public confidence in lawyers

What is the world coming to when a lawyer asks why lawyers get such a bad name ?. Does it go something like lawyer lawyer on the wall who is the most crooked of us all ?

What a question to ask ! particularly on a day when a solicitor of 27 years in the profession (married, father of two) was found guilty of secretly filming women in a ladies bathroom next to his office. See here : Lawyer hid camera in ladies' loo

Of course, there are a few other reasons why lawyers might generally get a bad name ... ripping off thousands of clients a year perhaps ... the odd case of embezzlement too, threats of violence made by solicitors against clients who complain against their conduct, occasional 'attacks' on their own colleagues etc .. to name but a few reasons ....

Generally however, the reason lawyers get such a bad name, is because the legal profession itself is being run akin to the mafia, where the majority of complaints and scandals involving members of the legal profession are covered up by the Law Society of Scotland, and those who ruin clients generally get away with it.

Here are a few examples to shock you :

Law Society of Scotland covers up history of crooked lawyer as new President indicates little change on pro lawyer anti client policies

Peter Cherbi comments on top Scottish Lawyer revealed by the Sunday Mail newspaper to be at centre of 12 Negligence Claims by clients

Andrew Penman & Norman Howitt : Lawyer & accountant team up to ruin Cherbi executry estate

The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.

Law Society boss Mill lied to Swinney, Parliament as secret memos reveal policy of intervention & obstruction on claims, complaints.

I could go on & on, as there are so many examples to quote … but that will suffice for now …

So, to answer Nial McCluskey's thoughts of why solicitors are getting a bad name, he should look no further than Drumsheugh Gardens itself, the current base of the Law Society of Scotland.

Perhaps Mr McCluskey should also look at the profession's antagonistic attitude towards almost anyone, not just clients, or complaining clients, but solicitors too, who might want to dissent from Law Society policy from time to time .. even suggest reforms which might repair relations with the public & clients, rather than stick to the Douglas Mill mantra of 'we will fight them in [and out of] their homes' approach .. a public confidence vote loser if ever there was one.

Law Society Chief Executive Douglas Mill – now there was a man who knew exactly how to ruin clients claims & complaints against crooked lawyers !

If the legal profession were to take a different approach to clients & the public at large ... less of the 'let's rip them off' philosophy, and more of the 'look, this is what we can do for you, in such a space of time, at such a cost or risk' attitude .. then I'm sure the road to getting the public to view lawyers higher up the life chain than worms would be started.

There is a problem though .. in that recent attempts to ‘clean up’ the legal profession’s image, have been hijacked by the legal profession again, resulting in the following stories, which people should take note of :

Scottish Legal Complaints Commission - protecting the public or protecting the legal profession ?

Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

Calls for full disclosure on legal complaints commission members as Justice Department 'covers up' conflicts of interest in appointments scandal

Law Society staff secretly migrating into 'independent' complaints commission will ensure continuing problems of regulating Scottish lawyers

So, it seems ideas to clean up the legal profession’s image, and its many sins, cannot come solely from either politicians or the legal profession itself .. as they are doomed to certain failure.

Of course, if you ask me, and probably just about anyone who has been ruined by a lawyer .. if the legal profession and solicitors really want to get themselves noticed .. now, really want to do something good to start the ball rolling on repairing client-solicitor relations .. they need to tackle and repair their profession's sins of the past. As simple a step as that, and one which would certainly bring wide recognition from the public and the country .. doing a lot of good for all concerned too ...

Here's an idea for Niall McCluskey and his fellow members of the Law Society of Scotland & Faculty of Advocates to consider : The polluter pays - Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

Cleaning up the sins of the past .. now there is an honourable task for the legal profession to perform, but from my earlier article on the subject, you can see there are still a few within the Law Society who are dead against such moves, even to the point of engaging in political bullying & manipulation to stop the ideas dead.

If you really want to remove the misconceptions or ill conceived view of a poorly regulated, deeply corrupt legal profession .. tackle the root causes of those fairly well founded observations by clients .. and the legal profession will find that clearing up the damage it has done, is a certain vote winner with all concerned.

The Scotsman reports :

Why do lawyers get such a bad name?

Niall McCluskey feels that the hatred of legal professionals is, on the whole, ill-conceived, as the vast majority are honest and necessary

BLANCHE Knott wrote: "There are three reasons why lawyers are replacing rats as laboratory research animals: One is that they are plentiful, another is that lab assistants don't get so attached to them, and the third is that they will do things that you just can't get rats to do."

It is difficult to conceive of how she could have been more disparaging of the legal profession.

Many people have tried. Consider this quote from writer and comedian Alan Whitney Brown: "A group of white South Africans recently killed a black lawyer because he was black. That was wrong. They should have killed him because he was a lawyer."

These kinds of jokes abound, and are symptomatic of the disapproval society exhibits towards the humble lawyer.

That lawyers are so hated is strange, because they play such a vital role in our society. There is even a proverb that backs this up: "He who is his own lawyer has a fool for a client."

Lawyers assist the public in every conceivable way. In his novel Spring Snow Japanese author Yukio Mishima describes the law as: "A net with mesh so fine as to catch the most trivial incidents of daily life, yet its vast extension in time and space encompass even the eternal movements of the sun and stars." Law is essential and law is everywhere.

Lawyers are also perceived to have the power to improve their client's situation. This is summed up by comic Steven Wright who said: "I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five." So why does the profession receive such antagonism?

Firstly, lawyers become involved in people's lives at times of distress and are a significant and unwelcome expense.

Actress Claire Trevor once said: "What a holler would ensue if people had to pay the minister as much to marry them as they have to pay a lawyer to get them a divorce." This conveniently overlooks the fact that getting married is generally a terrific expense as well as being a very stressful experience.

In my view it is the association of the lawyer with the pain of divorce and not the expense that is the real issue.

Secondly, lawyers are perceived as parasitic and unnecessarily litigious. Scholar Robert Burton commented that lawyers were "so litigious and busy here on earth, that I think they will plead their clients' causes hereafter, some of them in hell".

There is also a German proverb that says: "When two dogs fight for a bone, and the third runs off with it, there's a lawyer among the dogs."

These are misconceived views. The majority of civil law cases settle, and in securing deals, lawyers are very conscientious about reducing client expense.

Thirdly, lawyers are perceived as dishonest. Screen actor Patrick Murray sneered: "A lawyer will do anything to win his case. Sometimes he will even tell the truth." American entertainer Will Rogers expanded on this theme: "I don't think you can make a lawyer honest by an act of legislature. You've got to work on his conscience. And his lack of conscience is what makes him a lawyer."

These are misleading observations. Because integrity is everything to a lawyer, as soon as a one is considered to be dishonest by colleagues or the court their career is in a downward spiral. I have met many persons of principle in the law who give their all for clients in every case they do. The lawyer's case is not helped by the legal system itself being perceived as a barrier to justice. Oliver Wendell Holmes is alleged to have said: "This is a court of law, young man, not a court of justice."

A writer, Alice Koller, went further: "It takes a long time to learn that a courtroom is the last place in the world for learning the truth."

These are depressing observations, because if a courtroom is not, at least, an attempt to find the truth, we may as well all pack up and go home.

That said, any lawyer with experience will have, no doubt, despaired at cases where matters of form have triumphed over substantive issues. Furthermore, lawyers are perceived to add to these barriers by muddying the waters. Henry David Thoreau certainly believed this: "The lawyer's truth is not truth, but consistency or a consistent expediency. "

Finally, the law is perceived as remote and incomprehensible. Will Rogers summed this up by saying: "The minute you read something that you can't understand, you can be almost sure that it was drawn up by a lawyer."

It is an axiom that ignorance of the law is no excuse, but how can that be justified in a legal landscape that spans European law, vast legislation, countless (usually obscure) statutory instruments and increasingly lengthy and complex case law. Most lawyers are ignorant of areas of law other than the one or two fields in which they specialise.

The question that arises is: how do lawyers regain the respect of the public? There are no easy answers. Much of the prejudice against lawyers is irrational and unjustified.

Lawyers are necessary when people are in crisis. One message that lawyers need to get across is that they are vocationally motivated to assist people in their hour of need. The profession also needs to educate the public about its high ethical standards, and ensure that the legal system itself is not perceived as unhelpful.

The law also needs to be accessible. Take, for example, employment tribunals. Individuals are often required to represent themselves against highly specialised lawyers. How can that be right when it is acknowledged that employment law is a fast-moving and complex area?

Despite all of the abuse, law is a great career. Like politicians and journalists, lawyers have learned to harden their skins against a barrage of insults. Ideally, lawyers would be better understood and appreciated. But that's not what legal practice is about. The lawyer's job is to take the brickbats for clients and to adhere to their duties to the court. The lawyer's prerogative is not to worry about the admiration of the public.

• Niall McCluskey is an advocate

Friday, June 06, 2008

Insurance monopoly over Scots professions & public services prevents public's access to justice

Why is it so difficult to sue a lawyer in Scotland many people ask ?

Well it is difficult to sue a lawyer because all lawyers are insured by the same insurance cartel – Marsh UK.

So if you can actually get a lawyer to take on your case against a lawyer who has say ... lost you a court case you had a good chance of winning .. or failed to give you good legal service which led to a substantial financial loss, even perhaps, the loss of your home ... the lawyer you hire to sue the lawyer who caused you the loss, will of course be insured by the same insurance cartel as the crooked lawyer.

Now, the fact that all lawyers are insured by the same insurance cartel might be argued by some as having nothing to do with the difficulty of getting a lawyer to sue a lawyer ... but we of course know different from the reality of things.

Actually, just say, your lawyer gives you poor legal service which leads to a substantial financial loss, and you hire another lawyer to sue them for negligence, which would entail obtaining the services of an Advocate, obtaining QC's opinion there was negligence present in your former legal agent's poor service to you, and eventually making it to the Court of Session .. you will find that your new lawyer, your Advocate, and the crooked lawyer who caused you the loss in the first place, will all benefit financially if your damages claim fails, or suffers a severe reduction in the settlement, if one is even agreed to.

In most cases involving client legal action against 'crooked' or negligent lawyers, your own legal agents and the lawyer who was negligent in handling your legal affairs, all receive financial bonuses if your claim for damages is either reduced, or thrown out.

On top of that, even your legal agents have a vested interest in your claim either being reduced or failing completely, because your success will increase their own annual payments into the insurance cartel which will be forced to pay out to you if you succeed. Good business, isn't it .. but not for you ... and of course, you are told nothing about this.

Whether you succeed or fail in your court action against a lawyer, you will then find your access to legal services blocked by the Law Society of Scotland, as you are put on a 'legal services blacklist' maintained by the legal profession naming people who have either complained against, or have taken legal action against lawyers.

Indeed, the Law Society of Scotland itself, has intervened many times directly in legal action against its own members, ensuring such cases fail at every turn. That interference from the profession's governing body has come from it's highest levels in many cases, where Chief Executives, past & present, have intervened to save crooked lawyers and the Law Society's insurance policy otherwise known as the Master Insurance Policy, from payout's to ruined clients.

Here are just a few examples of the Law Society of Scotland intervening in court actions against lawyers - to save their beloved, if corrupt, insurance cartel from paying out & admitting negligence ...

Douglas Mill steps into my own case against crooked lawyer Andrew Penman & the Law Society of Scotland’s complaint fiddling …

Scotsman 5 June 1998 Law Society accused of closing ranks as claimi fails

Former Law Society boss Kenneth Pritchard intervenes to halt a client’s legal representation in a case against crooked lawyers …

Policy is to protect both says Law Society - Kenneth Pritchard

Douglas Mill again intervenes in client claims & complaints against solicitors, tells a few lies about it at Parliament too …

The Herald 5 June 2006 - Would granny swear by the law society

Insidious isn't it ... the legal profession in Scotland have been doing this for years - making sure that anyone who tries to sue a lawyer gets nowhere ... and anyone who dares complain against a lawyer gets no access to justice after that .. and politicians, from all parties who have been aware of this for years, have sat back and generally done nothing.

Why have politicians done nothing ? Well, its usually because the Law Society of Scotland will 'call them in' for questioning, or 'a good talking to' as some politicians who helped me over the years had to face ... and with the occasional threat banded about by the Law Society to those who may dare help someone denied access to justice, even the politicians slide into anonymity - happily it seems in some instances ...

The problem is, as you can see in all of this, there is an insurance cartel controlling the situation, backed up by the legal profession's governing body itself - who claim not to intervene in cases of complaint or financial claims against solicitors .. but they do, and one such incident was famously exposed by our very own Cabinet Secretary for Finance, John Swinney, where the outgoing Law Society Chief Executive Douglas Mill just sat before the Justice 2 Committee and bizzarely lied through his teeth, attempting to deny the obvious content of his own memos, revealing a catalogue of intervention & interference in claims & complaints against solicitors in Scotland.

Law Society Chief Douglas Mill tells a few lies to John Swinney …

This problem however, is not limited to the legal profession.

Want to sue a Hospital or medial professional for negligence ? You will find the very same insurance cartel insure those same medical professionals you are trying to sue .. so your lawyers (if you can get someone to take on the case) will be insured by the same insurers who insure the medical professionals.

Want to sue an accountant or financial professional or financial institution ? You will find the very same insurance cartel insure those same accountants & financial professionals or institutions you are trying to sue .. so your lawyers (if you can get someone to take on the case) will be insured by the same insurers who insure accountants, financial professionals & financial institutions ...

Have a dispute with a local Government department, or even a department of the Scottish Government which has caused you financial loss through negligence, or breached your human rights or caused you a reason to sue them ? You will find the very same insurance cartel again, insure many of those workers and departments of local & national Government.

Have a dispute over a miscarriage of justice where the Crown Office failed to disclose material to your defence agents which would have seen you go free from court instead of being falsely convicted ? Well ... parts of the Crown Office, the Scottish Criminal Cases Review Commission and the Government Legal Service for Scotland (GLSS) are all dependent in some way on the same insurance cartel run by Marsh UK so .. a bit difficult to change a miscarriage of justice then …

Even a vet ? ... Taken your dog to the local vets to get a jag and came back with half a dog ? Well .. the odds are your vet is insured by the same insurance cartel for professional indemnity ... so if you want to recover the rest of your dog .. yes, its probably Marsh UK or one of the same insurance companies who will decide what happens to the other bits of your dog ...

Before you ask .. yes, many departments of the Scottish Government are still insured by Marsh UK, the same insurers of the Law Society of Scotland and many other professionals ... and you can find more about that in article I wrote about that earlier, where funnily enough, John Swinney, before he became Cabinet Secretary for Finance, asked questions on the previous Scottish Executive's dealings with Marsh UK.

My earlier report on the links between Marsh UK and the Scottish Executive, which have been sadly continued to this day : Corrupt Insurers of the Scottish legal profession linked to Scottish Executive

A very interesting monopoly don't you think ? Where one big insurance cartel, represented by among others, Marsh UK, control most of the professional indemnity insurance cover throughout public services, and the most popular or most required services from the private sector - in effect control the public's access to legal services & access to justice when the actions of those concerned may merit legal action from a member of the public.

Why haven't the OFT investigated this monopoly ?

Well, vested interests perhaps don't want this monopoly interested, particularly since departments of the OFT may just also be insured by a Marsh brokered deal too !

So ... trying to sue a lawyer or some other professional is next to impossible when dealing with one big insurance monopoly that even ex lawyers still pay into at a subsistence level ... to keep access to some of those nice fringe benefits of the likes of the Master Insurance Policy which they don't readily declare to the public if say for instance, they happen to be an ex lawyer politician ...

A solution to this ? Easy ....

Well, opening up the legal services market as well as opening up the indemnity insurance coverage market for the legal profession would just about do it .. but strong independent regulation of the legal profession would have to follow, and strict rules implemented on how solicitors deal with cases against other solicitors & legal representatives, such as negligence or other damages actions .. no more of the Marsh/Law Society claims fixing policies of the likes of Douglas Mill ... and believe me, we are talking about claims fixing here – where either the public have been prevented from getting access to legal services or their actual litigation has been purposely crippled against professionals insured by the same insurance cartels, involving the likes of Marsh UK.

Since the Cabinet Secretary for Finance John Swinney knows all about the woes of dealing with insurance cartels such as Marsh UK .. and since the Justice Secretary Kenny MacAskill has paid quite a bit of money into that very same insurance cartel via his required subscriptions as a member of the Law Society of Scotland .. there should be no difficulty in the Government realising the extent of their mistake in allowing this to continue in Scotland ...

Tuesday, June 03, 2008

The polluter pays - Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

The attempts by the Law Society of Scotland, and it's sponsored political allies to stall moves to heel the public's relationship with Scotland's failing justice system & legal profession continue unabated, and despite moves by campaign groups, consumer organisations, and even myself to move the process along, the vested interests of injustice seem to have the edge for now, but what is this thing they fear most ?

A simple plan to say "I'm sorry", and a move to bring redress, compensation, accountability and closure to the many cases of injustice of the past caused by the legal profession itself ...

With the present levels of public disrespect of the legal profession & dissatisfaction of the abysmal quality of legal services & restricted access to justice in Scotland, it is now time for matters to be put right, for someone to come forth and heel the deep divisions between lawyer & client, which are damaging the legal profession and the very foundations of justice itself in Scotland.

It is a very easy step to take, and none too complicated a one, where simply the sins of the past must be acknowledged by the legal profession, and put right.

Complaints and scandals, some decades old, need addressed in the here & now, they must be reconsidered, given redress, and given the very closure which should have followed at the time of incident, which the Law Society of Scotland and the legal profession consistently failed to do, and still fail to do.

To understand the present and the future, one must first understand the past, where complaints were and still are regulated by the Law Society of Scotland in a lawyer regulates lawyer approach.

For the last couple of decades , complaints against lawyers have soared from two to three thousand a year in the early 1990's to between five thousand to eight thousand a year after 1998. An almost minuscule percentage of those complaints ever see the client actually get back what was lost to the inaction, negligence, or incompetence of their solicitor.

Why is that ? It's because the legal profession have, like many other professions, had the privilege of regulating themselves, and in a lawyer regulates lawyer world, nothing will ever be done against a lawyer now, will it ...

Lawyers regulating lawyers, or "self regulation" as it is more commonly known .. has served the legal profession very well by keeping its dirty secrets locked away, and ensuring that clients have little or no rights of redress against their solicitors when things go wrong. The Law Society of Scotland's "Client Relations Office" under the leadership of Philip Yelland, functioned perfectly in whitewashing lawyer after lawyer even in the most serious complaints with overwhelming evidence of wrongdoing or even criminal activity ...

Philip Yelland - Director of Regulation and head of the Law Society's "Client Relations Office" mishandling client relations ...

Philip Yelland - Director of Regulation - Law Society of Scotland

The Law Society of Scotland, has spectacularly used self regulation over its decades of existence to ensure that very policy ... complain against your lawyer, and you get nowhere, and just for good measure, are denied access to justice & legal services in the future.

While of course, many lawyers who have faced serious client complaints over everything from embezzlement to theft of property, even identity theft on a grand scale, have generally gotten away with it while the Law Society has sat there as the profession's governing body ensuring the particular complaint gets binned and the client gets no redress for what happened.

Of course, throwing out complaint after complaint, many with genuine tales of severe wrongdoing, even negligence on the part of their solicitors, eventually builds up a great swathe of disgruntled clients, who genuinely have been wronged by solicitors, and further wronged by the legal profession's regulator who has done nothing for them.

Thus with the great swathe of disgruntled clients, and members of the public who have read of scandal after scandal involving crooked lawyers, the Legal Profession & Legal Aid (Scotland) Act 2007 was born to 'redress' the public perception of Scotland's legal profession, seen as dire, crooked, corrupt and generally a bad place to trust a lawyer do any kind of legal business for individuals or the corporate sector.

Such as things are with the LPLA Act, the legislators have failed entirely to restore any level of public confidence in the ability of anyone to impartially regulate lawyers and as things stand, it can only get worse, as the policies of the current although outgoing Law Society of Scotland Chief Executive Douglas Mill, continue to ensure stall after stall on both regulatory and access to justice reforms.

Douglas Mill - Law Society Chief Executive who would rather that lawyers regulate lawyers ... whitewashing preferred !

Douglas Mill at the Scottish Parliament

You can read more about Douglas Mill's exploits in his 11 year reign as Chief Executive at the Law Society of Scotland here : Douglas Mill - How to ruin the legal profession in eleven years

Even before the new Scottish Legal Complaints Commission takes its first shaky steps, revelations that Law Society staff who may have purposely mishandled tens of thousands of client complaints against lawyers in the past, have transferred over to the new commission, complete even with former "Lay Members" of the Law Society's "Complaints Committee" circuit, have given the public a taste of things to come - which is basically 'expect the same' treatment as before.

You can read more in my earlier report on the problems & scandals of the Scottish Legal Complaints Commission here : Scottish Legal Complaints Commission - protecting the public or protecting the legal profession ?

The Law Society are simply able to get away with this, as the Justice Department of the Scottish Government under Justice Secretary Kenny MacAskill, seems not to have a clue about how to effectively independently regulate lawyers, or even show a willingness to do so, with the Justice Secretary himself coming out with the occasional outburst of pro-lawyer anti-public statements ...

Kenny MacAskill - SNP owes Law Society a big debt .. but who voted who in last May ?

As things stand, only a madman would trust a lawyer who has 25 negligence complaints made by clients against them, but at present, the public are not allowed to know such statistics or information, so madmen are aplenty.

This happens only because clients don't know what they are getting into .. but clients would know what or who they were getting into if a solicitor's full regulatory disclosure was required for client-solicitor agreements, as I have reported on in the past.

You can read my earlier report on regulatory disclosure to clients here : Disclosing the regulatory history of lawyers in Scotland to help give choice to the consumer

However, there is a good 'first step' the legal profession, and the Government could take to heal the public's relationship with the legal profession. That simple step, is : Truth & Reconciliation.

Truth & Reconciliation doesn't have to mean that vast swathes of the legal profession end up jobless over the many clients they have ruined over the years, but it does mean that those clients and members of the public who had their finances or lives ruined all just because of a lawyer, must be fully and compassionately compensated for the terrible wrongs made upon them, which should never have occurred.

Accountability must too be apportioned if those wrongs are to be righted, and professionals must answer for their actions in some way or another, but the overwhelming aim of this move is to heal the public's mistrust of a legal profession which uses every twist & turn, every deceit, cuts every corner and fiddles as it goes, to get off the hook from a complaint or scandal which has ruined a life.

I have of course suggested a way that Truth & Reconciliation can progress on this issue, with the following petition to the Scottish Parliament :

Petition PE1033 - A proposal of Truth & Reconciliation for the public & legal profession to heal the client - solicitor relationship.

PE1033 Page 1PE1033 Page 2PE1033 Page 3

Regrettably, as I reported before, my parliamentary petition was silenced on the orders of the Law Society of Scotland itself, who sent one of their well known number to the Parliament, by way of letter ... Mr Michael Clancy.

Michael Clancy orders the closure of Petition PE1033 at the Scottish Parliament .. by letter rather than attendance ...

Law Society of Scotland PE1033 Page 1Law Society of Scotland PE1033 Page 2

Michael Clancy - The Law Society's 'Director of Law Reform', but it seems, no friend of Truth & Reconciliation in the public interest

Michael Clancy - Director of Law Reform - Law Society of Scotland

I am sorry there are those who feel the need to constantly step on the public and victims of their colleagues, to the point they must intervene at every single turn in life to ensure that reforms, which are clearly in the public interest, fail ... to protect their vested interests in the continuation of injustice ...

I am indeed sorry that Mr Clancy, again, typically enforces the Law Society's widely held belief that members of the public who dissent from the Law Society's policy on regulation must be hunted down in every way imaginable .. but it is nevertheless time that moves are put forward for a fairer deal of those who suffer from the legal profession's sins of the past.

It could achieve so much for Scotland, by doing not too much ... and it would be good for everyone to finally lay the sins of the past to rest, properly and compassionately to show Scotland the legal profession, and the legal system itself is capable of recognising and putting right the wrongs it has committed.

Now if that were to happen .. people might just show a little more much needed respect for both the legal profession and Scots Law ... and perhaps more importantly, clients will have a sense of security & trust to use Scots legal services again, which at present, cannot really be trusted to perform adequately.That has to be good for everyone !

How about it everyone ? A little Truth & Reconciliation to help Scots Justice and legal services get back on track by getting the polluter who caused the problem to put it right .. with a little leadership in this area shown by Government and political representatives ?

Surely not too much to ask or expect ... and I see the First Minister is getting into the Truth & Reconciliation mood himself as Scottish Law Reporter reports ... so things might just be looking up ? First Minister orders study of truth & reconciliation commission after law lords refuse abuse cases