Little mention of consumer protection for Scots as Law Society give evidence to Holyrood on Legal Services Bill reforms

Holyrood’s Justice Committee heard Law Society’s sagging performance. The Law Society of Scotland’s appearance in front of Holyrood’s Justice Committee to give evidence on the proposed reforms of the Legal Services Bill, currently being considered by the Scottish Parliament, seems to prove that despite the Law Society’s well deserved reputation for covering up complaints against its members, covering up frauds, embezzlement, theft, destruction (& the falsification of) documents, client files, mishandling of deceased’s wills, and even covering up criminal acts of its own members, officials from the governing body which ‘looks after’ Scotland’s solicitors are still willing to claim they should be left alone to regulate Scotland’s legal services market, sidelining any real improvements in consumer protection from its members.

The usual suspects from the Law Society attended the hearing, President Ian Smart, Chief Executive Lorna Jack (Douglas Mill’s replacement), the notorious Director of Law Reform, Michael Clancy (famed for killing off public petitions, calling in MSPs who are making a fuss about legal matters in Parliament, and someone from the Law Society with the bizarre title of law reform officer, Katie Hay. Missing was the Law Society’s Director of Regulation, Philip Yelland, which was a little strange, as one of the topics which received the most attention was, regulation.

The usual suspects caught on video - Law Society of Scotland’s evidence session on the Legal Services Bill :

Pt 1 Pt 2 Pt 3

Pt 4 Pt 5 Pt 6

Pt 7 Pt 8 Pt 9

The full report of the Law Society of Scotland’s appearance before the Justice Committee, giving evidence on the Legal Services Bill, can be viewed, here : Legal Services (Scotland) Bill: Stage 1 Justice Committee Tuesday 15 December 2009 You can also read my earlier coverage of the Legal Services Bill, here : Legal Services Bill - The story so far

The session was opened with a question from Bill Aitken, the Justice Committee Convener, who asked the acolytes from the Law Society : “Is the Law Society convinced that the bill is necessary and that the establishment of alternative business structures will benefit users of legal services in Scotland as well as practitioners?”

President Ian Smart spoke the most during the session, unfortunately. Responding, Ian Smart, the Law Society’s outgoing President said : “The short answer to your question is yes. The bill largely implements the policy that the Law Society adopted at our annual general meeting in May 2008. We support the proposed legislation for a number of reasons. The first is simply that the legal profession's structure is changing. The conventional view of a solicitor in Scotland is someone who is in a relatively small and modest partnership of three or four solicitors based in a county town, but the profession's current demographic is far from that. Three quarters of all solicitors are now employed in one capacity or another. Some are employed by the state—locally or nationally—and others by the private sector directly, but a good number of them are actually employed. The old partnership model is in steady decline. The Law Society already allows limited liability partnerships and, since 1990, incorporated practices, and we see the bill as the next stage.”

“It is clear that in some areas—more in relation to commercial users of legal services—there is demand for a one-stop shop, where more than one professional service is provided under one roof. Recent research by KPMG south of the border—albeit it involved the Scottish market—indicated that a substantial 75 per cent of commercial users of legal services welcomed that model. We looked into that model and, frankly, had some concerns about the ethical issues, but they have been worked through in our policy and in how the Government has implemented that policy through the bill. We see no reason why the bill cannot be the next stage in modernising the provision of legal services to the public.”

Mr Smart was then questioned on how the vote actually swung in favour of Alternative Business Structures by law firms & individual solicitors although he seemed to omit telling the Justice Committee the Law Society had campaigned hard against the vote within its ranks which, as we all now know was eventually pushed through by the larger legal firms and proxy votes.

Michael Clancy, well known for ‘calling in errant MSPs who rock the boat in the legal world, and killing off the occasional public petition seeking legal reforms. Michael Clancy then entered the debate, after being questioned by Justice Committee member Robert Brown MSP (LibDem) on what areas lawyers & non-lawyers could go into partnership with, and which particular areas of business should be reserved to lawyers only, such as “will writing” – which we have all noted that lawyers have done so well over the years (taking millions of pounds for themselves and getting away with it !)

Mr Clancy said : “They (reserved work for lawyers only) are the preparation of writs that relate to conveyancing, of documents in respect of confirmation of executors and of writs that relate to court process. Those reserved activities can be done only by solicitors and some other professionals; to do them for gain in any other circumstance is an offence. The clear answer to Robert Brown's earlier question is that the reserved areas will be unaffected by the bill and such activities will still have to be done by a solicitor in a licensed provider situation.”

Mr Clancy then went onto insist that any head of legal services in the reformed Legal Services Market must be a solicitor. He said : “It should be remembered that in a licensed provider firm—if such creatures come into being—the head of legal services will have to be a solicitor. One can envisage that the head of legal services will be responsible for ensuring compliance with the law and practice in relation to the preparation of the documents that I mentioned.”

Law Society’s current Chief Executive Lorna Jack – much less fun than Douglas Mill, less prone to animated outbursts too, sadly. The Law Society’s Chief Executive, Lorna Jack, who replaced the fallen Douglas Mill after his ‘secret memo binge against clients of ‘crooked lawyers’ which was exposed by the Scottish Government Cabinet Finance Chief John Swinney during a Justice Committee hearing, managed to get some words in about ‘protecting the legal profession’s independence’ after a question from Committee member James Kelly, initially put to Ian Smart.

Lorna Jack said in reply : “I think that we have already made known our view on this question. We see a need for the Lord President's role to be re-established beyond just simply being a consultee so that it involves an approval mechanism. We therefore think that the bill needs to be amended in that respect—we have made that point.”

Ms Jack continued : “In their evidence, others have talked about the need for a super-regulator, as exists in England and Wales. However, we feel that that is inappropriate for the Scottish market, given its size. Given that the bill provides for ministers to decide after taking independent advice, we do not think that there is a requirement for a super-regulator. If you supplement that with a role for the Lord President in approving regulators, you will ensure that the independence of the legal profession is protected. We would have concerns about there being an additional layer—a quango—and about the cost of that to consumers of legal service in Scotland and, potentially, to taxpayers. The basis of our argument about ensuring the independence of the legal profession is that, alongside ministers, the Lord President takes a role in approving those who get to regulate people who deliver legal service.”

Plenty there about protecting the legal profession and its members … not much, well .. actually nothing about protecting consumers & clients, which seems to be a carry on from the Douglas Mill days.

Michael Clancy had to step in again with further answers on points not emphasised enough by Ms Jack, and also raised the Law Society’s worries over Scottish Government Ministers being able to interfere in the regulator process. Mr Clancy said : “One of the regulatory objectives of the bill is to promote the independence of the legal profession. That applies not only to approved regulators but to the existing regulators under section 86. Furthermore, the Scottish ministers, who have a particular role to play in relation to the approval of regulators, are also captured by the regulatory objectives in section 4, "Ministerial oversight". The trouble is, of course, that ministers are to act in the way that is set out "only so far as practicable".

“That provision needs to be strengthened a bit. Lorna Jack adverted to the role of the Lord President. We certainly think that the Lord President's role should be enhanced from the position in the bill. In the original consultation, "Wider choice and better protection: a consultation paper on the regulation of legal services in Scotland", the Lord President was listed as being someone who had to agree to the authorisation or rescission of authorisation of an approved regulator, yet, in the bill, he turns out to be a "consultee" in that process. It would be appropriate for the Lord President to be reinstated to his position as someone who acts in concert with the Scottish ministers in that respect.”

“Where the bill deals with the specific role of the Scottish ministers regarding elements in the legal profession, there are concerns about how that will work. In my earlier discussion with Mr Brown, I referred to section 39, "Head of Legal Services", in which it says that the head of legal services has to be a solicitor. However, under section 39(9), the Scottish ministers can make regulations about that person's functions. It is inappropriate that the Scottish ministers should be able to tell a solicitor what to do.”

“Furthermore, section 35, which deals with ministers' step-in powers, includes the proposition whereby ministers could create an approved body that would be involved in the licensing of those who deliver legal services. That is also a difficult issue, because as the Scottish ministers could create an approved body, they would then have to approve that body, so there would be a kind of infinity loop of ministerial control. That, too, should be struck from the bill.”

Ian Smart managed another plug for the Law Society’s role in Scottish public life, although it sounds so tired now, we could really all do with a break from Drumsheugh Gardens ruling over the profession and clients best interests, which are never protected, despite the all present’s claims to the contrary.

Mr Smart said, in response to a question from Justice Committee member Stewart Maxwell MSP (SNP) on the subject of the Law Society’s dual role of representing solicitors & clients : “I have been on the council of the Law Society for 11 years, and during that time it has been debated periodically. On each occasion, we came to the conclusion that the current situation was the best available, as did the Parliament during its early days when it looked into the matter in an inquiry into the regulation of the legal profession in Scotland. We can easily point to flaws in the system from the point of view of the consumer's interest or that of the profession, but we have a compromise for a profession of 10,500 in a relatively small country, and there is a degree of clarity.”

“As Cathie Craigie said, people understand what the Law Society is and the role that it holds, and that understanding exists not just within the profession but among the general public. We have an identified role in Scottish public life. The danger in fragmenting that is that it will not be entirely clear who speaks for the legal profession, and if someone has a client complaint or a general complaint about the legal profession, it will not be clear to whom they will make the representations that they want to make.”

In terms of protecting consumer interests, the Law Society’s appearance before the Justice Committee gave absolutely no hope at all for any expected improvement of standards in a reformed Legal Services market if the bill currently under consideration is passed by the Scottish Parliament, and if anyone is in any doubt about the sub standard of legal services in Scotland, and the poor state of regulation, just watch the clips of the absolutely dismal evidence session from the Law Society, and some of the MSPs who seemed more interested in being seen than being seen to do or say something constructive.

Legal Complaints Chief Jane Irvine to appear at Perth Sheriff Court as Law Society investigates Tayside law firm Kippen Campbell

Scottish Legal Complaints Commission in the dock over complaints. PERTH SHERIFF COURT will shortly see a first for board members & officials of the Scottish Legal Complaints Commission, who are to appear as witnesses in a case involving Perth law firm Kippen Campbell, who are currently being investigated by the Law Society of Scotland over a complaint made by a client who was being represented by the law firm in a personal injury claim against Arriva Motor Retailing Ltd & Reg Vardy plc.

In the dock : Jane Irvine, Chair of the Scottish Legal Complaints Commission. Documents revealed today show the SLCC’s Chair, Jane Irvine and at least one SLCC investigator are to be cited as witnesses to justify their investigation into the Perth law firm after parts of the SLCC’s complaints investigation were filed at Perth Sheriff Court in connection with a legal action launched by Messrs Kippen Campbell against their former client, for alleged outstanding but disputed fees.

Fee note released during the SLCC’s investigation shows Kippen Campbell tried to charge for dealing with the Law Society over complaints. The Scottish Legal Complaints Commission began an investigation into complaints made late last year against Messrs Kippen Campbell by their client, a Mr William Gordon over issues related to their representation of Mr Gordon in the personal injury claim. The SLCC’s investigation was ‘complicated’ according to legal insiders, but it has now emerged in court documents seen by journalists that the law firm had, among its now disputed charges to Mr Gordon, charged a fee note to their client for a phone call to the Law Society of Scotland over the actual complaint made by Mr Gordon, an action which sources at the Law Society say is severely frowned upon by the regulatory body as solicitors are ‘not allowed to charge clients for dealing with complaints.

Leading figures from Scotland’s legal profession said this evening the move to cite senior officials of the regulatory body as witnesses in a courtroom ‘was unprecedented’ and would shine a much needed light on the poorly performing Scottish Legal Complaints Commission which apparently has yet to show one single success for ‘protecting consumers’ against rogue solicitors & law firms in Scotland.

A legal insider said this evening : “After a year of scandal at the SLCC I doubt very much any of them want to be dragged into a court to explain exactly what it is they do for people but many solicitors and consumers I’m sure will welcome the opportunity for the SLCC’s officials to be questioned under oath on their work.”

A spokesman for a consumer organisation said he was delighted the SLCC may be held to account for its work in an open court. He said : “The SLCC to my knowledge have no successes to show after over one year of operation and all the millions of pounds of money both from the public purse and the legal profession they have taken in.”

He continued : “It is about time someone was able to get a firm idea of exactly what the SLCC stands for, what it does and how it does it. Unfortunately however, it seems in this case the defender, Mr Gordon does not have legal representation and might not be able to ask the same level of technical questions that an experienced solicitor may ask. I would hope this imbalance is corrected immediately to respect the infirmed defender’s Article 6 right to a fair hearing in court.”

SLCC Media release on Perth Court case initially lied over knowledge that officials would be called to give evidence. When questioned about the court appearances, a spokeswoman for the Scottish Legal Complaints Commission’s Chair, Jane Irvine, initially denied knowledge of the case, saying : “The SLCC are unaware of the situation and therefore have no comment to make.” However, after further investigation and media enquiries, the SLCC backtracked on their initial claim to know nothing with Jane Irvine issuing the following statement : “The SLCC has a duty of confidentiality to all parties involved in all complaints and this is under Section 43 of the Legal Profession and Legal Aid (Scotland) Act 2007. In general terms, if an action is raised, either party can submit SLCC documents as evidence without being obliged to inform the SLCC. With regards to the citation of witnesses, the SLCC would not be aware what witnesses either side chose to cite unless a citation was issued to a member of staff or Member.”

Roseanna Cunningham MSP called in to help constituent’s complaint amid SLCC delays. It has also emerged that Perth MSP Roseanna Cunningham has been called in to help the constituent’s complaint with the Scottish Legal Complaints Commission, after it emerged the SLCC had not apparently fully understood what had actually happened to the client, causing concern the law complaints body had failed to address all the issues put before it, and in a strange twist, a trail of documents between the SLCC and Mr Gordon reveal the law complaints body was slow to involve Ms Cunningham in the loop on the progress of their investigation and findings, despite receiving letters from Ms Cunningham early on in the case.

Law Society are now investigating law firm over fee charges. The media attention to the story has now prompted a new development, with an SLCC investigator announcing : “I have also now heard from the Law Society and am pleased to confirm it has accepted the SLCC’s recommendation to look further at your complaint that Messrs Kippen Campbell charged a fee in relation to dealing with your complaint to the Law Society. I understand the Law Society will be in touch with you to obtain information and evidence.”

No one was available at Kippen Campbell for comment this evening.

My advice to anyone dealing with the Scottish Legal Complaints Commission .. if you feel your complaint has been poorly dealt with, and you are fighting a legal case based on issues the SLCC has considered, make sure like Mr Gordon, you cite the relevant SLCC personnel or even board members as witnesses to justify whatever they have said or done in terms of their investigation into your complaints against solicitors & law firms.

Holyrood’s Justice Committee hears of doubts & criticisms from Law Professor & Faculty of Advocates on Legal Services Bill reforms

Holyrood’s Justice Committee continues to hear evidence from legal profession luminaries. REGULATION OF THE LEGAL PROFESSION was further discussed at the Scottish Parliament’s hearings in to the Legal Services Bill where leading figures of the legal profession itself appeared to give evidence before the Justice Committee after the initial round of testimony from the consumer organisation Which? and the Office of Fair Trading, previously reported HERE.

Professor Alan Paterson declared he was against alternative business structures. Professor Paterson told the Justice Committee that in his position on the Council of the Law Society of Scotland, he had voted against alternative business structures along with others resistant to the so-called reforms of solicitors business practices, although the vote was eventually carried through, with large law firms making their views clear they wanted abs to succeed, and the Law Society ultimately had to support it.

Professor Paterson said : “I was on the council of the Law Society when it happened, but I cannot answer your question. Being on the council of the Law Society does not mean that one is privy to all the internal debates that go on at the upper reaches of the society. I suspect that the large law firms made their views very clear and that that had an influence, but I must also report to you—I do not think that this information is private—that the vote in the council on alternative business structures was very clear. Those of us who were in the minority were clearly in the minority and those who were in favour had a strong, solid majority. Those in favour were not individuals from large law firms; they were from high street firms, rural firms and so on. I was surprised by the degree of support that the ABSs attained. It must be the case that many of those individuals see opportunities in them.”

Bill Aitken MSP (Scottish Conservative), Justice Committee Convener. In response to a question from Bill Aitken, the Justice Committee’s Convener on the current ‘status quo’ of law firms & business, Professor Paterson replied that he felt the current rules already allowed some of the proposals contained in the Legal Services Bill. He said : “I am not sure that the status quo has been fully understood or developed. The status quo allows multidisciplinary practices, and there is no problem with multidisciplinary practices with different professionals working in the same firm, provided that one professional grouping—for legal services, it would be the lawyers—are in charge of the firm, are regulated to be in charge of the firm and have the responsibilities of running the firm and complying with the professional standards and the regulatory objectives. To me, that does not pose problems.”

Professor Paterson continued : “There can be disciplinary problems for the non-lawyer professionals in the practice, but that can be dealt with by holding the lawyer partners responsible for their non-lawyer colleagues. That is how it works and it is an effective mechanism. A multidisciplinary practice has all the advantages of a multidisciplinary partnership, except that the non-lawyer members cannot take a share of the profits. However, with a bit of imagination, ways of doing that, which are quite legal, can be found.”

Professor Alan Paterson’s evidence to the Justice Committee can be viewed at the following links from InjusticeTV :

Prof.Paterson Pt 1 Prof.Paterson Pt 2

Prof.Paterson Pt 3 Prof. Paterson Pt 4

Richard Keen, Dean of the Faculty of Advocates appeared before the Justice Committee. The final evidence session of the day saw Richard Keen QC, dean of the Faculty of Advocates, Iain Armstrong QC, vice-dean of the faculty, Tom Marshall, vice-president, civil, of the Society of Solicitor Advocates and Paul Motion, secretary of the society put in an appearance to be questioned by the Justice Committee on their views on the Legal Services Bill

Among the highlights of this particular session, the Dean of the Faculty of Advocates, Richard Keen, appeared to defeat his own arguments with regard to points raised by the SNP’s MSP Mr Stewart Maxwell on the involvement of non-lawyers in the regulation of advocates.

Stewart Maxwell MSP (SNP). Mr Maxwell questioned Mr Keen, saying : “I have no argument with the maintenance of the independence of the Scottish legal system or of those who practise within it. However I think that, in passing, you accepted that to move the regulation of that system to an independent body would not necessarily change that. Do you accept that involving non-lawyers in the regulation of advocates would not alter the independence of the legal profession? If not, what is the problem with non-lawyers being involved in the regulation of advocates ?”

Richard Keen replied, comparing regulation & independence of the courts to that of regulation of advocates and leaving the Committee members in no doubt he was against further regulation of the Faculty.

Mr Keen : “It is a question of how and why as much as anything else. If we want to maintain the independence of the courts—which is fundamental—and of the legal profession, there must be a dividing line between the courts and the executive. That is already recognised by the Judiciary and Courts (Scotland) Act 2008, which provides for the position of the courts and the Lord President.”

“If you are looking to future regulation, you can address various models of regulation. Scotland has maintained the model of regulation by the court over a long period. That model is not unique to Scotland—it is employed in many of the states of the United States and elsewhere in the Commonwealth—but it is effective in ensuring direct regulation.”

“Regulation by the court does not exclude the interest of the public or the consumer because, under section 86 of the bill, the Lord President and the Court of Session in general are bound to proceed in accordance with the regulatory objectives when looking to the regulation of the legal profession. Those objectives are set out in section 1. Professor Paterson asked whether the Lord President would consult and receive the opinions of certain parties, but he is bound to because only by doing so can he adhere to the regulatory objectives. He must know what is in the public interest.”

Stewart Maxwell pressed his point on the involvement on non lawyers in regulation of advocates once again, asking the Dean : “…Why would there be a problem if non-lawyers were to become involved in regulation? Would that, of itself, cause difficulties? I think that you accept the public perception that self-regulation is an issue. I am talking not only about lawyers: members of Parliament have come up against the problem in recent times. Do you accept the analogy ?”

Richard Keen replied, claiming the Faculty of Advocates are not self regulating : “We are not self-regulating. I like to think that we might be, but I know as a matter of fact that we are not. Not everything that I suggest to the Lord President is adhered to or agreed to; I can assure you of that.”

“There is also the issue of proportionality. The 17,000 barristers in England and Wales make for a formidable regulatory issue. In Scotland, we have a bar of 460 people. We could think up a complex model for Scotland such as the bar standards board that is in place in England. However, if we were to impose that on the relatively small bar in Scotland, we would be imposing an enormous overhead in relative terms on the delivery of legal services. At the end of the day, the customer—the consumer—pays the overheads.”

Bill Butler MSP (Labour). The important theme of regulation of advocates continued at the evidence session, with a question from Bill Butler, who asked : “Issues of professional misconduct by an advocate will continue to be referred to the faculty for investigation. What safeguards are required to ensure that the system of self-regulation is patently fair and equitable ?”

Richard Keen replied : “One has to take a step back from the point at which a matter is referred to the faculty. Any such complaint goes first to the Scottish Legal Complaints Commission—all complaints go to the commission, without exception. The commission then determines whether it is dealing with a service complaint or a conduct complaint. If it decides that it is a conduct complaint, it will refer the matter back to the faculty. If the faculty did not then deal with the matter, the commission would come back very quickly and ask what was going on.”

“Inevitably, if a conduct complaint is referred back from the commission, it is dealt with through the faculty's system, on which, as you know, there is lay representation. Thereafter, if a complainer is not satisfied, the case may be appealed or referred back to the commission. However, whether it be a service complaint or a conduct complaint, it always goes back to a lay commission. There was a time when judges might have dealt with complaints informally. However, that is what happened in the past; nowadays, if we receive complaints, they go to the commission.”

Bill Butler later questioned the Dean on when was the last time that a complaint was dealt with informally, which led to a reply from Mr Keen, stating : “When a judge is concerned about the conduct of an advocate, he may write me a letter. If that letter involves a complaint about the conduct of that advocate, I make the complaint to ensure that it goes to the commission.”

Also, the subject of consumers direct access to advocates was raised by Justice Committee member James Kelly MSP, who asked what would be wrong with such a system to be put in place.”

Richard Keen replied, claiming consumers already had direct access to advocates although we all know from anyone who has actually tried to secure direct contact with an advocate, this is an almost impossible task.

Mr Keen said : “There is a system of direct access to advocates, but it is generally limited to professionals who are seeking opinion work. A firm of accountants or surveyors can instruct an advocate directly when it wants an opinion. For example, we are currently dealing with the Chartered Institute of Patent Attorneys. Other bodies of that ilk have rights of direct access to advocates.”

“Why should the general public not have direct access to advocates? That simply could not happen under the existing model. Let us take, for example, a criminal case. If someone has been charged on indictment, they go to a solicitor. If, in due course, they need to be represented in court, that solicitor may instruct counsel. If, however, the person who is charged with an offence goes directly to counsel, counsel is not equipped to make the inquiries and undertake the preparation that is always essential in such a case. Counsel is not in a position to go out and take statements or liaise with police officers—that is not our business model. We simply cannot function in that way; we are a referral bar.”

The Dean ended by claiming the Faculty does not prohibit consumer’s direct access to advocates, although no statistics were offered up to support the position : “However, we do not prohibit direct access. In circumstances in which opinion work or similar work is sought, we will accept direct access. It goes further than that—for example, we have recently considered changes in our regulations to allow direct access for things such as employment tribunal work.”

One onlooker commented the Dean’s claims with regards to direct access were “without foundation and very far from reality”

Coverage of the Faculty of Advocates & Society of Solicitor Advocates evidence to the Justice Committee can be viewed on LawyerTV , here :

FoA & SSA Part 1 FoA & SSA Part 2

FoA & SSA Part 3 FoA & SSA Part 4

The official report of the Justice Committee’s meeting can be read here : Legal Services (Scotland) Bill: Stage 1

More coverage of the evidence on the Legal Services Bill will be reported in the next few days, including the Law Society of Scotland’s appearance before the Justice Committee earlier this week.

OFT & Which? call for independent regulation of lawyers as Justice Committee hears evidence on Legal Services Bill

Holyrood’s Justice Committee heard regulation must be taken away from the Law Society of Scotland. THE OFFICE OF FAIR TRADING has told the Scottish Parliament’s Justice Committee the Law Society of Scotland should be stripped of its regulation role, to give better consumer protection in any reformed legal services market, after constant revelations in the media and in consumer groups investigations & public surveys of the legal profession’s constant habit of covering up complaints against the rising numbers of ‘crooked lawyers’ working in Scotland’s many law firms.

Office of Fair Trading & Which? call for independent regulation of legal services in Scotland.

The OFT, and Which? both reiterated their points that a separation of the Law Society’s regulatory role from the Society’s main function, which is to represent its member solicitors & law firms .. usually against the interests of clients and consumers, when a complaint arises challenging the conduct or service of a solicitor or law firm.

Sue Aspinal, team leader of the professions team at the OFT, said in reply to a question from Cathy Craigie MSP on the separation of the Law Society’s regulatory role : “From the evidence, we know that we are talking about public perception. If a body were to try to further the interests of both its membership and the public, tensions—even conflict—will arise. The best way in which to avoid conflict is to have a separation of the two roles.”

Julia Clarke, of consumer group Which? commented further on the issue, saying : “Which? believes that there should be a separation between the two functions. The system does not work satisfactorily, so it cannot be said that it is perfect. At the very least, particularly in terms of public perception, separating the two functions would be an improvement.”

Ms Clarke continued : “Obviously, the proposal for a lay majority and a lay chair is good news. That is progress, but our view is that there should be complete separation between the two functions. If that cannot be done, the proposed committee to advise the Government on future regulation is a way forward. It is important that its membership should be drawn from beyond the legal profession. It should certainly have a lay majority and a lay chair. It should be a statutory body because it is proposed that the Government will regulate the regulators. That is not ideal but, if it is to happen, it is important that we have a strong advisory body.”

After an additional question from Cathy Craigie MSP on whether consumers might benefit from more than one regulator in Scotland’s reformed legal services market, Sue Aspinall of the OFT replied : “Competition should normally have benefits for consumers unless there is a particular market in which it is best to have only one provider. The OFT's position is that approved regulators have an important role to perform in the way that they license and we hope that, if there is demand for a choice of approved regulator, that will develop the number of licensed legal services providers coming through, which will mean that there will be more such firms for consumers to choose from.”

Nigel Don MSP ‘ill informed’ over lack of client’s access to advocates. Justice Committee member Nigel Don MSP, also Parliamentary liaison to the Justice Secretary Kenny MacAskill, entered the debate on the question of the Faculty of Advocates being left out of legal services reform, apparently putting forward Mr MacAskill’s own view that regulation of legal services by judges of the High Court, rather than consumer watchdogs, would be a preferable model. Mr Don also went onto make an outlandish, unsubstantiated claim that “0.5% of the population were not able to work through a solicitor to get the right advocate …”

Clearly Mr Don hasn’t spent much time with actual members of the public trying to pursue cases through the courts which require the services of an advocate. If he had, he would know his fantastic claim is well out ….

Nigel Don enquired : “I am told that 460 advocates practise in Scotland. That is a fairly small bunch of professional, highly qualified people. Do we really need a complicated structure for the regulation of 460 people who are regulated by the court anyway ?”

Julia Clarke, of Which"? replied : “The consumer principles are the same wherever people live in the UK. People are entitled to the same level of transparency and the same protections in the industry with which they are dealing. If services do not modernise, the consumer has no way of demanding their modernisation—they are just presented with what is available. If there is no opportunity for choice, the consumer cannot make their needs felt and must keep taking whatever is delivered. Unfortunately, that is the case at the moment.”

Nigel Don further added : “Would you not prefer to have a service—especially a legal one—that is regulated by the judges of the High Court rather than by some consumer watchdog? If I want lawyers, whose business is speaking to a court, to act professionally in my interests and the interests of justice, would I not much prefer them to be guided and regulated by the Lord President rather than by another organisation ?”

Julia Clarke of Which? replied : “I cannot see what is wrong with independent regulation that is properly regulated and comes with all the necessary safeguards. I think that everyone was keen that that should be in place and, by and large, that is what is proposed in the bill.”

Even some solicitors think Law Society is now ‘too crooked itself’ to be trusted with regulatory role. A solicitor described Mr Don’s comments this morning as ‘ill informed’, saying : “Mr Don should come in and ask some clients if he can follow their cases all the way to court. If he did he would realise that obtaining the services of an advocate is not like turning on a tap to get water.”

He went on : “We as a profession can fool ourselves as much as we want about who trusts the Law Society to regulate solicitors, but the fact is the public do not trust self regulation, nor do they have a reason to trust self regulation, certainly going by the numerous bad examples set by the Law Society. Putting the Lord President in charge, as Mr Don suggests, would probably only make matters worse from the public’s perspective, given the fact that even the Lord President was once himself, a lawyer.”

You can read the full report of the Justice Committee meeting and the evidence from the OFT & Which?, here : Legal Servies Bill evidence, Justice Committee Official Report 8 December 2009 and watch the video coverage on the Parliament’s website HERE, or at the following links from InjusticeTV here :

Pt 1 Pt 2 Pt 3

Pt 4 Pt 5 Pt 6

Pt 7

Over the next few days, more will be reported from the Justice Committee hearings on the Legal Services Bill, including coverage of Professor Alan Paterson’s evidence, and sessions with the Law Society of Scotland, Faculty of Advocates, and other sections of the legal profession who attended Parliament.

Consumer fears as Law Society pleads to Holyrood Justice Committee for more ‘closed shop regulation’ of legal services in Scotland

Scottish Parliament will hear pleas from lawyer to continue regulating themselves. THE JUSTICE COMMITTEE of the Scottish Parliament will tomorrow, Tuesday 15th December, hear pleas from the Law Society of Scotland to be allowed to continue in its role as self regulator of the lion’s share of legal services in Scotland, despite the fact that for well over three decades now, self regulation of Scotland’s 10,000 solicitors by the Law Society of Scotland has led to the lowest standards of legal services in the western world, and the highest number of complaints made against its member solicitors, many involving serious issues of fraud, dishonesty, and almost endemic negligence from many solicitors & legal firms who promote themselves as some of the ‘most respected’ in Scotland's legal services marketplace.

The Legal Services Bill, currently being considered by the Scottish Parliament’s Justice Committee, is an attempt to widen public access to justice in Scotland, and also allow legal firms to draw in outside investment, hence the term ‘alternative business structures’, used by the legal profession to placate its desire for more money, but very much less by way of any improvements for consumer protections, which of courses the Law Society of Scotland wishes to keep control of for itself.

You can read my previous reports on the Legal Services Bill, once called the ‘Legal Profession Bill’ by the Scottish Government but changed after some smart-eyed civil servant thought it sounded too ‘pro-the-lawyers’, here : Legal Services Bill for Scotland - an attempt at access to justice, or simply to give lawyers more control over justice ?

Law Society President, Ian Smart claims the Law Society must maintain regulation to protect its members. The Law Society of Scotland’s current President Ian Smart said today in a relatively unremarkable Press Release that : “The bill is set to reform how legal services can be delivered in Scotland and help provide the means for lawyers to modernise their businesses to meet the needs of their clients. Overall the Society is in agreement with the aims of the bill but we have identified key areas of concern and recommended a number of amendments.”

Mr Smart stated the Law Society’s priorities are :

* A robust regulatory system is put in place to provide strong consumer protections and ensure that high standards are maintained among those delivering legal services. (something the Law Society has never managed since 1947)

* Independence of the legal profession from government must be maintained. (Surely this is in no doubt.)

* A level playing field is required for those in the legal services market, whether as a legal services provider or as a regulator. (level playing fields also have to include consumers, of which the Law Society seems to have forgotten about once again)

* Access to justice must not be hindered. (rich, coming from Mr Smart, given the fact the Law Society of Scotland is the greatest hindrance of the public’s access to justice)

Former Law Society Chief Douglas Mill’s policy to protect consumers was to wipe out their claims and write secret memos against their complaints, featured in a Herald newspaper expose. What consumer protections is Mr Smart actually talking about ? There is no such thing as consumer protection against ‘crooked lawyers’ in Scotland, where up to 5,000 plus complaints are made each year against Scotland’s less than 10,000 solicitors (in one year the figure was as high as 8,000 complaints) and many complaints involving allegations of theft, embezzlement, fraud, dishonesty and negligence, never see full compensation paid to clients who have to engage the Law Society for years in letters while the solicitor who ripped them off gets away with a Law Society slap on the wrist. You can read a previous report I did on the ‘consumer protections’ currently on offer by the Legal Services Bill, here : Legal Services Bill promises nightmare complaints scenario for consumers as Law Society campaigns to control regulation over ‘Tesco Law’ reform

Ex Law Society Chief Douglas Mill’s grilling by an earlier Justice Committee on consumer protections & poor Law Society regulation left Scots in no doubt the legal profession is rotten to the core.

Ian Smart just couldn’t resist pressing on with the Law Society’s tired line on regulation and how to maintain control over it, going onto comment : “Maintaining regulation, representation and professional support within one organisation means the Society can be an effective membership organisation for Scotland's 10,000 solicitors, as it acts for a group that is effectively regulated.”

He continued : “We also have to bear in mind that Scotland is a distinct legal jurisdiction with a relatively small and scattered population. This, among the many other considerations, must be taken into account to avoid any unnecessary bureaucratic or financial burden. We look forward to engaging with the profession, Scottish Government, the Parliament and other interested groups in the future development of legal services in Scotland.”

Scotland is a distinct legal jurisdiction only because you keep it that way, Mr Smart. Scotland is a distinct legal jurisdiction which does not allow its people unhindered access to justice and access to the courts, simply because the Law Society of Scotland forces anyone who requires access to justice to use the services of an expensive solicitor who is also a member of the Law Society of Scotland.

How much of an unnecessary bureaucratic or financial burden would it be to allow Scots a voice in the justice system instead of going through one of your colleagues, Mr Smart ? Surely it would be worth it, considering the huge fee notes, many of which are fraudulent these days, that are being handed out by law firms to clients just to make up the profits in these dire financial times …

A spokesman for one of Scotland’s consumer organisations today expressed dismay at the Law Society’s attitude towards the Legal Services Bill, claiming the Law Society ‘was seeking to control the entire debate on access to justice and maintain control over regulation’.

He said : “We have heard all this before from the Law Society when it comes to making any changes to consumer access to legal services in Scotland, however small they may be. The Law Society comes out claiming the house will fall down if it is not allowed to regulate the legal services market and enforce some kind of fantastic standard of service provided by legal practitioners which frankly does not exist if the views of consumers are to be taken into account.”

He continued : “However, I detect a hint of worry in the Law Society’s recent abrupt turn on their attitude towards the debate on alternative business structures, as they clearly feel they are in a much weakened position now that campaigners and consumer groups are consistently tackling the issue of Scotland’s notoriously poor legal services market and the high levels of client complaints.”

“It is to be hoped the Justice Committee will see through the Law Society’s obfuscation of the fact that legal services in Scotland have always been poor, and will always be poor as long as the Law Society has any hand in regulatory matters.”

As an experienced reporter on issues relating to the Law Society of Scotland and regulation of complaints, it is very clear the interests of consumers will only be served by a complete overhaul of regulation of legal services in Scotland, with consumer protection made the first priority, rather than the profession being allowed yet again to maintain the closed shop regulation system which as we have repeatedly seen over the decades, operates a hostile policy towards complaints & disputes between consumers & solicitors.

You can read the Law Society of Scotland’s submission to the Scottish Parliament’s Justice Committee on the Legal Services Bill, here : Law Society of Scotland evidence on Legal Services Bill (pdf) and you will be able to watch the live stream of evidence given by the Law Society representatives at the Justice Committee, tomorrow, by selecting the Justice Committee live video stream on the main page, here : Holyrood TV

Legal Services Bill submissions published by Scottish Parliament – add yours before 18th December 2009 to help protect Scots access to justice

Holyrood’s Justice Committee publishes submissions on Legal Services Bill. REFORM OF LEGAL SERVICES in Scotland is now firmly on the cards with alternative business structures for law firms, expansion of rights of audience, representation and wider access to justice for Scotland’s consumers being considered by the Justice Committee of the Scottish Parliament.

However, while the legal profession and some consumer organisations such as Which?, Consumer Focus Scotland, and the Government agencies such as the Office of Fair Trading have given their replies, actual consumers of legal services should consider writing into the Parliament with their own experiences of legal services in Scotland.

I have reported previously on the Legal Services Bill and its intentions here : Legal Services Bill for Scotland

So far, a total of nineteen received submissions have been published by the Scottish Parliament’s Justice Committee, which everyone who uses legal services in Scotland would do well to read and add their own letter or submission to the Justice Committee BEFORE 18th December 2009 at the latest. Experiences from actual consumers who have used legal services in Scotland, whether good or bad, are vital to help the debate and ensure the new legislation will help consumers rather than protect old monopolies held by the legal profession over individual’s access to justice in Scotland.

For specific information on the Bill, please contact Andrew Proudfoot, Assistant Clerk to the Committee, on 0131 348 5047 or email lsbill@scottish.parliament.uk or justice.committee@scottish.parliament.uk with your written submission.

The submissions can be downloaded on the Parliament’s website in adobe acrobat format, at the following links :

Legal Services (Scotland) Bill - written submissions received

LS1 Scottish Police Federation (10KB pdf)

LS2 Faculty of Advocates (25KB pdf)

LS3 Gilbert M. Anderson, Solicitor (42KB pdf)

LS4 Which? (20KB pdf)

LS5 Thompsons Solicitors (37KB pdf)

LS6 Institute of Chartered Accountants of Scotland (20KB pdf)

LS7 Scottish Law Agents Society (54KB pdf)

LS8 Walter Semple and Catriona Walker, Solicitors (48KB pdf)

LS9 Unite Trade Union Scottish Region (30KB pdf)

LS10 Chartered Institute of Patent Attorneys (21KB pdf)

LS11 Citizens Advice Scotland (33KB pdf)

LS12 Office of Fair Trading (60KB pdf)

LS13 Professor Alan Paterson (41KB pdf)

LS14 Scottish Legal Complaints Commission (17KB pdf)

LS15 Consumer Focus Scotland (57KB pdf)

LS16 WS Society (73KB pdf)

LS17 Law Society of Scotland (80KB pdf)

LS18 Scottish Legal Aid Board (22KB pdf)

LS19 Society of Solicitor Advocates (28KB pdf)

Court grants second 'back seat' McKenzie Friend in case against Edinburgh law firm Tods Murray as Lord President’s claims to Parliament questioned

Lord Woolman grants second use of a McKenzie Friend in Scotland. AFTER FORTY YEARS of McKenzie Friends being kept out of reach of Scottish courts, a policy which was quietly broken by Lord Woolman's mid November ruling in Wilson v North Lanarkshire Council & Simpson & Marwick granting Scotland's first use of a McKenzie Friend, the same judge, Lord Woolman has now allowed a second use of a McKenzie Friend in a legal action involving a party litigant, Mr Andrew McNamara against the Edinburgh Law firm Tods Murray LLP, who were previously linked to the former Scottish Conservative Party leader David McLetchie MSP.

Mr McLetchie as readers will remember was forced to resign from his position as Scottish Conservative leader on 31 October 2005 , after an expenses scandal over taxi fare claims for journeys which apparently involved trips to his former law firm. Mr McLetchie resigned from Tods Murray in early 2005 before the expenses scandal made the headlines.

A spokeswoman for the Scottish Courts Service today confirmed that a McKenzie Friend was allowed by Lord Woolman in the long running Court of Session action of [Pursuers] TODS MURRAY v [Defenders] (1) ARAKIN LIMITED; and (2) Mr Andrew McNamara on 1st December 2009. The McKenzie Friend however was required to sit behind the party litigant, Mr McNamara.

Reporting from the court, a legal insider who was present at last week's hearing confirmed the following :

“The Lord Ordinary, Lord Woolman, heard the "Motion" moved by A. McNamara, which was opposed by Senior Counsel (Ferguson), that A. McNamara be allowed McKenzie friend assistance. A. McNamara sought the assistance of a McKenzie Friend on medical grounds due to having been in hospital for four days, this confirmed by a doctor's letter.”

Lord Hamilton said to Holyrood he wants McKenzie Friends to sit behind court users in Scotland. “However, lawyers acting for Tods Murray challenged the litigant's request for a McKenzie Friend, waving a copy of the Lord President's letter to the Scottish Parliament, which was claimed to state the present law with regards to McKenzie Friends in Scotland that should dictate that a McKenzie Friend could only sit behind the litigant, take notes, assist with papers and quietly give advice.”

“Lord Woolman, after discussing the challenge by counsel acting for the pursuers, Tods Murray and referring to Lord Gill's "Civil Courts Review" with specific reference to the conflicted opinions of the Court (e.g. Lord Glennie in Kenniel v Kenniel), went on to allow the use of a second McKenzie Friend in Scottish Courts in recent weeks, albeit requiring the McKenzie Friend to sit behind the party litigant.”

A solicitor, commenting on the case this morning noted the party litigant was opposed by Senior and Junior Counsel acting for Tods Murray, who also had at least two additional solicitors with them in court.

He said "I think anyone who has to sit as a party litigant in open court, faced down by two sets of opposing counsel and supporting solicitors would by any reasonable person be viewed as suffering an imbalance in their representation. I would have to question why in the circumstances reported, the McKenzie Friend was not allowed to sit beside the litigant who requested and clearly required assistance."

Lord Hamilton‘s misinformed letter to Holyrood. The Lord President’s letter to Holyrood’s Petitions Committee, used by opposing counsel in the Tods Murray action to challenge a McKenzie Friend request, alleged that McKenzie Friend sat behind litigants, citing paragraphs from Lord Gill’s Civil Courts Review. However, Lord Hamilton failed to back up his claims with written evidence or case references in his letter, which stated : "As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting he hind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42).

The only problem with Lord Hamilton’s reference to the Civil Courts Review, Chapter 11, para 42 is that no such reference to McKenzie Friends sitting behind litigants actually exists anywhere in the report.

You can read more about Lord Hamilton’s letter to the Petitions Committee over McKenzie Friends in my earlier report, here : Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

Lord Hamilton referred to Lord Gill's review, adding references which do not exist. A senior official from one of Scotland's consumer organisations said this morning : "I am troubled by the report from the court that counsel for the pursuers opposed the party litigant's request for a McKenzie Friend apparently going on to argue that if a McKenzie Friend were to be granted it must be under the terms of Lord Hamilton's letter to the Scottish Parliament which states that McKenzie Friends must sit behind the party litigant they are there to assist"."I feel I must point out to your readers that despite Lord Hamilton's claims in his letter to the Parliament that Lord Gill's Civil Justice Review referred to the practice of McKenzie Friends "sitting behind" party litigants, citing Chapter 11, Paragraph 42 of the Civil Courts Review, there is for the avoidance of any doubt, no mention anywhere in Lord Gill's report of a McKenzie Friend sitting behind a party litigant."

Lord Gill did not say that McKenzie Friends should sit behind litigants in Scottish Courts.“I am concerned with this latest decision, the Scottish Courts may be following a clear falsehood on the part of the Lord President, and are giving Scots back seat McKenzie Friends instead of a fully fledged McKenzie Friend of the kind who have worked successfully in England & Wales for nearly forty years. Clearly this ‘sitting behind’ arrangement, which disadvantages Scots consumers & court users cannot be sustained in the face of Lord Gill’s actual recommendations.”

A Scottish Government insider today said he was concerned that Lord Hamilton's ill judged references to McKenzie Friends "sitting behind" party litigants might have established a false pattern for the Scottish Courts to follow, giving further grounds to campaigners, including myself, who claim that Scots party litigants are denied a fair hearing when their McKenzie Friend is forced to sit behind the litigant, while opposing counsel have no such restrictions placed on their support staff and accompanying solicitors.

He said : "Clearly the Lord President has erred in his letter to the Petitions Committee, and as such this error has given rise to a number of questionable decisions in the Scottish Courts over where a McKenzie Friend should actually sit."

He went on : "Given this second case, where again a McKenzie Friend was required to sit behind a party litigant, there is a clear & present need for formal guidance to be issued to all courts on the consideration of McKenzie Friend requests, otherwise the feeling will remain that Scots are being denied the same access to justice that unrepresented court users in the rest of the UK are entitled to receive in terms of courtroom assistance."

McKenzie Friends in England & Wales, are treated as a Human Rights issue, as opposed to the current practice in Scotland, where a litigant’s request for a McKenzie Friend is handled at the discretion of individual courts. Lord Hamilton and the Scots legal establishment would rather that McKenzie Friends requests continue to be handled on a case by case, discretionary basis, but such a system clearly impedes the right of an individual’s access to justice as we have recently witnessed where the court wants McKenzie Friends sitting anywhere but next to the person they are there to assist.

Readers can compare the Scots system of discretionary, back seat McKenzie Friends, which currently lacks any publicly available guidance, versus the system in operation in England & Wales, where the full guidance from the Lord President of the Family Division on the use of McKenzie Friends in the English courts can be downloaded here : President's Guidance: McKenzie Friends

As far as I can tell from my own research, McKenzie Friends sitting behind party litigants just doesn't happen, anywhere, so the Lord President has some explaining to do on why he chose to inform the Parliament that McKenzie Friends sit behind is the case when it is most certainly not the case in jurisdictions where McKenzie Friends are allowed. Further, since the Lord President’s letter to Parliament has been used by counsel opposing court users McKenzie Friends requests, a clear statement must now be made by the Lord President on his reasons as to why in Scotland, we must make do with back seat McKenzie Friends, rather than the front seat variety enjoyed by the rest of the world ….

The Lord President’s office has so far refused to reply to enquiries on the content of his letter to Holyrood’s Petitions Committee amid mounting claims he misinformed Parliament over the application & use of McKenzie Friends in Scotland’s courts ….