Law Society’s latest constitution consultation is viewed by solicitors & clients as attempt to consolidate power at the top. SCOTS CONSUMERS OF LEGAL SERVICES are again effectively being thrown to the sharks in the latest consultation exercise organised by the Law Society of Scotland, billed as an attempt to reform the solicitors governing body’s constitution, but more darkly revealed to be little more than the latest attempt to shore up the Law Society’s powerful position as self regulator of Scotland’s 10,000 plus solicitors, along with its ‘dual role’, mandated in the Solicitors (Scotland) Act 1980 of representing the client’s best interests – the latter duty of which the Law Society is infamous for failing to carry out in any shape or form.
The Law Society launched the consultation earlier in June, asking its members for their views on a revised constitution and its standing orders. The Law Society claimed its constitution “is being updated as part of a review and modernisation of the Society’s procedures to enable the Society to better represent and support its members”. However, and perhaps more dangerous from the consumers point of view is that the changes proposed by the Law Society, will, in its own words, “allow the Society to adapt to changing conditions in the future, without having to resort to further legislative change” – thus escaping any legislative scrutiny in the elected Scottish Parliament of changes which many expect will be counter to the consumers best interests.
The Law Society dressed up its proposed changes to the constitution as “measures which will also ensure that the Society is well placed to become a regulator of those wishing to adopt alternative business structures as defined by the Legal Services (Scotland) Bill once passed”. Clearly the Law Society wishes to regulate just about every aspect of Scots legal life … much to the danger of fee paying clients, who, once the Legal Services (Scotland) Bill is passed, will continue to have as little protection against poor legal services in the future, as is currently, and historically been the case in Scotland.
Is your lawyer crooked ? Chances are the answer could be “Yes” but you’d never know it ! As far as the Law Society representing the client’s best interests, anyone who has been put in the position of being forced to make a complaint about their solicitor to the Law Society of Scotland, or the hapless Scottish Legal Complaints Commission will probably by now, realise the futility of their position, where from the outset, their complaint, no matter its seriousness, had been treated by the Law Society with disdain, ending in up in a grand paper chase, sometimes lasting years, where often the solicitor being complained against escaped any punishment for their crimes or actions against clients.
This great service, of protecting its member solicitors from thousands of client complaints each year, is what the Law Society regards as its duty under Section 1 of the Solicitors (Scotland) Act 1980 where the Law Society of Scotland is mandated to undertake the promotion of (a) The interests of the solicitors’ profession in Scotland ; and (b) The interests of the public in relation to that profession. Clearly as far as the Law Society of Scotland are concerned, the interests of the solicitors’ profession have long come before the interests of the public, a charge backed up by earlier articles I have written on the subject, one of which readers may be interested in, here : Toxic levels of complaints, poor standards of service & soaring fraud by solicitors makes Law Society of Scotland 'World's worst regulator'
The Law Society of Scotland did not represent the interests of ‘crooked lawyer’ John G’O’Donnell’s clients, considering Mr O’Donnell, and thousands like him are still working as solicitors. However, as the years have gone by, many consumers, consumer protection organisations, critics and even some sections of the legal profession have questioned & campaigned against the Law Society’s dual role of representing solicitors and clients, a dual role viewed by many as posing an inherent conflict of interest, where as countless media reports over the decades have documented, the interests of solicitors have always overshadowed any regards for client protection from the likes of the John O'Donnell's of the legal world, of which there are a growing number.
The Law Society, seeing the flow of these reports, and our changing times where the word ‘regulation’ is now mostly viewed as another word for ‘cover up’ is simply trying to consolidate its grip on power with this latest ‘consultation’, ensuring it continues to be in charge of regulation and representing the clients ‘best interests’, because the Society and the profession well know, if it loses one role to the other, its grip over Scotland’s legal services market and the public’s access to justice is doomed.
However, the consultation has drawn some criticism from some parts of the legal profession itself, with the Glasgow Bar Association highlighting the conflict of interest in Section 1 of the Solicitors (Scotland) Act 1980 where the Law Society represents both clients & solicitors. It should be borne in mind however, the criticism from the Glasgow Bar Association is from the point of view of protecting its member solicitors, rather than making ‘consumer protection’ paramount … perhaps an obvious point of view, given the GBA is the bar association for law firms on Scotland’s west coast.
The response from the Glasgow Bar Association to the Law Society’s consultation states : “It is the view of the Glasgow Bar Association (the "GBA") that there is an irreconcilable conflict contained within s.1 of the Solicitors (Scotland) Act 1980 (the "Act"). That section legislates that it shall be "the object" of the Law Society of Scotland, inter alia, to "promote" the "interests of the solicitors' profession in Scotland" as well as "promoting the interests of the public in relation to that profession". It is impossible for the promotion of both interests to be mutually consistent, beneficial or indeed legitimate.”
The response from the GBA continues : “In the view of the GBA, the LSS has for decades failed to recognize the inherent and obvious conflict that arises in representing the public and the profession. The dilemma at the heart of the conflict can be put simply: how can the LSS represent or advise a solicitor that, for example, is the subject of a misconduct complaint to the LSS from his/her client? The answer too is simple: the LSS does not, and will not, offer advice, guidance or representation to that solicitor, under explanation that it is investigating the solicitor's alleged misconduct. Thus, the solicitor against whom perhaps serious, false and defamatory allegations have been made by a member of the public, will enjoy no "promotion" of his/her "interests" by the LSS in relation to that complaint; yet the "interests" of the member of the public making the complaint are "promoted" by the very investigation of that complaint itself. This conflict, in the view of the GBA, is irreconcilable.”
“The conflict is obvious and serves as a source of frustration to the profession. Solicitors, who currently pay over £1200 per year to the LSS (40% of which the LSS says is spent on "representation" of its members) cannot benefit from that representation in circumstances where their conduct is called into question, almost always on the basis of uncorroborated ex parte statements, by clients, former clients or members of the public. The individual solicitor is, in practice, left to his/her own devices. By contrast, the conflict which is embodied within s.1 of the Act, serves as a source of frustration to a public, rightly unconvinced that any such complaint can be fairly investigated, given that s.1 of the Act allows the very body to which the member of the public has complained, to "promote the interests of the solicitors' profession in Scotland".
The GBA went on to attack the Law Society’s proposals for its newly created ‘Board’, which allows a more "senatorial" role for Council, claiming the ‘Board’ distances ordinary solicitors further from the Law Society’s decision making process and branded it a result of the elite culture existing within the Law Society of Scotland.
The GBA said in their consultation response : “The establishment of this "Board" is, in the view of the GBA, typical of the "elite" culture existing within the LSS. The creation of the "Board" makes the LSS less accountable as a decision making body, inevitably increases costs for members by its creation, and is, ultimately, unaccountable in any direct sense to the LSS members. This elitism, and lack of any worthwhile accountability at the heart of the LSS, is manifested by the current refusal by the Council member for Hamilton, who is the Convener of the Legal Aid Committee, to address the hundreds of LSS members in Glasgow who practise criminal legal aid”
The GBA’s response to the consultation concluded : “The GBA believes that the "Proposals for Change" do not address in any way the conflict at the heart of the LSS highlighted herein. The GBA suggests that the proposed reform of the constitution will create an extra tier of unnecessary, costly administration, adding to the elitist development of the LSS. The reform proposals are proposals that the LSS hopes will dissuade those critics seeking a separation of the statutory "objects" of the LSS. Nothing more.”
More information on the Law Society of Scotland’s consultation can be found at the Law Society’s website here : Law Society of Scotland Consultation on Constitution along with detailed information on the ‘Proposals for Change’ at the following links :
Law Society President Jamie Millar ‘will discuss’ proposals on consultation concerns. The consultation, now closed, was praised by the Law Society’s current President, Jamie Millar of the law firm Lindsays, who now own a Borders law firm which itself is infamous in the debate on regulation of the legal profession & the Law Society’s representation of client’s best interests. Mr Millar said in the Law Society’s Press release : "I am grateful to all those who have taken time to discuss with colleagues, faculties and organisations and respond, often in detail. The constitution changes have been planned since 2007. Recent events have brought the constitution into focus and feedback from the AGM in May was that change, particularly around voting procedures (including proxy votes), and bringing motions to the AGM was necessary.”
He continued : “Particular concerns about motions passed at Council and whether the changes should be held until the Legal Services (Scotland) Bill has completed stage 3 will be addressed and I am grateful to those members and organisations who raised these points. I also welcome the feedback given at meetings with some individuals and groups who took up the Society's offer to discuss the proposals, possible improvements to the draft and concerns to be addressed. "
Law Society & SLCC are both unfit to regulate the Scottish legal profession, leaving consumers without any real protection against ‘crooked lawyers’. While the legal profession bickers with itself over changes which amount to little more than window dressing, clients of solicitors & consumers of Scots legal services can be assured no changes which may benefit clients over the interests of their solicitors will take place until the Law Society is stripped of its regulatory role over complaints, with the duties passed to a new fully independent regulator, one which should be far and above the anti-client Scottish Legal Complaints Commission, which is nothing more than a front company for the Law Society in protecting solicitor’s vested interests over consumers best interests.