Scots consumers to remain ‘in the dark’ over crooked lawyers complaints histories while English Legal Ombudsman publishes complaint data

The Legal Ombudsman move ahead with publication of complaints about the legal profession in England & Wales. SCOTS CONSUMERS officially now face a clear disadvantage in being able to choose a safe or trustworthy Scottish solicitor or law firm to represent their legal interests, after the Legal Ombudsman (LeO) for England & Wales began publishing preliminary details of complaints brought to its attention by clients who felt they had a raw deal from their legal representatives.

While the Law Society of Scotland & Scottish Legal Complaints Commission (SLCC) both appear intent on protecting the long term confidentiality & secrecy of the Scottish legal profession’s complaints data, thus ensuring Scottish consumers will not be able to find out their solicitors complaints histories, the move by the Legal Ombudsman south of the border is being seen as an important gesture towards increasing consumer knowledge of common failings of the legal profession typical of many complaints as well as encouraging a shake up in the quality of legal services on offer to the public south of the border.

The policy of publishing complaints data in England & Wales is ultimately intended to lead to actual naming & shaming of rogue law firms & solicitors who persistently provide poor services to consumers, an issue I reported on earlier in the month, here : Name & Shame : Complaints data on law firms to be published in England & Wales, Scots solicitors complaints history to remain secret, for now.

What Scots consumers wont see for a long time yet : Details published for the first time on the Legal Ombudsman’s website of common types of complaints or issues arising from difficult dealings with solicitors in England & Wales give examples such as :

On The Case with the Legal Ombudsman

Court out by costs :

We've made our first Ombudsman decision here at the Legal Ombudsman. Let's have a look at the case...

The complainant, Ms X, was about to buy two properties in Europe when she discovered that the developers hadn't built the homes to the required specification. She decided it was time to involve a lawyer and found one who was based overseas but regulated in the UK.

Given a costs estimate at the start, with one amount for initial advice and negotiations, and an additional figure if the case went to court, Ms X engaged the lawyer's services.

When negotiations broke down with the vendors, Ms X was told that the court costs would be £2,500 more than she was originally advised. When she asked why, her lawyer told her that her case had generated more correspondence than usual. He explained that as that was likely to continue, the price had to rise.

Ms X hasn't decided whether to pursue the matter in court, but has chosen to complain about the service her lawyer provided. She explained that she wouldn't have employed him if she'd known the price would increase. Dissatisfied with his response to her complaint, Ms X turned to us for help to resolve it. She added that as well as the increase in costs for taking the case to court, she was also unhappy with the price charged for the work already carried out.

Our view was that the work originally agreed had been completed without unnecessary delay and the firm had acted reasonably. However, we also concluded that there could have been a better explanation of the court costs and how these could change over time.

Ms X wasn't satisfied with the recommendation we made. She wanted more money back from her lawyer and asked us to refer the case for an Ombudsman's decision. So that's what we did.

The result was that our Ombudsman agreed with the recommendation originally made. We decided that the lawyer should pay Ms X £150 in recognition of the inconvenience caused by this inadequate costs information. The lawyer agreed to this and has assured us that the firm had started to issue client care letters as a result of our involvement.

Case one: home sweet home? :

Mr and Mrs A bought their house in 2005 - or so they thought. When they came to sell last year, they discovered that they didn't actually own their home. The solicitor for the people who wanted to buy the house discovered that Mr and Mrs A's names had never been transferred to the Land Registry documents. On the face of it, this looks like a serious oversight by the solicitor who managed the original purchase on their behalf.

Mr and Mrs A were not able to sort things out with their solicitor and so complained to us.

Case two: money matters :

Ms B is divorced now but has been left feeling dissatisfied with the service her lawyer provided at the time of the divorce. She had asked that the decree absolute should not be signed until all outstanding financial matters with her husband had been resolved. She realised that if it was signed before then, she'd be left in a sticky financial situation. When she was asked to sign the document herself, she did so believing her lawyer had followed her wishes. Unfortunately, as it turned out, a number of money matters had not been dealt with beforehand, as she had asked. So she is feeling let down by her lawyer and unhappy that they hadn't made this clear.

Case three: where there's a will... :

Mr C is the executor of his mum's estate. The lawyer acting on his behalf had the task of selling his mother's house and closing her two bank accounts. Mr C is also a beneficiary, so once these things are done, he will receive some money from the estate. A year down the line, and the lawyer has done nothing.. And Mr C hasn't heard from him for two months, despite chasing him on several occasions.

Mr C hasn't been able to resolve things with the lawyer himself and so brought his complaint to us.

Case four: just the job :

Ms D was sacked from her job, but had the right to appeal against the decision. So she instructed a lawyer to act on her behalf, but they missed the deadlines required for her case to be heard in court. This meant she couldn't go ahead with her appeal at all. She complains that she's been let down by the person she employed to help her.

Case five: a clean break :

Mr E contacted us to complain about the lawyer who had been dealing with his elderly mother's case. She'd fallen badly and damaged her ankle while out shopping. The 'no win, no fee' solicitor involved has taken three years to conclude that the case is not worth pursuing. Mr E believes that this timescale is unacceptable and has left his mother very distressed. She was under the impression that the case was nearing conclusion. Had she been told about this sooner, we were told, she would have employed another lawyer to deal with her case.

Case six: rising damp :

Mr F bought a property in London six years ago, knowing that there were problems with damp. He asked his solicitor at the time to make it a condition of sale that the damp would be fixed. His solicitor said it was all fine and so Mr F went ahead with the purchase. When he came to sell, however, a survey carried out for a potential buyer found the problem was still there. It seems that the work had not been done after all. Now Mr F wants to sell up and is insisting that his solicitor pays to sort out the damp and refund the fees that have already been paid to him.

Case seven: lost in transition :

Ms G's family has used the same solicitor for generations, looking after the deeds to her house and her will. She contacted the firm a couple of weeks ago as she wanted to make some changes to her will, only to be told that the documents had been lost. The original firm has merged with another one and now nobody at the new place is accepting responsibility for the loss.

As a result, Mrs G brought her complaint to us.

Case eight: stop rambling :

Mr and Mrs H are finding it hard to sell their home. They bought the house 10 years ago, but they say their solicitor failed to tell them about the public right of way that runs across the back of the house. This is putting potential buyers off. Mr and Mrs H say they wouldn't have bought the house, or would have paid less, if they'd known that people had the right to walk through their garden. They didn't know anything about this until they put their house on the market.

Their solicitor says he made the situation clear to them at the time, but the couple have brought their complaint to us.

Case nine: page turner :

Mr I is in prison. He has been asking his solicitor to forward a few items of personal property for the past two months, but has heard nothing back. These things are really important to Mr I – religious books that he needs to have with him while he's in prison. All he wants is his belongings to be sent to him as soon as possible.

He has complained to us that something so straightforward really shouldn't take so long.

Case ten: the French connection :

A complainant from France, who dealt with an English lawyer, bought a 1940s property. She decided to make some improvements to her new home, including changing all of the windows. She then received a letter from the local council telling her the property was listed and she'd need to put it back to its original condition. She's annoyed because her lawyer had failed to mention the fact she was buying a listed building, and she's now faced with the costs of putting the matter right.

Case eleven: trouble and strife :

One very distressed caller wants to complain about the solicitor who has been dealing with her acrimonious divorce. As part of the settlement, the marital home had to be sold. Her solicitor told her that she must be present with her husband when the valuation was carried out. She told him that she didn't want to do this, explaining that there had been domestic violence in the relationship and she wouldn't feel comfortable. Despite her protests, she told us he convinced her that she had to be there. The solicitor joined her for the valuation and her husband also turned up ... with his new girlfriend. The trouble that followed meant the police had to be called and the complainant has told us she has been under a great deal of stress ever since. She wants action taken against her solicitor for the distress caused.

Case twelve: first case closed! :

A caller wants to complain about the lawyer dealing with his tribunal. The lawyer had taken it upon himself to adjourn the case on four separate occasions - without letting his client know. The latest hearing was scheduled for 29 October, and the lawyer wanted to delay that hearing until December. This was an adjournment too far for our caller, who told the lawyer he wanted his file back and money returned. He heard nothing back following his request. We called the solicitor involved and upon hearing that the Legal Ombudsman was involved, the lawyer agreed to return his client's file and any money owed within the next three days.

While the complaints data now published by the LeO does not yet name actual solicitors or law firms, it is envisaged this will come sooner rather than later. The information will certainly carry much more weight in the public’s eyes if actual solicitors & law firms are identified, thus helping to avoid consumers hiring the same ‘crooked lawyers’ who have maligned other clients.

Law Society & SLCC much more anti-consumer than England’s LeO.In Scotland, the Law Society of Scotland, Scottish Legal Complaints Commission & Faculty of Advocates all refuse to publish complaints data naming law firms & the many solicitor ‘serial offenders’ or ‘crooked lawyers’ in Scotland’s legal profession. Currently, Scots consumers can only find out if a lawyer has had any findings made against them by visiting the consumer unfriendly Scottish Solicitors Discipline Tribunal website, where details of cases seem to indicate more often than not, ‘crooked lawyers’ who end up in front of the Tribunal even on the most serious of charges, remain in legal practice while clients affected by their actions receive little or no redress.

Consumer Focus Scotland support publication of Scottish legal profession’s complaints data. However, while there is still no sign of any similar moves by the Scottish Legal Complaints Commission to name & shame Scotland's many rogue solicitors & law firms, Consumer Focus Scotland have now come out in favour of publishing complaints data, a move which may well help many Scots consumers avoid going to solicitors & law firms who for now, are able to keep their complaints records & regulatory histories hidden from the public.

Gemma Crompton, Senior Policy Advocate (Legal Services) for Consumer Focus Scotland commenting on the matter said : “Publications of complaints data is a useful source of information for consumers. The SLCC currently produces some complaints data within their annual report. This includes information on the number of complaints received, the areas of law to which these relate and the stage of the SLCC’s process at which these complaints were resolved.”

Ms Crompton continued : “In its ‘Complaints about solicitors’ research, the Scottish Consumer Council, one of our predecessor bodies recommended that performance targets for each stage of the complaints process be published. Case study examples are published routinely by ombudsmen in the public sector, and used to be published by the Scottish Legal Services Ombudsman in its annual report. In 2010, a survey of our consumer network of volunteers to inform the Scottish Public Services Ombudsman’s model complaints handling process found that the publication of the outcomes of complaints was a particularly important principle for these consumers.”

Insiders at the SLCC who spoke on the issue earlier this week claimed the Scots law complaints quango has no intention to name & shame any of Scotland’s ‘crooked lawyers’ for fear of upsetting the Law Society of Scotland who certainly do not want anyone finding out their solicitor may be up to their necks in complaints about negligence, embezzlement or ripping off legal aid claims ...

Ex-Law Society Boss involved in Master Policy memo scandal & Climategate inquiry Chief retain 5 year, £290 a day Judicial Appointments quango jobs

Ensuring establishment support for another 4 years as Justice Secretary ? AMONG the multitude of justice related quango appointments quietly announced in the past week by Justice Secretary Kenny MacAskill, are the reappointments for five more years of former Law Society President Martin McAllister and former Permanent Secretary for the Scottish Government (Chief of the civil service in Scotland), Sir Muir Russell to the quango which recommends the appointments to Scotland’s judiciary, the Judicial Appointments Board, with salaries of £290 per day plus expenses for a meagre time commitment of 20 to 30 days per year.

Martin McAllister, former Law Society President. Martin McAllister, who was implicated in the memogate scandal involving the Law Society of Scotland, Marsh and Douglas Mill over ‘claims fixing’ allegations made by Cabinet Secretary for Finance John Swinney, retains his well paid Judicial Appointments Board position on top of yet another publicly funded quango position as part-time Convenor of the Mental Health Tribunal for Scotland with a whopping recession busting payment of £430 per day plus expenses.

My earlier report on Mr McAllister's controversial initial appointment to the Judicial Appointments Board, including details of the Law Society’s secret memos implicating his involvement in a scandal which went onto claim the resignation in January 2008 of Douglas Mill the then Chief Executive of the Law Society of Scotland, is here : Justice Secretary MacAskill denies knowledge of ‘claims fixing’ memos identifying former law chief sent to Judicial Appointments.

When asked about Mr McAllister’s past for my earlier report, the Justice Secretary’s spokesperson claimed there was no information of any matter involving Mr McAllister and his role in claims against the Master Policy during his time as Law Society President : Mr MacAskill’s spokesperson said at the time : “Mr McAllister was appointed through fair and open competition by an independent panel. We are not aware of any formal complaint about Mr McAllister’s role in relation to claims and complaints during his time as President of the Law Society of Scotland, and no evidence has been presented to us which would raise any questions over the decision of the selection panel.”

John Swinney, Cabinet Secretary for Finance & Sustainable Growth. However, the Scottish Government Finance Chief, John Swinney when in opposition during the summer of 2006 at the Scottish Parliament's Justice 2 Committee, questioned the then Law Society Chief Executive Douglas Mill over contents of his own memos, which referred to Martin McAllister. Mr Swinney said : "I am interested in what the witnesses have just said about the Law Society having nothing to do with the arrangements for handling negligence claims. I have in front of me a memorandum in connection with the case of one of my constituents. It was issued by Mr Mill on 5 July 2001.”

"Mr Mill's memo was written to the then president of the Law Society, Mr McAllister. It refers to the broker of the master policy. Mr Mill suggests that it would be good if he and the others involved all got together and had a "summit meeting" to discuss how to dispose of my constituent's "several valid claims". Mr Mill and I have discussed the matter at length over the years, but I find that a rather strange memo if it is to sit comfortably with the statement that the president has just made.

“The memo of 5 July encourages "a summit meeting on the up-to-date position"to be held to look at "both the complaints and the claims aspects." That rather suggests that the Law Society has been involved. The claim remains unresolved to date and yet the memo is dated 5 July 2001."

Clearly Mr Swinney’s evidence to the Justice 2 Committee during 2006, which can be viewed in video footage on InjusticeTV HERE, raises serious questions over the honesty of the Scottish Government’s claim not to have known of Mr McAllister’s past involvement in the Marsh memo scandal.

In the case of the reappointment of Sir Muir Russell to the Judicial Appointments Board, the former head of the civil service in Scotland, is now better known for his chairing of the Climategate inquiry into into allegations that leading academics at the University of East Anglia manipulated data on global warming. The ‘results’ of that ‘inquiry’ can be found HERE.

The Herald newspaper revealed in a report “Holyrood fiasco peer’s £40k for chairing Climategate review” by Paul Hutcheon that Sir Muir Russell walked away with nearly £6000 a month (totalling £40,000) for leading the Climategate probe which unsurprisingly cleared scientists at the University of East Anglia of data manipulation.

The Herald report said : “The inquiry chaired by Sir Russell investigated claims that researchers at East Anglia had distorted statistics on global warming. Hacked e-mails written by university staff led to fears that information on climate change was being manipulated, a row that was played out internationally. The six-month probe concluded with Russell and his team noting the “rigour and honesty” of the scientists. A freedom of information request has revealed that the university paid Russell a £40,000 fee for his chairmanship. He also benefited from £2908 in travel and £976 for accommodation.”

Here follows the announcement from the Scottish Government of Sir Muir Russell & Martin McAllister’s reappointments to the Judicial Appointments Board, for another five years on £290 per day plus expenses, all coming out of public funds :

Judicial Appointments Board for Scotland

The Cabinet Secretary for Justice today (22/03/2011) announced the reappointments of Sir Muir Russell as the Chairing Member, and Mr Martin McAllister as a member to the Judicial Appointments Board for Scotland.

Sir Muir Russell was first appointed as Chairing Member of the Judicial Appointments Board for Scotland on October 1, 2008 for a three year period. His background is as a civil servant and he held a number of posts before being appointed Permanent Secretary at the Scottish Office in 1998. He was Principal of the University of Glasgow from 2003 until his retiral in 2009. He is a Vice Chair of Governors of the Glasgow School of Art, the Chairman of the Dunedin Concert Trust, a Member of the Board of the Moredun Research Institute, the Chairman of the Council of the Hannah Research Institute and a Fellow of the Royal Society of Edinburgh.

This reappointment will run for a further three years from October 1, 2011 to September 30, 2014. He is an experienced chair who demonstrates particular strengths in building relationships both internally and with external partners. This post is part-time and attracts a remuneration of £17,500 per annum for a time commitment of 20 to 30 days per year. He has no other public appointments.

Mr McAllister was first appointed as a legal member on September 1, 2008 for a three year period. He is a partner with Taylor and Henderson Solicitors. He is a former President of the Law Society of Scotland and has convened several of its Committees including Legal Aid, Professional Practice and Professional Conduct. Mr McAllister is currently a part-time tutor at the University of Strathclyde and a part-time Convenor of the Mental Health Tribunal for Scotland.

As a practicing Solicitor and former President of the Law Society he brings valuable experience of the largest element of the legal profession in Scotland. This reappointment will run for a further three years from September 1, 2011 to August 31, 2014. This post is part-time and attracts a remuneration of £290 per day a for a time commitment of 20 to 30 days per year. Mr McAllister is also a part-time Convenor of the Mental Health Tribunal for Scotland with a remuneration of £430 per day.

The Judicial Appointments Board for Scotland was established by Ministers in 2002, and it became an independent advisory non-departmental public body on June 1, 2009. The Board has statutory responsibilities under the Judiciary and Courts (Scotland) act 2008. The Board's role is to make recommendations to Ministers for appointment to the office of judge, sheriff principal, sheriff, and part-time sheriff as well as other judicial offices set out in the Act.

These Ministerial public appointments were made in accordance with the Commissioner for Public Appointments in Scotland's Code of Practice.

All appointments are made on merit and political activity plays no part in the selection process. However, in accordance with the original Nolan recommendations, there is a requirement for appointees' political activity within the last five years (if there is any to be declared) to be made public. There is no political activity to be declared.

BACKGROUND to the Judicial Appointments Board:

The role of the Judicial Appointments Board is to recommend to the Scottish Ministers individuals for appointment to judicial offices within the Board's remit and to provide advice to Scottish Ministers in connection with such appointments. The Board is responsible for recommending individuals suitable for appointment to the following judicial offices Judge of the Court of Session, Chair of the Scottish Land Court, Sheriff Principal, Sheriff, Part-time Sheriff, Temporary judges.

The JAB’s website claims : “The selection of individuals for recommendation must be made solely on merit and an individual may only be selected for recommendation if he or she is of good character. Only the judicial and legal members of the Board may assess the applicants' knowledge of the law or their skill and competence in the interpretation and application of the law. Decisions about an applicant’s suitability to be recommended for appointment are made by the whole Board.”

Ironically, a research report carried out by the Judicial Appointments Board claimed that jobs for Scottish judges were controlled by an old boys network , probably the same old boys network which ensures who gets jobs on the Judicial Appointments Board itself.

One more ex-cop for anti-client Scottish Legal Complaints Commission as Justice Secretary hands out five year quango jobs at £212 per day

Scottish Legal Complaints Commission to get more ‘lay’ board members after MacAskill say-so. KENNY MACASKILL, Scotland’s Justice Secretary has today announced three new lay member appointments to the board of the scandal hit, anti-client Scottish Legal Complaints Commission, the law complaints quango which was set up in 2008 to clean up on Scotland’s massed ranks of ‘crooked lawyers’. The appointments, one of which contains a soon to retire Grampian Police Superintendent, were made in consultation with Scotland’s Lord President, Lord Hamilton, who must give a wink his approval for the posts to be filled.

The new ‘lay’ members to join the board of the Scottish Legal Complaints Commission will bring the number of former Policeman on the SLCC to three, with Superintendent Iain McGrory, who Mr MacAskill states is “about to retire as a Superintendent from Grampian Police after 35 years service”, now joining Tayside’s former Deputy Chief Constable Ian Gordon and former Chief Superintendent Douglas Watson to make three former senior Police Officers as ‘lay members’ on the board of the Scottish Legal Complaints Commission.

Like his soon to be ‘ex-cop’ media famous colleagues already on the SLCC’s board, Superintendent McGrory also has some media fame, although this time possibly in a more positive light, for investigating disciplinary matters involving Police Officers, as a Sun newspaper article reports, HERE and a Press & Journal article mentions HERE. The two other SLCC ‘lay member’ appointments announced today are filled by, Fiona Smith, the former HR Director with NHS Orkney, and Siraj Khan who trained as a Barrister.

Scotland’s Lord President, Lord Hamilton must be consulted for approval of latest recruits to extravagantly funded SLCC board member positions. The three new ‘lay members’ who are supposed to ‘balance’ up the Law Society tilted Scottish Legal Complaints Commission will be happily receiving a very wallet friendly £212 per day for the next five years, for a remarkably little time commitment of up to six days per month, along with the usual expenses claims, which currently average out to a massive £10,000 approx per SLCC board member and the many other perks associated with being on what one msp called “A front company for the Law Society of Scotland.”

Interestingly, an earlier attempt to recruit additional lay members to the SLCC’s board in 2009 backfired, after one of the current SLCC lay members threatened to resign then had second thoughts. I reported on this in an article in July 2009, here : SLCC appointments scandal 'humiliation' for Justice Secretary as MacAskill forced to abandon new lay member recruitment

The three latest appointments to the Scottish Legal Complaints Commission come after Mr MacAskill appointed Maurice O’Carroll, the Scottish Government’s own Junior Counsel to fill a ‘lawyer only’ position on the Scottish Legal Complaints Commission’s board, after no other member of the legal profession applied to join the tainted law quango. I reported on that story in an exclusive, here : Poisoned Chalice : MacAskill forced to parachute Government’s own lawyer onto Scottish Legal Complaints Commission after Advocates shun job offer

While the SLCC are portraying the fresh appointments as an attempt to improve its ‘Called to the Bars’ anti client image, it was revealed earlier this year in the SLCC’s 2010 Annual report that it has been so unsuccessful in doing its job, the quango which was started with a whopping two million pounds of public money has only upheld one single complaint in its three years of existence. You can read more about these revelations here : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

Today’s announced three ‘fresh faces’ to join the SLCC currently hold no other public positions, unlike the rest of their soon to be colleagues at the SLCC, a concern which was expressed by one Scottish Government insider after I featured an earlier report on the many jobs of other SLCC board members, here : More ‘jobs for the boys’ than action on ‘crooked lawyers’ : What it takes to be a Board Member at the Scottish Legal Complaints Commission

The announcement from the Scottish Government :

Appointment of three new lay members to Scottish Legal Complaints Commission

The Cabinet Secretary for Justice today announced the appointment of three new members to the Scottish Legal Complaints Commission.

The new members Fiona Smith, Siraj Khan and Iain McGrory.

Fiona Smith was until recently HR Director with NHS Orkney, with a wider strategic management contribution as a Board Executive Director, particularly through strategic planning, governance and organisational development skills. Previous roles with Standard Life Edinburgh have included three years as a customer services manager; 2 years as a marketing developing project manager; and four years as organisational development manager responsible for the operational and strategic management of a range of HR functions across Standard Life. Ms Smith brings governance, consumer handling and complaint resolution skills and knowledge to the Board.

Ms Smith does not hold any other public appointment.

Siraj Khan trained as a Barrister and was called to the Bar in March 2010. He is currently a research student reading for a PhD at the Department of Islamic & Middle Eastern Studies, University of Edinburgh in the area of Islamic Law, Human Rights and Scriptural Exegesis. He has worked as an Immigration Consultant, an Advisor to students and staff at Brunel University and as a private clerk for a Judge at the Immigration Appeals Tribunal in London. He has represented clients in court in immigration, consumer, criminal and other matters and has around two years experience in arbitration and negotiation. He was appointed as the National Outreach officer for a national muslim youth association and since moving to Edinburgh has been appointed as the Deputy Regional Officer for Scotland and currently serves in this role on a voluntary basis. Mr Kahn brings complaint handling experience and a strong analytical capacity to the Board along with a clear understanding of diversity issues.

Mr Khan does not hold any other public appointment.

Iain McGrory is about to retire as a Superintendent from Grampian Police after 35 years service. He was appointed Head of Professional Standards at Grampian Police in May 2002. He held this post until June 2010, when the was seconded to the Association of Chief Police Officers in Scotland (ACPOS), Professional Standards Business Area, where he has led a small team to deliver proposals for new Police Complaints and Misconduct procedures. Mr McGrory brings extensive experience in complaints handling, and experience in good audit and internal control.

Mr McGrory does not hold any other public appointment.

These appointments will run for five years from a date to be arranged.

These posts are part-time and attracts a remuneration of £212 per day for a time commitment of up to six days per month.

The SLCC was established by virtue of the Legal Profession and Legal Aid (Scotland) Act 2007. Its main functions are to resolve complaints alleging inadequate professional service or negligence by legal practitioners, to refer complaints which allege professional misconduct or unsatisfactory professional conduct to the relevant professional body and to promote good practice in complaints handling.

This Ministerial public appointment was made in accordance with the Commissioner for Public Appointments in Scotland's Code of Practice. All appointments are made on merit and political activity plays no part in the selection process. However in accordance with the original Nolan recommendations, there is a requirement for appointees' political activity within the last five years (if there is one to be declared) to be made public. There is no political activity to be declared.

Cats & Doughnuts : Lawyers challenge to legal aid cuts struck down by Holyrood Committee while Law Society claims ‘public interest is at it’s heart’

Representatives of the Glasgow Bar Association ‘hotly’ contest Law Society backed cuts to legal aid fees & access to justice. TESTIMONY from members of the Glasgow Bar Association & officials from the Law Society of Scotland at this week’s Tuesday session of the Scottish Parliament’s Justice Committee over the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011, which propose a 25% cut in legal aid fees to Glasgow solicitors, raised some interesting viewpoints as to the credibility of the Law Society as a representative & regulatory body for both solicitors & the public.

The debate, which featured solicitors David O’Hagan & Gerry Sweeney appearing for the Glasgow Bar Association, and ‘access-all-areas’ Michael Clancy & Andrew Alexander appearing for the Law Society of Scotland, took place after a motion was lodged by James Kelly (Scottish Labour) recommending annulment of the of the Scottish Government’s proposal to cut 25% off the fees for attending Glasgow’ Stipendiary Magistrates Courts where solicitors currently earn £515 for each case. The proposed cut will leave that fee at £390.

The motion by Mr Kelly to annul the legal aid cuts affecting the Stipendiary Courts was defeated on a 5-4 vote after the Justice Committee Convener, John Lamont used his casting vote to decide the issue.

In the money : Lawyer v Lawyer at Scottish Parliament’s Justice Committee over cuts to legal aid fees. Pity they wouldn’t expose the Master Policy & Law Society anti-consumer policies in the same terms (Click images to watch video footage)

Part 1 :

Part 2 :

The lively, if at times tedious debate between solicitors, the Law Society & msps who appear to blur into a striking similarity with each other, lasts nearly fifty minutes and the verbatim account of the proceedings can be viewed at the Scottish Parliament’s website, here : Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162).

Much of the debate is about legal aid fees which lawyers pick up for appearing at Glasgow’s Stipendiary Magistrates Courts along with claims the Law Society has failed to represent the interests of Glasgow solicitors over the legal aid cuts. There is, sadly, little in the proceedings for those who are campaigning for fully independent regulation of the legal profession, or any mention of ideas along the lines of those I have proposed for years, and featured again earlier in the month, HERE.

As the debate closed, it should be noted the final say went to the Law Society of Scotland, where the well known Michael Clancy made some rather unconvincing claims about how the Law Society has ‘the public interest at heart when thinking about access to justice issues’.

According to the Scottish Parliament’s Official Report of the meeting, Michael Clancy said : “The society has a statutory obligation to promote the interest of the solicitors profession and the interests of the public in relation to that profession. Of course we have the public interest at heart when thinking about access to justice issues. The internal management of our committees is another matter… It is unfortunate to suggest that the society does not have access to justice concerns at its heart. We deal with people, too. We deal with people who are solicitors and people who are solicitors' clients. We accept that they are complex and human individuals, just as much as we are. We are not just statistical policy wonks.”

You must be kidding, Mr Clancy. No one outside the Law Society of Scotland’s sphere of influence believes this.

Of course, we should be under no illusions about the terms of this debate. Its about money, much more so than regulation or the or creation of separate organisations to represent solicitors & clients best interests.

The now well publicised bickering within the legal profession on the subject of legal aid cuts, which has led to several resignations from the Law Society’s Council reported by Scottish Law Reporter HERE, HERE and HERE along with several features in The Herald newspaper such as HERE, HERE HERE and HERE, seems to have spilled out into public after a Law Society Committee proposed, among other things, the merging of the Scottish Legal Aid Board and the Scottish Legal Complaints Commission, which was reported HERE and, with the suggestion that “putting solicitors in charge of their own legal aid payments as "like putting Homer Simpson in charge of a doughnut factory", HERE

One of the protagonists in the debate, the well known Mike Dailly of the Govan Law Centre wrote on his blog in the independent Scottish legal publication “The Firm” earlier this week in a posting entitled “8 out of 10 cats” : “Dual regulatory and representative functions are incompatible. All of the discord and disharmony we have in Scotland's legal profession; and the concern or distrust that many members of the public have for lawyers; flows from this inherent conflict. Which is why we need an independent statutory regulator of legal services in Scotland - not for solicitors (and the oft-quoted poll of how 8 out of 10 of solicitors prefer the Law Society) but because the public interest demands it. Likewise, Scottish solicitors like any other worker should be able to choose their own trade union. It's that simple. If you fix this blockage, everything else will work.”

He continued : “Let's face the truth. The people of Scotland deserve an independent statutory regulator of legal services; and Scotland's solicitors should be entitled to choose who represents them.”

Yes this is very true. However, if this is really to happen, as consumers, campaigners and even some solicitors now recognise, all of us will have to come together to debate & argue for this cause at the Scottish Parliament and in public with the same veracity as the Glasgow Bar Association are arguing their corner over the legal aid fee cuts.

A few solicitors & advocates trading doughnuts, a few insults, and throwing street-wise moggies at each other over the issue will not get the job done.

However, if the public were to be more widely engaged on the debate, and particularly those with experience of dealings with the Law Society on a wide range of issues (including regulation) allowed to speak, the Scottish Parliament & Scottish Government may finally have to listen and be made to understand the present system of the Law Society of Scotland ruling over all it sees, does not work.

If anyone is up for campaigning for necessary & real changes to the legislation which governs those who represent the public and the legal profession, you know where to reach those who share the same views .. if not, well it just wont happen any time soon. Capisce ?

Law complaints quango Scottish Legal Complaints Commission 'a failure' as Discipline Tribunal reveals no prosecutions of crooked lawyers in two years

Disappearing Act : Not one crooked lawyer prosecuted in two years under Holyrood’s legal complaints reforms. THE latest Annual Report of the Scottish Solicitors Discipline Tribunal (SSDT), the allegedly 'independent' law complaints tribunal which prosecutes ‘crooked lawyers’ after cases resulting from client complaints are sent to it by the Law Society of Scotland, has revealed NOT ONE SINGLE SOLICITOR has been prosecuted under laws brought in as a result of a hugely expensive year long investigation & debate at the Scottish Parliament during 2006 to introduce legislative reforms covering the regulation of complaints against the legal profession.

The reforms, which the Scottish Executive & Scottish Parliament claimed would end the bias against clients in a regulatory system operated solely by the Law Society of Scotland where lawyers investigate themselves, were passed by msps in December 2006 after a year of bitter debate at the Scottish Parliament’s former Justice 2 Committee.

The Chairman of the Scottish Solicitors Discipline Tribunal, Alistair Cockburn, writing in the SSDT’s 2010 annual report claimed there was no explanation for the lack of cases brought before the tribunal. He said : “The volume of business coming to the Tribunal has significantly reduced in the last 18 months. There seems to be no particular explanation for this. The Tribunal however has been surprised by the fact that it has so far not dealt with any cases governed by the Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act) which applies to all conduct which occurred after 1 October 2008. The Tribunal would have expected to have been dealing with these cases by now.”

Mr Cockburn did admit two cases had been brought to the SSDT’s attention, apparently from lay complainers directly, but the two appeals had been withdrawn over fears of being hit with expenses bills. He said : “The Tribunal did receive two Appeals under section 42ZA of the 2007 Act from lay complainers in respect of the compensation awarded, or lack of compensation awarded, by the Law Society in making findings of unsatisfactory professional conduct. However both these Appeals were withdrawn once the lay complainers realised their potential liability for expenses.”

The 2010 Annual Report of the Scottish Solicitors Discipline Tribunal can be downloaded HERE (pdf)

The validity of the Legal Profession & Legal Aid (Scotland) Act 2007, which is now being questioned even by the Chairman of the SSDT, led to the creation of the equally anti-client Scottish Legal Complaints Commission, which has since been widely discredited by the media. The 2007 Act now appears to have resulted in little or no clean up of rogue elements inside Scotland’s infamously corrupt, solicitor monopolised legal services market.

With the revelations of the SSDT’s 2010 annual report that no cases have been passed to it for prosecution under the Legal Profession & Legal Aid (Scotland) Act 2007 which many viewed as a solution to the Law Society of Scotland’s self regulation of complaints against Scottish solicitors, consumer organisations & campaigners have heavily criticised the incompetence of the Scottish Parliament to ensure the 2007 Act produced real consumer protection against poor quality legal service providers.

One campaigner branded the legislation which was created after a year of debate on the subject, the Legal Profession & Legal Aid Act (2007), as “a worthless attempt by msps to reform the legal profession’s complaints system.”

Speaking further on the issue, he said : “The Scottish Parliament have not improved the complaints system of the legal profession. Instead they have actually made it worse. Now consumers are forced to deal with an equally one sided Scottish Legal Complaints Commission where complaints against ‘crooked lawyers’ are still sent back to the Law Society instead of being dealt with by any supposedly independent SLCC officials.”

An official from one of Scotland’s consumer organisations who spoke to Diary of Injustice late last week said she was surprised there had been no prosecutions of solicitors under the 2007 Act.

She claimed the SLCC lacked any will to do its job, citing an array of failures over the nearly three years the SLCC has existed, failures which include a refusal by the SLCC to monitor claims to the Law Society of Scotland’s Master Insurance Policy & Guarantee Fund compensation schemes, both of which which appear to victimise clients more than compensate them for losses suffered as a result of poor, negligent or even crooked legal service.

Law Society of Scotland sponsored amendments at Holyrood ensured complaints reforming legislation was completely compromised. One msp, who figured in the Scottish Parliament’s discussions over the LPLA Act, admitted the reforms were now wifely viewed as “useless”. He also alleged the Law Society of Scotland were allowed ‘too much leeway’ at the time to suggest or introduce amendments to the legislation which resulted in the LPLA Act being completely compromised in terms of its original aims.

The msp confirmed he currently receives significant correspondence from multiple constituents who have problems dealing with both the Law Society of Scotland and the Scottish Legal Complaints Commission over complaints against rogue solicitors. He branded both organisations as anti-consumer and accused the SLCC of being as bad as the Law Society over complaints investigations.

The Scottish Legal Complaints Commission has concentrated more on expenses claims, a huge bank balance & little action on complaints. Indeed, the Scottish Legal Complaints Commission has been so effective at regulating complaints, the SLCC’s latest annual report admitted it had only managed to uphold one complaint in a year, while enjoying a multi million pound cash rich bank balance many private companies would currently be envious of in today’s bleak financial outlook. I reported on the SLCC’s latest annual report and these revelations in an earlier article, here : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

The SLCC was asked for comment on the apparent lack of referrals for prosecution and asked for an explanation why no solicitors have been referred to or have been prosecuted before the SSDT.

A spokesperson for the SLCC replied : “The Scottish Legal Complaints Commission does not have the power to refer legal practitioners to the SSDT; referrals would be made by the Law Society of Scotland. You would therefore need to refer your question regarding the “…apparent lack of referrals for prosecution…” to the LSS.”

“Complaint numbers are certainly lower than originally predicted before the opening of the SLCC and this may be due to the economic downturn. You will have seen from the SLCC’s Annual Report that the largest business area for complaints was residential conveyancing and media reports currently indicate the market for the buying and selling of houses is depressed.”

Clearly a problem seems to exist where the Scottish Legal Complaints Commission appears to have no powers to refer cases directly to the Scottish Solicitors Discipline Tribunal, a matter now causing great concern to many consumers who feel, with significant justification, they cannot trust the one sided biased Law Society of Scotland or the now equally anti-client Scottish Legal Complaints Commission.

Given the SLCC appears to lack powers to refer cases directly to the tribunal, the organisation was asked by Diary of Injustice whether it would be seek an extension to its powers to enable it to bypass the Law Society and deal with the Scottish Solicitors Discipline Tribunal directly.

Their spokesperson replied to this query saying : “With regard to your question regarding the extension of our powers, the SLCC has no comment to make.”

While it is now apparent the Scottish Legal Complaints Commission lacks powers to be a credible regulator what is also apparent is the SLCC has no wish to improve its powers or role as the single gateway for complaints against Scottish solicitors. Can such a regulator be trusted ? I think not.

Here now follows the Sunday Mail’s report on the lack of prosecutions of rogue solicitors in Scotland :

WHERE DID THE DODGY BRIEFS GO ?

No new cases for two years

By Russell Findlay Sunday Mail March 06 2011

Legal watchdogs who strike off crooked lawyers have not received any new cases for the last two years.

The Scottish Solicitors’ Discipline Tribunal has not been sent a single professional misconduct case since a shake-up to legal complaints regulation in 2008.

Puzzled bosses at the Fie-based organisation don’t know why bent lawyers have stopped being reported.

Its 2009/2010 annual report, published this week, states “The tribunal is unaware of the reason why it has not received any professional misconduct cases under the 2007 Act as it would have expected that some conduct issues arising after October 1, 2008 would now have reached the tribunal”

The 2007 shake-up saw the creation of the Scottish Legal Complaints Commission to oversee all complaints about lawyers but it has been branded an expensive white elephant.

The SLCC sends misconduct complaints to the Law Society of Scotland who decide whether to pass them to the SSDT.

Legal reform campaigner Peter Cherbi called for a rethink of regulation. He added : “There should be a complete break from the Law Society rather than the SLCC halfway house whose board is comprised of ex-police officers, solicitors and quangocrats. I am shocked to learn the SSDT has not had a single case of prosecution referred under the 2007 legislation which created the hugely expensive SLCC, started up with 2 million of taxpayers money.”

SSDT clek Judith Lea said : "We don’t know what’s happened. Since the report we have received some cases but I don't know how many.”

The SLCC said : “We refer misconduct cases to the Law Society and it’s up to them to decide whether to refer them to the SSDT.”

Philip Yelland of the Law Society added : “Where the society considers there may be professional misconduct it does prosecute before the independent SSDT.”

Background to the Scottish Parliament’s consideration of the LPLA (Scotland) Bill (2006):

The bitter battle over the Scottish Parliament’s debate of the Legal Profession & Legal Aid (Scotland) Bill during 2006 saw officials from the Law Society of Scotland argue against the reforms and attempt to counter, even obstruct consumers testimony to msps. Clients who had been victimised by the legal profession were eventually allowed to speak before the Scottish Parliament's Justice 2 Committee, telling msps of their bitter, harrowing experiences with the Law Society of Scotland over complaints against solicitors & law firms.

The 2006 Justice 2 Committee of the Scottish Parliament's consideration of the LPLA Bill revealed many suspicious dealings over complaints against the legal profession, even implicating senior Law Society officials interference in complaints & financial claims made against ‘crooked lawyers.

The bitter, acrimonious debate at Holyrood reached such a point, the then Chief Executive of the Law Society of Scotland, Douglas Mill issued legal threats against the authority of msps & the Scottish Government to pass any legislation stripping the Law Society of its powers which allow lawyers to investigate themselves. The Law Society’s threat of a legal challenge was backed by a legal opinion from a Liberal Democrat English QC Lord Lester of Herne Hill. The opinion provided by Lord Lester claimed it was a lawyer’s human right to investigate their own colleagues.

While it had appeared at the time the Law Society’s threat of a legal challenge against the Scottish Government & Scottish Parliament’s attempt to pass the reforms had failed, several quiet changes to the wording of the LPLA Bill took place behind the scenes and further amendments were drafted which eventually resulted in the Law Society supporting the changes, which clearly amounted to the vested interests of the legal profession getting their way with msps over the interests of consumers.

Reference : The Scottish Solicitors Discipline Tribunal :

The Scottish Solicitors’ Discipline Tribunal claims to be an independent Tribunal constituted under the provisions of sections 50–54 of and Schedule 4 to the Solicitors (Scotland) Act 1980 (the 1980 Act) as amended in particular by the Legal Profession and Legal Aid (Scotland) Act 2007 (the 2007 Act). The Tribunal sits with two solicitor members and two lay members. The Tribunal claims independence of the Law Society of Scotland with none of the solicitor members being on the Council of the Law Society.

The lay members are drawn from a ‘wide variety’ of backgrounds, similar to the wide variety of backgrounds of those who sit on the board of the Scottish Legal Complaints Commission. All of the allegedly ‘independent’ Tribunal members are appointed by the Lord President. The Tribunal presently has 11 solicitor members and 12 lay members. The Tribunal operates under the Scottish Solicitors’ Discipline Tribunal Procedure Rules 2005 and the Scottish Solicitors’ Discipline Tribunal Procedure Rules 2008. All very independent, if of course, you think this is ‘independent’. You can find out more about the members of the Scottish Solicitors’ Discipline Tribunal HERE

LIAR AID : Paisley law firm removed from criminal legal assistance register, questions remain why no prosecution after lawyer repaid £221k to SLAB

Scottish Legal Aid Board remove law firm from criminal legal assistance register. THE SCOTTISH LEGAL AID BOARD (SLAB) revealed yesterday it has finally removed the Paisley law firm of Robertson & Ross Ltd and one of its directors, Fraser Currie, from the list of firms & solicitors registered to provide criminal legal assistance, some eight months on after it was first revealed in the Sunday Mail newspaper in July 2010 there was to be no criminal prosecution of another solicitor Iain Robertson from the same law firm after he returned a a massive £221,847 to the Scottish Legal Aid Board.

The Scottish Legal Aid Board said that for law firms to register and remain registered to practice criminal legal assistance, individual firms and solicitors must show that they meet the standards of service set out by the code in three main areas - management and administration systems, standards of service and standards of professional conduct.

Clearly, Messrs Robertson & Ross must have failed to meet those those “standards of service” which SLAB claim to rigorously enforce, although why the law firm was not charged with criminal offences is yet to be exposed in a scandal which may well rock the Scottish Legal Aid Board, the Crown Office and the Law Society of Scotland.

I reported on the Crown Office’s apparent refusal to prosecute Robertson & Ross over the legal aid case in an earlier article, here : Justice for all ? Scotland’s Crown Office refuse to prosecute ‘crooked lawyers’ who 'wrongly' claimed £221K in Legal Aid funds

It should be noted that while the law form of Messrs Robertson & Ross have now been removed from the Criminal legal Assistance Register by the Scottish Legal Aid Board, this move only prevents the law firm from doing legal aid work in relation to criminal cases. It does not prevent them from doing private-fee work as this is outside the Board’s responsibility.

The Press Release (pdf) from the Scottish Legal Aid Board reads as follows :

Removal of firm and solicitor from the criminal legal assistance register The Scottish Legal Aid Board announced today that it had removed the firm of Robertson and Ross Limited, 7 Causeyside Street, Paisley, PA1 1UW, and one of its directors Fraser Currie, from the list of firms and solicitors registered to provide criminal legal assistance. This means that the firm and individual solicitor cannot now provide criminal legal assistance.

The removal of the firm and Mr Currie follows investigations by the Board in relation to the Board’s code of practice for criminal legal assistance and is as a result of further information becoming available to the Board during the July 2010 deregistration of Mssrs. Iain Robertson, director of the firm and Alastair Gibb, a former associate of the firm for similar failings.

These investigations revealed significant failures to comply with the code which included the submission of accounts that overcharged travel to prisons.As a result of non-compliance with the Board’s code of practice, the firm of Robertson and Ross Limited previously repaid to the Legal Aid Fund, the sum of £221,847.

The Board has a substantial programme of monitoring and investigating legal aid expenditure involving both legal aid applicants and the legal profession. While it can stop solicitors doing criminal legal aid work under its own powers, currently only the Law Society of Scotland can stop solicitors from doing civil legal aid work.

Where the Board has concerns about the conduct of lawyers or advocates, it can make formal complaints to the appropriate regulatory body (for example, the Law Society of Scotland, the Faculty of Advocates or the Legal Complaints Commission) and may also forward cases for consideration to the Crown Office Procurator Fiscal Service.

In 2009-2010, the Board’s compliance and investigations work resulted in savings and recoveries of nearly £2 million and a number of cases involving solicitors, applicants and legally-aided assisted persons were reported to the Crown Office.

The Board manages legal aid in Scotland, which is paid for by the taxpayer and delivered by solicitor and counsel. A key part of the Board’s work is ensuring firms and solicitors abide by legislation, guidance and the code of practice for criminal legal assistance. This work is important in protecting the Legal Aid Fund and the taxpayer. It is also a protection for the vast majority of legal aid practitioners who provide a quality legal service with honesty and integrity

While the Press Release from the Scottish Legal Aid Board claims “In 2009-2010, the Board’s compliance and investigations work resulted in savings and recoveries of nearly £2 million and a number of cases involving solicitors, applicants and legally-aided assisted persons were reported to the Crown Office”, raising the probability there should have been several prosecutions of law firms for legal aid fraud, it appears the only people being charged or prosecuted over legal aid fraud, are the applicants, rather than solicitors or law firms … a scandal in the making which will soon be revealed in an upcoming investigation.

Lets not forget how it takes the media to expose a scandal in the legal world as The Sunday Mail reported in July 2010 :

LIAR AID : Fury as shamed lawyer stays out of court despite admitting £221k of bogus claims

Jul 18 2010 Exclusive by Derek Alexander, Sunday Mail

A LAWYER has escaped the dock - after handing back more than £200,000 of bogus legal aid claims.

A criminal probe into Iain Robertson has been dropped after he returned £221,847 to the Scottish Legal Aid Board. Amazingly, Robertson is even allowed to continue claiming legal aid for civil cases while waiting to discover if he will be struck off.

The scandal centred on the 57-year-old shamed solicitor and his firm Robertson & Ross in Paisley. Another lawyer - Aberdeen-based Alastair Gibb - was also investigated.

Scots Lib Dem justice spokesman Robert Brown demanded to know why Robertson is not being taken to court. He said: "It seems that the Crown Office have some questions to answer as to why they didn't prosecute what appears to be a straightforward fraud involving a significant amount of money."

Labour justice spokesman Richard Baker added: "This is a very serious issue and we should have clarity on why the Crown Office decided not to proceed. "The sum of cash is huge and I'll be interested to know why the lawyers involved haven't faced criminal charges."

Robertson was accused of submitting £223,000 worth of false claims for taxpayers' cash from SLAB over an 18-month period. The claims were based on Gibb travelling thousands of miles from Paisley to see clients in Aberdeen and Peterhead prisons. In reality, Gibb was living in Kingswells, near Aberdeen.

Earlier this month, Robertson agreed to pay have back £221,847 to SLAB and was banned from claiming criminal legal aid cash in the future. But he's still allowed to claim legal aid for any civil cases he undertakes. Gibb, 60, did not renew his certificate to practise as a solicitor with the Law Society of Scotland after SLAB called in police two years ago.

Fraud squad detectives submitted a detailed report about the case to Crown prosecutors in April, 2008. But officials marked the case "no proceedings" and stubbornly refuse to explain their decision.

Last year Robertson & Ross received £367,600 in legal aid compared to £832,000 between 2007 and 2008. Legal aid exists to pay fees for those who can't afford to hire a solicitor.

Gibb claimed he was sacked by Robertson & Ross but was awarded a cash settlement by the firm before an unfair dismissal tribunal. He said: "What went on between SLAB and Robertson & Ross is totally outwith my knowledge, other than that I assisted SLAB once. I'm now 60 and don't have a hope in hell of getting a job now. I've been wiped out."

In December, 2008, Robertson was censured by the Scottish Solicitors' Discipline Tribunal for ripping off a client for £21,308. He took cash payments from the woman while claiming legal aid for the work. He was fined £5000 and found guilty of professional misconduct.

A SLAB spokesman said: "Iain Robertson and Alastair Gibb have been investigated. The sum of £221,847 has been paid back."

Robertson said: "It was accepted that payments had been wrongly claimed and as the supervising partner I had to accept responsibility. "We dealt with the matter and agreed the figures. I'm disappointed that SLAB have taken the decision they have."

A Crown Office spokeswoman said: "We received a report in relation to two men aged, 60 and 57, in relation to an alleged incident in Paisley in 2008. After full and careful consideration of the facts and circumstances, Crown Counsel instructed there should be no proceedings in relation to this matter."

Out of Focus : Consumer Focus Scotland’s “qualified support” for self regulation of lawyers halts Holyrood moves to scrap Solicitors Scotland Act 1980

Consumer Focus Scotland’s support of self regulation closed Holyrood petition, say campaigners. A CLAIM by Consumer Focus Scotland that self regulation of lawyers “brings a number of benefits to consumers” along with a statement by the consumer organisation’s policy of ‘qualified support’ for the Law Society of Scotland’s model of self regulation of the legal profession, is today being blamed by campaigners for the failure earlier this week of a public petition which called for repeal of thirty year old legislation which continues to allow Scottish lawyers to investigate themselves while consumers in England & Wales now have fully independent regulation of legal services via the Legal Ombudsman.

The consumer organisation was also criticised by a solicitor for its apparent lack of understanding of how the Law Society’s Council operates behind closed doors, where Consumer Focus’ expectations that yet another, to-be-announced Law Society run Committee with ‘equal lay membership’ will resolve many of the concerns highlighted in the now closed petition.

Petition PE1388, which called for the repeal of the Solicitors (Scotland) Act 1980 was briefly heard at the Scottish Parliament’s Public Petitions Committee on Tuesday of this week. However, with all respondents to the committee, the Scottish Government (pdf), Law Society of Scotland (pdf) & Consumer Focus Scotland (pdf) failing to support the petition, it was left to one committee member, Robin Harper MSP to call for it’s closure, citing the highly controversial policy shift by Consumer Focus Scotland as one of the chief reasons the committee should not consider the petition any further.

Consumer Focus Scotland’s support for self regulation ‘played key role’ as Robin Harper MSP calls for closure of Petition PE1388 during Tuesday’s committee hearing (Click image to view video footage)

Members of the Petitions Committee were asked by its convener, Rhona Brankin MSP for their views on the petition, resulting in Robin Harper calling for the petition to be closed. Mr Harper said : “Happy to close it under Rule 15.7 Convener, the Scottish Government has indicated it’s got no plans to repeal the Solicitors' (Scotland) Act 1980, it responded to the question raised about the resignation of John McGovern, the repeal of the act is not supported by the Law Society of Scotland and Consumer Focus has a qualified support for self regulation on the grounds it does bring certain benefits to consumers.”

As I reported in early February, Consumer Focus Scotland refused to support the petition calling for repeal of legislation which allows solicitors to regulate & investigate themselves. Consumer Focus’ response came after I reported on the Scottish Government's refusal to repeal the 1980 Act and the Law Society of Scotland’s warning to the Petitions Committee over the petition which I reported on here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government

Consumer Focus Scotland’s response (pdf) to the Petitions Committee, as briefly referred to Mr Harper during Tuesday’s meeting at Holyrood stated : While it is clear there is the potential for conflict between the representative and regulatory functions of the Society, we believe that self-regulation brings a number of benefits to consumers. These include : (i)The regulatory system will be tailor made for the needs and problems of that particular sector, and will reflect inside knowledge about the realities of that sector, (ii)The benchmarking of best practice over and above the basic minimum requirements & (iii)Self-regulation is quicker and less costly to put in place (and adapt to changing needs) than legislation.”

“However, our support of self-regulation by the legal profession (other than for investigation of complaints) is qualified. The SCC produced a good practice guide on effective self-regulation, which made clear that one of the key principles of a credible self-regulatory scheme is independent representation on its governing body.”

Consumer Focus Scotland’s response to the Petitions Committee also talked about the establishment under the Legal Services (Scotland) Act 2010 of a regulatory committee of the Law Society of Scotland with at least a 50% non-solicitor membership and non-solicitor convener, which in the quango’s view would give the Law Society the opportunity to demonstrate clearly that it is acting in the public interest in carrying out its regulatory functions.

Consumer Focus Scotland further stated : “The independence of the regulatory committee will be an important tool in ensuring public confidence in its regulatory functions and we were pleased that provisions were inserted into the 2010 Act to ensure that the Society’s Council must not interfere unduly in the regulatory committee’s business.”

“The provisions of the Solicitors (Scotland) Act 1980 (as amended), which set out the Society’s role in the regulation of solicitors, provide an important consumer protection. It is critical that there is a robust regulatory framework in place to protect consumers should things go wrong. While we have been critical in the past of the Society’s regulatory regime, we believe the changes being introduced by the 2010 Act should lead to increased public confidence, transparency and effectiveness in the regulatory process. This Act is not yet in force, however, and we believe it is important that an opportunity be given to demonstrate whether these changes do lead to such improvements.”

“For this reason we do not support the petition’s suggestion that the Scottish Government should repeal the Solicitors (Scotland) Act 1980 to end self-regulation of the legal profession. Should this restructuring of the Society’s governance arrangements and the application of the regulatory objectives not act to improve public confidence in its regulatory functions, however, we believe the dual regulatory and representative roles of the Society should be reviewed.”

One msp speaking to Diary of Injustice over the failure of Petition PE1388 branded Consumer Focus Scotland’s idea that a Law Society regulatory committee with a 50-50 lay member involvement will restore public confidence in regulation of the legal profession as “nonsense”.

He said : “I think Consumer Focus Scotland seem to have drifted off course from the widely held & clearly justifiable public perception that self regulation is not really an open or honest method of regulating any commercial or public service by any stretch of the imagination. For instance, would Consumer Focus Scotland claim the actions of various bankers were well regulated by their colleagues or the FSA in the light of the banking crisis and massive cuts to public services ?”

He continued : “Consumer Focus as the Scottish Consumer Council supported the introduction of the LPLA Bill which brought the Scottish Legal Complaints Commission in as an independent regulator. However we have recently learned there have been no prosecutions of solicitors under the 2007 LPLA Act and the SLCC which has the same proposed 50-50 lay member complement on its board is itself lacking public confidence. Why on earth would Consumer Focus Scotland believe the same arrangement at the Law Society could resolve the difficulties over regulation or complaints ? This is nonsense.”

There was further support today from a Glasgow solicitor who is keen to see reforms & amendments to the Solicitor’s (Scotland) Act 1980. However, he was severely critical of Consumer Focus Scotland for its apparently lack understanding of how the Law Society Council operates, particularly in the light of recent media attention & high profile resignations from the Law Society's Council over backdoor dealings & censorship of some its own members views on everything from regulation to saving money from the legal aid budget.

He said : “The Consumer Focus plan that an equal membership solicitor-lay committee at the Law Society will solve the ills of complaints will not work and as far as there being no interference from the Law Society’s Council, well I think recent events are enough to show us the people at Consumer Focus have no idea how the Law Society Council functions or operates, which seems to be mostly behind the membership’s backs. I think its a bit airy fairy to suggest the Council wont intervene with a committee, don’t you ?”

He also called for those solicitors who have publicised their disagreements with the Law Society over issues such as regulation & membership requirements to work with consumer campaigners to return the issue to Holyrood

He continued : “I don't think Holyrood can turn its back on this issue so easily, given msps have already intervened on the issue of regulation by way of the Legal Profession & Legal Aid Act. Perhaps there may be a greater chance of success if those within the legal profession who are allegedly disgruntled with the Law Society’s poor representation of its members interests and consumers or campaigners who share similar views over the Society’s responsibilities for regulation can come together to take this issue back to the Scottish Parliament after the elections in May.”

Mr William Burns, the petitioner who brought Petition PE1388 to the Scottish Parliament was scathing of the Petitions Committee’s consideration of the issues. He also revealed the Petitions Committee had refused to allow any oral evidence to be presented on the aims of the petition and public experiences with the Law Society’s control of self regulation of solicitors.

He said : “The result of the approximately 30-second hearing, coupled with the repeated refusal to allow us to give oral evidence before the Public Petitions Committee, confirmed of what I accused the nine members prior to the final hearing, that they ignored our abundance of written evidence in its entirety.”

He continued : “Prior to the decision being taken to close PE1388, I accused the committee members of being elected nobodies taking orders from unelected nobodies in the Scottish Government's legal division; legal collaborators with their comrades in the Law Society. The PPC confirmed this by not denying the accusation, before rushing their decision through on a fast track to close the petition.”

Readers should also note demise of another petition this week which the Law Society unofficially objected to, as Petition 1354 calling for Education of legal & consumer issues in Scottish schools was also closed by the Petitions Committee. Consumer Focus Scotland had rather heavily supported this petition as I reported earlier, HERE, however the Scottish Government and various education bodies said the idea was a non starter and with dwindling media coverage due to some over inflated egos, the petition fell flat on its face.

Petition PE1354 calling for education of legal & consumer issues in Scotland’s schools, closed also, apparently on Law Society orders (Click image to view video coverage)

It should be noted legal insiders have since claimed talks between the Scottish Government and the Law Society of Scotland have taken place on the issues raised in Petition 1354, as the Law Society is rumoured to be seeking to establish itself as the sole educator of legal issues in Scotland.

More worryingly, the petition was also rumoured to have been delayed by the Scottish Parliament, as its own lawyers were involved in an event held jointly with Law Society of Scotland at last year’s Festival of Politics held at Holyrood and chaired by Liz Campbell, the Law Society's director of Education and Training. Those who participated at the event included the latest Law Society Vice President, Austin Lafferty, of Austin Lafferty Solicitors and Law Society Council Member, Gavin Henderson, from the Office of Scottish Parliamentary Counsel and Patrick Gaffney of the Schools Law Web.

Scottish Government insiders have since revealed the Law Society of Scotland is attempting to ensure that the Schools Law Web, which claims its aims to bring teachers and lawyers together in an effort to introduce young people to the legal system and those who work within it, will be the sole provider of education of legal services to young Scots. Parents and those concerned with education may well want to take a closer look at this arrangement as time goes on.

John Lamont MSP, the Scottish Conservatives Justice spokesman & Convener of the Scottish Parliament’s Justice Committee was asked if the Scottish Conservatives have plans to further raise the issue of teaching consumer & legal issues in Scottish schools, given these subjects are apparently taught in England & Wales.

He said : “Those at school could gain hugely from knowledge of consumers’ rights and the roles and responsibilities of the legal profession and as such the Scottish Conservatives have actively encouraged and continued to support the idea.”

He continued : “As there is no national curriculum in Scotland however, there is no obligation on schools to adopt the idea; but we will be doing all that we can to encourage them to adapt citizenship into their pupils’ studies.”

Consumer Focus Scotland were asked today for their comments on the failure of both petitions at the Scottish Parliament.

On the issue of Petition PE1388 and its closure, a spokesperson for Consumer Focus Scotland said : “As detailed in our submission to the Petitions Committee on Petition 1388, we consider that regulation of the legal profession can be split into two broad categories: the complaints handling functions, and other regulatory matters such as regulating admission to the profession and setting and maintaining professional standards.”

The spokesperson continued : “Our primary concern regarding regulation of the legal profession has been with the issue of complaints against the profession. The Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor bodies, published research in 1999 on complaints about solicitors, which revealed a clear perception that the Society was not impartial in its handling of complaints, appearing to take the side of the solicitor. Following the publication of the research, the SCC campaigned for a number of years for the establishment of an independent body to deal with complaints against solicitors, to ensure that the public has confidence in the legal system. As detailed in our evidence on Petition PE1388, Consumer Focus Scotland’s preference would be for the Legal Services Complaints Commission to have responsibility for investigating all complaints against solicitors, not just service complaints.”

On the matter of Petition 1354 and its closure, a spokesperson for Consumer Focus Scotland gave more hope the issue would be pursued as part of its work on civil justice reform.

The spokesperson said : “Consumer Focus Scotland has a keen interest in the issue of pubic legal education. In our report ‘Making Civil Justice Work for Consumers,’ published in March 2010, we identified a public legal education strategy as being the first step in our four-step approach to removing barriers to access to justice. Most recently, the report of the Civil Justice Advisory Group, published by Consumer Focus Scotland in January 2011, made recommendations around public legal education and our consumer agenda for Scottish Parliament, published in February 2011 also highlights this as a key policy issue.

Their spokesperson continued : “While our work plan for 2011-12 is still to be agreed by the Consumer Focus Scotland Board, we expect that the issue of public legal education will be an issue we pursue as part of our work on civil justice next year.”