The news from yesterday's Law Society of Scotland "Public Interest" debate at the National Gallery in Scotland, is that lawyers will try to delay as long as possible the OFT's recommendations for opening the legal services market in Scotland.
The Law Society agreed to come up with it's own recommendations by February 2008, while the OFT expects a response from the Scottish Government by December 2007. Of course, the Law Society is used to doing things as it likes, so it will take longer. I hope the OFT call them to book on that one.
While the Law Society still determines the profession's policy towards such issues, well known divisions have emerged with some legal firms preparing for the inevitable when the current monopolistic legal services market, controlled by the Law Society of Scotland forcing the public to use a solicitor or advocate when requiring legal services or access to courts, is finally opened up to new competition.
I am of course, a supporter of opening the legal services market, but not for the aim of generating vast profits for new firms to come in and replace the legal profession in representing clients interests.
I am rather, a supporter of opening the legal services market to ensure that everyone, and I mean e-v-e-r-y-o-n-e, has access to justice and access to legal services, without prejudice, and without having to suffer the whim of the Law Society and lawyers deciding whether a particular individual should have such access to legal services & access to justice - as is presently the case.
There is a problem though, in this rush to open the legal services market, which I have been saying all along - that problem is one of regulation and maintaining quality, trustworthy, accountable and fully regulated legal services offered by the incoming firms to the legal services market.
This problem was highlighted yesterday by the in-house lawyers for the Law Society (wolves within wolves ?) and the Herald newspaper reports it as follows :
"This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.
"You proposed this, you should have some sort of concept about how this will work," Clark was told."
Indeed yes, Which? and yes, the OFT too, do need to tackle the regulatory bull by the horns, and particularly the OFT, must come out of it's shell on regulation and recommend that a fully independent regulatory body be formed to police the new firms coming into the legal services market, rather than allowing the Law Society of Scotland to control or deal with new non-solicitor firms coming into the legal services sector, as it is currently campaigning for. To allow the latter to happen, would equal the disaster which has become the Scottish legal profession.
Why should the Law Society of Scotland, have any right to claim a foothold in regulating an opened legal services market, when its own failures and prejudice against clients and the public in general, have caused the harm to people that it has ?
Why should the Law Society of Scotland be allowed to regulate an opened legal services market, when it has campaigned for so long to keep that market closed for its own members to make as much money as possible ?
Why should the Law Society of Scotland be believed in anything it says, after it's disastrous performance as self regulator of solicitors, and protector (as it claims) of the public's interest in legal affairs ?
The answer of course to those questions is that the Law Society has no right, no claim, no credibility and no purpose to be involved in regulating what will be a new legal services market where many firms, banks, individuals and others will do the work currently undertaken only by lawyers.
The problem is though, that no one seems to be thinking ahead to that very matter, of regulating the incoming firms to the legal services market, and I don't buy arguments that firms, such as Banks, Building Societies, and yes, even the likes of Tesco, can be relied upon to either police themselves or rely on the regulations which govern their respective sectors.
It is time for a new fully independent regulator of legal services in Scotland to emerge, and with the opening of the legal services market, the Justice Secretary, OFT and campaign groups, consumer groups etc must get together and come up with a solution to that, avoiding letting the regulatory operation slide unwillingly back to the Law Society of Scotland, who currently are the only regulators of the legal profession in Scotland.
The easy solution of course, is to give more regulatory powers to the new Scottish Legal Complaints Commission, extending their remit to cover anyone who will act in the legal services market, whether that be a solicitor, banker, accountant, or a qualified individual without a professional affiliation.
However to have power and authority in an opened legal services market, the SLCC will have to be given the full regulatory remit it should have had in the first place, also considering conduct complaints as well as service complaints, the latter of which the SLCC currently can only investigate, after interference from the Law Society during Parliamentary consideration of the Legal Profession & Legal Aid (Scotland) Act 2007, which saw a reduced complaints remit pass to the SLCC, sharing regulation with the Law Society in a distinctly unhappy marriage not in the public interest.
The OFT to a certain extent, understand there needs to be a fully independent regulatory body for legal services, but the problem is getting the OFT to say it.
If they say it for Scotland, they will have to say it for England & Wales, admitting what many a client who has had the misfortune to be forced to make a complaint to the Law Society north or south of the border - and that is that lawyers, regulating complaints against lawyers, does not work, is invariably prejudiced, lacks accountability, lacks transparency, and has no scale of redress for the hurt, financial damage and personal damage that such issues cause the client, while the solicitor happily goes on practicing law.
Again, quoting the Herald newspaper's report on the debate, the OFT were critical of those supporting the current solicitors monopoly on legal services.
"As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.
He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".
Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.
"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said."
Sean Williams is indeed correct in his response.
Why should Scotland's legal services market be protected from competition, if competition was in the interests of the client - which it certainly is, providing wider access to justice and legal services currently denied by solicitors & advocates. Why should the likes of Banks and other 'wealthy organisations' be prohibited from entering the legal services market ?
The answer of course is there is no reason other than filling the pockets of members of the Law Society of Scotland, to maintain the current monopoly on legal services, forcing me & you to use a solicitor to access legal services or get to court. It is in our interests, the client, to open up the legal services market and allow us to choose who will represent our legal affairs - whether that choice be a solicitor, or a legal agent from a bank, or even a supermarket legal service.
As long as strong, effective independent regulation is provided to oversee the opened legal services market, enforcing standards of service and qualification, while giving the public an independent route for pursuing complaints against poor service or conduct issues, and making financial claims for compensation against such poor service or conduct issues, the problems we have seen in the past with the likes of the Law Society of Scotland allowing virtual armies of crooked lawyers to remain in practice will not be an issue.
If of course, the Law Society of Scotland had done all this from the very start, administered complaints properly, dealt with clients who took issue with poor legal service in a non adversarial manner, enforced & maintained standards vigorously, paid compensation to those who were ruined by poor service from solicitors, and worked from a willingness to resolve issues generally, rather than going hammer and tongs against clients at every turn, the issues which now face the legal profession would simply not exist.
How sad particularly, the membership of the legal profession have done nothing to rectify their regulatory body's shortcomings. So much could have been achieved, put right, healed, and confidence restored to legal services in Scotland, but sadly, the impotice for change and reform, has to come from outside.
Following article from the Herald newspaper :
Law Society promises recommendations
PAUL ROGERSON, City Editor
The governing body for Scottish solicitors has pledged to issue landmark recommendations by the end of February which could trigger a revolution in the way legal services are delivered in Scotland.
Speaking at a landmark conference in Edinburgh, Law Society of Scotland president Richard Henderson conceded that the organisation needs to respond quickly to urgent calls for reform of Scotland's closed shop, which prevents organisations such as banks and supermarkets from offering legal services and bans Scots lawyers from seeking external capital or forming partnerships with other professionals.
A society consultation paper discussing the reform options is planned for late October. Henderson said the ruling council plans to issue draft policy recommendations by the end of February.
Yesterday's event at the National Gallery of Scotland, "The Public Interest, Delivering Scottish Legal Services", was acknowledged to be one of the most important forums the society has ever staged.
In England and Wales, reforms collectively dubbed "Tesco Law" are set to take effect in 2010 and Scotland is under pressure to produce its own blueprint for change.
As The Herald reported yesterday, Justice Secretary Kenny MacAskill is obliged to act after the OFT upheld calls by consumer watchdog Which? for reform of Scotland's legal services market.
A "super complaint" lodged with the OFT in May by Which? had recommended the watchdog address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.
MacAskill must respond to the OFT by December. He told yesterday's conference that he expects Scotland's legal profession, not its government, to plot the way forward, but left the society in no doubt that he expects action soon. "You do not have the luxury of endless time to decide," said the Justice Secretary. "I shall be meeting Law Society officials within the week and expect to hear a positive outcome."
The debate around so-called "alternative business structures" is a deeply divisive one among lawyers. There are fears that many small Scots firms could be wiped out by a competitive free-for-all and that permitting external ownership could compromise professional integrity.
This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.
"You proposed this, you should have some sort of concept about how this will work," Clark was told.
As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.
He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".
Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.
"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said.
