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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pt 1 Pt 2 Pt 3

Pt 4 Pt 5 Pt 6

Pt 7

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

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

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

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

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

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

Mr Smart stated the Law Society’s priorities are :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Services (Scotland) Bill - written submissions received

LS1 Scottish Police Federation (10KB pdf)

LS2 Faculty of Advocates (25KB pdf)

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

LS4 Which? (20KB pdf)

LS5 Thompsons Solicitors (37KB pdf)

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

LS7 Scottish Law Agents Society (54KB pdf)

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

LS9 Unite Trade Union Scottish Region (30KB pdf)

LS10 Chartered Institute of Patent Attorneys (21KB pdf)

LS11 Citizens Advice Scotland (33KB pdf)

LS12 Office of Fair Trading (60KB pdf)

LS13 Professor Alan Paterson (41KB pdf)

LS14 Scottish Legal Complaints Commission (17KB pdf)

LS15 Consumer Focus Scotland (57KB pdf)

LS16 WS Society (73KB pdf)

LS17 Law Society of Scotland (80KB pdf)

LS18 Scottish Legal Aid Board (22KB pdf)

LS19 Society of Solicitor Advocates (28KB pdf)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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