Clients must publicise complaints against lawyers 'to name & shame' or Law Society & ‘anti-client’ SLCC ‘will whitewash as usual’ say consumer groups

Complaints against lawyers in Scotland ‘are whitewashed’ without media coverage. MEMBERS OF THE PUBLIC who are forced to complain about their solicitors were today reminded by consumer groups & law reform campaigners their complaints to the Law Society of Scotland and ‘anti-client’ Scottish Legal Complaints Commission, especially complaints involving the most serious issues such as fraud, embezzlement, theft, mishandling of wills etc.. stand a much better chance of being more thoroughly investigated if the media become involved and the case is well publicised, after a string of reports exposing crooked lawyers in the national media were reported to have helped along complaints made by clients of Scottish solicitors while also helping other members of the public fall victim to the same rogue lawyers.

Would you use a lawyer who stole £4million ? The Law Society did nothing until the media exposed the crooked lawyer. The publicity of naming & shaming ‘crooked lawyers’ – which has become common knowledge among many Scots who have been forced to deal with the extremely prejudiced anti-client complaints system operated by both the Law Society of Scotland and now the hapless Scottish Legal Complaints Commission has been held up as an example by consumer officials for all clients who register complaints against their solicitors or law firms, in the firm belief based on firm evidence that media interest in complaints against solicitors speeds up investigations against ‘crooked lawyers’ while also drawing attention to the endemic problems of corruption within Scotland’s legal profession, and the legal profession’s unwillingness to regulate its own members unless headline grabbing stories begin to appear in the national or online media.

Banned solicitor John G.O’Donnell is one of many lawyers in Scotland facing multiple negligence claims – would you use such a lawyer the Law Society seeks to protect ? After continual media coverage relating to the case of the banned-for-now solicitor John G. O’Donnell, which revealed more of the lurid world of Scottish legal regulators & major insurers conspiring to prolong & defeat financial claims made by ruined clients against hundreds of crooked lawyers still allowed to practice in Scotland, an official from one of Scotland’s consumer organisations today urged anyone who has registered a complaint against their lawyer with the Law Society of Scotland or Scottish Legal Complaints Commission to come forward to the national media and publicise the details of their complaints, to protect themselves from any prejudice the legal profession show against investigating their complaint, and help protect others from falling victim to the same fate.

Law Society of Scotland & Scottish Legal Complaints Commission both branded prejudiced, anti-client by consumer groups & campaigners. The official said : “Both the Law Society of Scotland & Scottish Legal Complaints Commission have consistently demonstrated in thousands of complaints investigations they are too biased towards the legal profession to be of any benefit to members of the public who are placed in a position by their legal representatives of having to complain to either of these regulators.”

She continued : “I urge all those consumers who have made complaints to the Law Society of Scotland or SLCC to publicise their complaints along with the names of the solicitors & law firms involved to force the regulators to pay more attention to complaints rather than constantly seeking to cover up even the worst acts of their members against clients by doing nothing over the thousands of complaints made against members of the legal profession each year in Scotland.”

Frauds against wills & executry estates are a favourite targets for lawyers who often get away with stealing from deceased clients after a Law Society ‘complaints whitewash’. A client whose complaint against his family lawyer has been with the Law Society for over two years with as yet no action after over £100,000 had gone missing from the client’s late mother’s will said the only way to get some justice against lawyers who steal is to go public and keep the pressure on the lawyer and the Law Society to do something.

He said : “Despite my complaint being watertight and the bank details showing the solicitor had taken the money which has now been shown to have ended up in his own law firm’s accounts to prop up his supposedly ailing law firm, nothing has been done two years later and I think the Law Society are just going to whitewash the whole thing. On top of that he has been allowed to practice all this time so god knows what he has been doing with other clients money.”

An individual who was formerly employed by an independent regulator of complaints against solicitors said he welcomed the call for members of the public to publicise their complaints against solicitors.

He said : “People who make complaints against their solicitors have no idea how biased & secretive the legal profession are when it comes to investigating their own.”

He continued : “Fully independent regulation of solicitors will only come with a steady stream of media attention to the issue highlighting the sheer numbers & similar types of complaints made by clients against identifiable solicitors & law firms. The Law Society & SLCC know this to be the case which is why both keep a lid of confidentiality on all complaints they receive.

"Having spent some of my employed life in the field of complaints regulation I would advise anyone making a complaint against a solicitor to seek media interest when they submit their complaint to the Law Society or Scottish Legal Complaints Commission.”

Even complaints which involve criminal allegations of a sexual nature against solicitors are buried by the legal profession unless media attention ensues. As media reports have already revealed, complaints or scandals involving members of the legal profession are not limited to financial matters as revelations of some complaints to the Law Society show members of the public have been forced to complain against inappropriate conduct of their solicitors, where in one shocking instance now coming to light, a married solicitor & father of two began pestering the young son of a client to attend clandestine meetings with a sexual intent. In this particular case, as yet unreported in the media, it appears the allegations have not been reported to the authorities by the Law Society, even though the solicitor concerned - a ‘leading partner’ in a famous Scottish law firm used by many of Scotland’s top businessmen, has faced similar allegations in the past of seeking inappropriate contact with children.

Media exposure of the Law Society’s efforts to protect crooked Kelso solicitor Andrew Penman led to long road to reform of complaints against Scottish solicitors. Admittedly in some cases, media coverage can take years to have any effect on a case, where in my own particular complaint, the Scotsman’s (of old) exposure of the Law Society of Scotland’s efforts to protect crooked Borders lawyer Andrew Penman of Stormonth Darling Solicitors, Kelso from a prosecution before the Scottish Solicitors Discipline Tribunal, eventually led to many reforms of regulation of complaints against solicitors in Scotland.

Law Society Council member James Ness prevented SSDT prosecution of Andrew Penman. While the media coverage in my own case did not change the Law Society’s cover up of the Penman case, nor did it resolve the issue of the senior Law Society Council members who halted the prosecution of Mr Penman before the Discipline Tribunal on everything from deceiving the Inland Revenue to Banks, the publicity on Andrew Penman & Stormonth Darling helped publicise many other serious complaints against rogue lawyers in Scotland, also helping a few members of the public to avoid publicly identified lawyers & law firms associated with complaints & corrupt practices, a lesson which should be learned by all.

Justice Secretary Kenny MacAskill compromised SLCC & legislative reforms to complaints against solicitors. Lessons on reforming complaints against solicitors must also be learned, after witnessing the mess of the Legal Profession & Legal Aid (Scotland) Act, considered by the Scottish Parliament in the summer of 2006, and eventually passed at the end of that year. The regulatory aims & reforms of the LPLA Act sadly now lie in dust, after the SNP minority administration which came into existence in May 2007, completely compromised most of the planned reforms of the LPLA Act, with the Justice Secretary, Kenny MacAskill going onto appoint Law Society stooges to what was to have been an independent Scottish Legal Complaints Commission. The SLCC as we all now know, has turned into little more than an anti-client front company for the Law Society itself, demonstrating well that lawyers cannot be involved in regulatory role against themselves in the future if reforms to regulation are to succeed in giving the public unrivalled consumer protection from Scotland’s notoriously poor legal services sector.

The Scottish Government are planning to approve the Law Society to continue regulating complaints in the new Legal Services Bill. Despite the infamous history of corrupt self regulation of the legal profession in Scotland, where lawyers have covered up for lawyers for decades, the Scottish Government are planning to allow the Law Society of Scotland as an ‘approved regulator’ to oversee complaints against even non-lawyers in Scotland’s ‘expanded’ legal services market to be ushered in after the passage of the Legal Services Bill, once aimed at expanding access to justice in Scotland but now viewed as little more than a bill aimed at consolidating the legal profession’s grip on Scots access to legal services. Such plans will only increase the cover ups associated with lawyers regulating themselves, while it is likely the non-lawyers will face more harsh treatment in an attempt by the legal profession to quash any competition in the legal services sector.

So to all those seeking advice on whether it would be best to publish your complaints against your solicitors before going to the Law Society of Scotland & Scottish Legal Complaints Commission, the answer is a firm YES .. however, if you do, seek out a newspaper with a decent circulation who will investigate and report on the story. If readers want recommendations on which newspaper to approach, please ask questions in the comments section.

Remember readers, wider publication of your complaint against your solicitor will help the progress of your own complaint as well as help to prevent others from falling victim to the same actions taken against you by your own solicitor, who may well have done the same to many other clients ... You can all help end the cycle of 'crooked lawyers, crooked self regulation' by wider publication of complaints against solicitors.

Scottish Government plan to regulate non-lawyer 'will writers' may see Law Society regulate all complaints against mishandled wills, legal business

Community Safety Minister Fergus Ewing announces regulation for non-lawyer will writers. FERGUS EWING, the Scottish Government’s Community Safety Minister standing in for the Justice Secretary Kenny MacAskill announced the latest round of amendments to the Legal Services (Scotland) Bill which include the regulation of non-lawyer will writers in Scotland, some of whom have been targeting people with the same sharp practices so often employed by solicitors & law firms who, as the complaints statistics reflect, still represent the greatest threat to deceased clients wills & executry estates.

However, there is a deadly twist in the plans announced by the Scottish Government, which may well end up ensuring any non-lawyer will writing services and indeed any new entrants to Scotland’s legal services market, are regulated by the Law Society of Scotland, as no other regulatory bodies have indicated they intend apply to Scottish Ministers to be ‘approved regulators’ for the expanded legal services market which the Legal Services (Scotland) Bill is designed to reform, aiming to bringing wider access to justice for Scots consumers of legal services, many of which are currently available through solicitor members of the Law Society of Scotland.

Accountants regulator ICAS had intended to apply as an ‘approved regulator’ although the Law Society are now viewed as the ‘favoured applicant’ by Scottish Ministers. Initially the Institute of Chartered Accountants of Scotland (ICAS) had announced they were considering making a bid to become an ‘approved’ regulator in the reformed legal services market, however ICAS have not updated their position on the issue, and with the dithering, anti-client Scottish Legal Complaints Commission also undecided about whether it will apply to the Scottish Government as an ‘approved regulator’ of legal services, the only contender for regulating any new entrants to Scotland’s currently solicitor only legal services sector is the Law Society itself, leaving the possibility the infamous solicitor’s self regulator may well use its dominant position to force out new entrants to the legal services market it may see as competition to its own solicitor members.

As I am in favour of regulating non-lawyer will writers, I have no huge problems with the Scottish Government’s proposals, however the fact nothing has been done to protect the public from the Law Society of Scotland’s poor regulation of solicitors & law firms who in many cases, deliberately mishandle a deceased client’s estate simply to ramp up their own firm’s profits & personal finance deals with some of the major High Street banks on the back of assets of deceased clients, means there is still effectively no protection for Scots consumers when it comes to wills & executries.

Allowing the Law Society to regulate the entire wills & executries sector where the Law Society has already proved it cannot regulate its own member’s conduct on handling wills & the assets of deceased clients, will not improve consumer protection nor help reduce the huge amount of will fraud in Scotland, whether such frauds are committed by lawyers, or non-lawyers.

Law Society of Scotland covers up too many complaints against wills & executry estates to protect rogue lawyers. It all comes down to poor regulation, and with estimates of solicitors siphoning off tens of millions of pounds a year from wills & executry estates in Scotland, and getting away with it because the Law Society continually whitewashes complaints made by families, beneficiaries and sometimes even charities, then until a fully independent regulator is created to ensure complaints against all legal services, including particularly wills & executries, the mere window dressing for one part of the industry, while leaving the lion’s share of will handling to the even worse regulated legal profession, will do nothing to protect members of the public and their bequests to families & friends etc …

The Scottish Government’s proposals, announced earlier this week by Community Safety Minister Fergus Ewing are as follows : Legal Services Bill to regulate non-lawyer will writers with the actual amendments lodged at the Scottish Parliament : Amendments to Legal Services Bill : non-lawyer will writers (pdf)

Scottish Government announcement on non-lawyer will writer regulation. The proposed amendment to the Legal Services (Scotland) Bill follows a consultation process, and would apply a set of regulatory rules, enforcement measures and sanctions to ensure non-lawyer will writers conform to acceptable industry practice. It will bring to an end an era where consumers have been vulnerable to non-regulated practices which are often unnecessarily expensive (the same couldn’t happen in a solicitor’s office, of course …)

One example of this was when an elderly client was charged £1,000 for a straightforward will in a non inheritance tax estate. That client was driven to her bank by the will writer to withdraw the money in cash to pay the fee. In another case, consumers wanting a will have been sold specialised services they do not require. In some cases they are being persuaded to pay up to £2,400 when a simple will costing £150 would suffice. (similar stories have been told where solicitors have done the same to their clients …)

Community Safety Minister Fergus Ewing said: "That is why we intend to regulate non-lawyer will writers. Yesterday, I lodged amendments to the Legal Services (Scotland) Bill to provide for such regulation. A number of persons and organisations have made representations to us about non-lawyer will writers, providing examples of poor practice. These include lack of skill and competence; "cold calling"; and advice based on English law. We are very concerned that some non-lawyer will writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland.”

"The regulation will continue to allow non-lawyers to provide a will writing service, but will protect consumers by ensuring that such will writers are subject to robust regulatory rules, enforcement measures and sanctions. However, we will not regulate individuals preparing their own will, with or without a DIY pack, including "deathbed" wills, or other persons providing a free advice service."

The Scottish Government consultation on the regulation of non-lawyer will writers took place between December 18, 2009 and February 19, 2010. The consultation paper sought views on the possible regulation of non-lawyer will writers in Scotland. The Legal Services (Scotland) Bill ("the Bill"), which was introduced in the Scottish Parliament on September 30, 2009, provides a legislative vehicle to provide for regulation of non-lawyer will writer services in Scotland. Following representations made to it, the Scottish Government is concerned that some non-lawyer will writers may be exploiting the lack of regulation to the detriment of the consumer in Scotland.

As well as individual instances of poor practice, it is possible to identify some main themes, including the following:

* Lack of skill and competence * Poor knowledge of inheritance tax * Advice based on English law * Low advertised costs translating into substantial fees through bait and switch and tying in of other services * Cold calling and unsolicited mail * Lack of professional indemnity insurance * Poor storage of wills

The consultation responses indicated that there is almost overwhelming support for regulation of non-lawyer will writers amongst the respondents. Indeed, 45 out of the 48 respondents are in favour of such regulation. As to the method of regulation, the vast majority of respondents are in favour of using the same model as outlined in Part 3 of the Bill. The regulation will continue to allow non-lawyers to provide a will writing service, but, at the same time, will protect consumers, by providing a set of regulatory rules, enforcement measures and sanctions that would apply to such non-lawyers. It is not the aim to regulate individuals preparing their own will, with or without a DIY pack, including "deathbed" wills, or other persons providing a free advice service.

Michael Clancy, the Law Society’s Director of ‘Law Reform’. Michael Clancy of the Law Society unsurprisingly supported the Scottish Government’s plans to regulate non-lawyer will writers, as the plans had come about from orders representations made by the Law Society of Scotland to Scottish Ministers, where the society clearly wishes to retain it’s regulatory role & power over all entrants to Scotland’s legal services market. Mr Clancy said : “We’re very pleased that the Scottish Government has taken on board the representations made by the Society and others about the regulation of will writers. We firmly believe that non-lawyer will writers who provide a service for a fee should be regulated to ensure that members of the public are protected and can be sure that they are getting good advice at a reasonable cost.”

Since members of the public are currently not protected from solicitors mishandling wills, nor are clients getting good advice from solicitors at reasonable costs, how would allowing the Law Society to regulate non-lawyers improve consumer protection ? The answer is clearly it wouldn't, but it would of course, maintain the Law Society’s power base and hold over the Scottish legal services market, which the Law Society is clearly intent on holding onto, at whatever cost.

As far as the individual instances of poor practice listed by the Scottish Government in their press release are concerned, most or all of the instances quoted in reference to non-lawyer will writers also apply to the services of a solicitor, which begs the question why the Scottish Government are content for the Law Society of Scotland to poorly regulate thousands of complaints about solicitors mishandling wills & estates, while introducing new regulation to oversee non-lawyer will writers.

Lack of skill & competence - which many solicitors seem to suffer from when they are found out after robbing a deceased’s estate of a few hundred thousand pounds for their own personal benefit. Indeed, lack of skill & competence is one of the favourite excuses for the Law Society of Scotland to cover such cases up, with a slap on the wrist for the solicitor concerned, and off he goes to work once again to ruin someone else’s will .. and again, and again, and again …

Poor knowledge of inheritance tax – again, another rampant issue in the legal profession, and speaking from experience in the case of Borders solicitor Andrew Penman, of Stormonth Darling solicitors Kelso, who ignored up to eleven letters from the Inland Revenue on inheritance tax, prompting the Inland Revenue to contact me directly, well … what more needs to be said ?

Low advertised costs translating into substantial fees through bait and switch and tying in of other services –The same happens in a solicitors office when it comes to dealing with a will. Just watch how quickly huge overdraft accounts are opened on a deceased’s client’s estate with the solicitor’s bank, gaining the solicitor cheap personal finance deals using the deceased’s client’s assets as cover in what is one of the most common ‘scams’ known in executry work.

Lack of Professional Indemnity Insurance – which solicitors do have, in terms of the Master Insurance Policy, run by the US owned insurers Marsh, who pled guilty to fraud & bid rigging criminal charges in the USA along with Royal Sun Alliance on behalf of the Law Society of Scotland. However, the Master Policy hardly ever pays out, and if victims of solicitor will fraud try and make a claim against either the Master Policy for negligence, or the equally corrupt “Guarantee Fund” compensation scheme run by the Law Society, sheer hell is unleashed, making sure claims fail on a routine basis.

It should also be noted I reported earlier on the personal cost of trying to claim against solicitors Professional Indemnity Insurance which revealed Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Poor storage of wills – indeed, I could write about hundreds of solicitors who are or have been the subject of complaints to the Law Society where original wills have went missing, to be replaced with doctored versions giving intricate & costly duties to the solicitor never intended by the deceased client, and in some bizarre cases, even leaving legacies to the solicitors themselves.

I have reported in earlier articles on the difficulties & dangers of allowing a solicitor to handle wills & executry work, particularly focussing on one of the primary dangers of making a solicitor an executor of a will – something I would not recommend anyone ever try as such a decision will lead to many problems for those left behind to deal with. You can read my earlier report on this topic here : Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints

Reprinted from my earlier report are a few examples of solicitors defrauding wills & executry estates, which it appears the Scottish Government are still content to allow by leaving regulation of lawyers in the hands of lawyers, and thus denying the Scots public the total consumer protection of fully independent regulation of legal services in Scotland.

You decide who should be protected from whom after reading these examples :

Example 1

Solicitor ripped off dead client & family, paid huge interest to his own Bank. An elderly man recently deceased had left his home, possessions & sizeable investments to his wife & family in what he obviously thought was a simple straight forward will, making the mistake of appointing his solicitor as his executor. The first thing the solicitor did was open up three overdraft accounts with a local High Street bank which coincidentally, the solicitor also deals with on a business & personal basis. Over the three years the solicitor took to process his deceased client's estate, the High Street Bank received a staggering £27,000 in interest alone on the overdraft accounts, despite there being no debts on the deceased’s estate. Documents also now reveal the solicitor negotiated some cheap personal finance from the same High Street bank to purchase a second home.

The widow of the deceased, upon being told the investments in the will had been cut in value by three quarters, made a complaint to the Law Society of Scotland after discovering through careful investigation her late husband's investments had been changed around by the solicitor at his own discretion rather than being realised and handed over to the family as per the instructions contained in the will. Now the Law Society have backed the solicitor against the family, despite a £250,000 loss being incurred in the late husband's investments, together with the loss of title deeds to the home in which the widow still lives, while it seems the solicitor has experienced a remarkable increase in his own personal wealth, along with 3 recent top of the range cars.

Example 2

Solicitor & accountant ripped off client’s charitable donations via her will. The result of the charitable intentions of a deceased elderly nurse who bequeathed her substantial entire savings including her house, in total valued at over £2 million to charitable causes, has so far resulted in not one of her wishes being respected by the solicitor and a long time friend, an accountant, she made executors of her will.

Charities who were named in the initial will have, after two years, yet to receive a penny, while again, a local High Street Bank has received over £18,000 in interest on several overdraft accounts opened by the solicitor allegedly to pay debts on the estate which never existed. Meanwhile the solicitor has also bought himself a second house, as has the deceased's' long time friend' the accountant, and the charities who were due to receive sums of money are now questioning whether they will receive anything, given a recent letter to one charity from the solicitor suggesting "there was little left in the estate to cover the charitable bequests" - this despite the fact the nurse had no debts whatsoever, and owned her own home.

The paralegal who brought this case to the attention of Law Society of Scotland has been sacked from solicitor’s law firm, and since there is no one to independently monitor how the solicitor and accountant, both acting as executor, have so fraudulently mishandled the estate of their client (and victim) nothing will probably be done against those who have so obviously plundered the estate of their dead client. Even the charities themselves are apparently reluctant to make a complaint to the Law Society of Scotland, possibly because a fleet of solicitors wives and family relatives sit on one of the charities concerned.

Example 3

Solicitor stole 400k from will, no action by Law Society. A solicitor named as executor in an estate of an elderly unmarried man who had no surviving family, dying three years ago, tore up the original will of his client, and replaced it with one he had created to cover up the fact that a whopping £400,000 has disappeared from his deceased client's bank accounts.

The will, which left a substantial bequest to a care home managed by the deceased's local authority, has also seen the usual huge payments of interest fees to a local High Street Bank, in one case alone of £14,000 of pure interest, the same bank handling the solicitor's law firm accounts.

The local authority had questioned when the bequest was to be made over to them, after being told by the solicitor there was little left to pay out his client’s wishes. The Law Society are supposedly still looking into the case, with as yet no action against the solicitor concerned.

Example 4

Solicitor acting as executor stole over £30,000 from children’s trust. A deceased soldier who appointed his lawyer as executor, leaving everything to his wife & children, has unwittingly placed his family in the position of having to endure sickening refusals by the legal profession to do anything to recover over £30,000 of investments which were placed in a trust by the deceased client, for his children. The solicitor, acting as executor, cashed in the trust and used it to pay off gambling debts which everyone including the Law Society is now trying cover up.

If the Scottish Government are keen to protect members of the public and their wills, taking self regulation away from the legal profession, who appear to be causing most of the damage against people’s wills should be a primary objective of the Legal Services Bill …

Recession brings 24% rise in Civil Legal Aid applications, clients struggle with debt, mortgages, as solicitors demand secret cash to continue cases

Scottish Legal Aid Board reports largest increase in Civil Legal Aid applications in 10 years. It should come as no surprise during a recession, when financial pressures hit home, the public are increasingly driven to apply for civil legal aid to deal with issues such as mortgage rights, financial debts, and family issues so reports the Scottish Legal Aid Board earlier this week, revealing Civil Legal Aid applications in Scotland have soared 24% in the last year.

Harbouring fraudsters - The Law Society & SLCC have no policy for reporting lawyers who defraud legal aid. However, while Civil Legal Aid applications are up, complaints against solicitors who are in some cases, apparently demanding cash sums from clients to continue representing their legal interests, while their clients cases are legal aid funded are on the rise. Shockingly, the Law Society of Scotland are as reluctant as ever to report their own member solicitors who stand accused by clients of defrauding legal aid funds, with this appalling situation made even worse by the hapless Scottish Legal Complaints Commission, which, even two years after it came into existence as the single gateway for complaints against members of the Scottish legal profession, has no policy in place to alert the Scottish Legal Aid Board of allegations of legal aid fraud made in complaints to the SLCC by members of the public.

If readers feel they have problems with their solicitor and their legal aid funded case, please don't hesitate to report the matter to this blog and the information will be passed to the Scottish Legal Aid Board’s enforcement & compliance unit either in confidence, or will be published if the individual indicates they wish publicity for their predicament.

Press Release from the Scottish Legal Aid Board : 24% increase in civil legal aid applications - highest number in a decade (pdf)

Civil legal aid applications have increased by 24% over the last year to 22,000, the highest number in a decade. This is on top of a 12% increase in the previous year.Civil Advice and Assistance cases increased by 5% on last year to 95,000, following a 4% increase in the previous year. There have been substantial increases across a range of case types. Family cases increased by almost 3,000 or 27% to over 13,600. Debt cases rose by 29% and mortgage rights cases by 33%.

Lindsay Montgomery CBE, Chief Executive of the Scottish Legal Aid Board said :“It is clear that solicitors have responded to the larger number of people needing help during the recession as financial and other pressures increase on families. This substantial increase in applications has been very challenging for the Board, however we have managed to achieve our performance targets without any increase to our administrative budget.”

During 2008‐2009 there was a 4% increase in the number of branches or outlets of firms providing civil legal assistance to #695 (Dec. 2009).

A recent independent survey of applicants carried out for the Board indicated very high levels of satisfaction with civil legal assistance; 84% of applicants were satisfied with the overall experience of the full legal aid system (only 3% were actually dissatisfied). A small proportion of applicants (5%) indicated that they had experienced some difficulty in finding a solicitor.

A leaked letter from ex Law Society Chief Douglas Mill to SLAB showed suing a solicitor or another professional for negligence with legal aid funds is difficult, virtually impossible. The Board encourages potential applicants looking for a civil legal aid solicitor to use the “Find your nearest solicitor” facility on the Board’s website at http://www.slab.org.uk. If potential applicants encounter difficulties in finding a legal aid solicitor we would like to hear from them and they can contact the Board’s legal aid information line on 0845 122 8686 for help in finding their nearest legal aid solicitor. The Board monitors the supply of firms registered to provide civil legal assistance to minimise the risk of people encountering difficulties in finding a legal aid solicitor.

Lindsay Montgomery adds : “There is a large and committed network of solicitors working on civil legal aid cases. Most communities have access to quality assured local legal aid solicitors covering a wide range of areas of law. In most areas firms are doing more civil legal aid work than before which is very encouraging.”

Although the vast majority of civil legal aid solicitors are in private practice or in Law Centres, the Board also directly employs a number of solicitors in its small network of Civil Legal Assistance Offices (CLAOs) around Scotland.

Lindsay Montgomery adds, “The CLAOs bolster local legal assistance provision, complementing but not competing with private practice firms. There is joint working with referral of clients between the two so improving access to assistance.”

In addition, the Board also funds a range of projects around the country to enhance legal advice services for people affected by the economic downturn, targeting issues such as repossession and debt, via £2 m of Scottish Government funding. The Board has also taken over and increased funding of In‐Court Advice projects. These offer a mix of advice and representation to people who turn up at court and have not been able to access other assistance or have been referred by other agencies before their court date, and are particularly important in repossession and debt cases.

Legal aid is help towards the costs of legal advice and representation, for those who qualify, paid for out of public funds. It is designed to help individuals on low and modest incomes gain access to the legal system. There are two main types of legal assistance: advice and assistance and legal aid. Together these are called legal assistance. Legal aid may be free, or someone may have to pay towards the cost of their case, for example through paying a contribution or from the money or property that they win or keep as a result of their legal action. Legal aid is accessed [exclusively – so no access to justice for you if you cant obtain one] through a solicitor. Unlike most public expenditure, the legal aid fund is not cash limited. The Scottish Government will provide the Board with the funds required to meet the cost of cases which have been granted.

Last year (2008‐2009) total net expenditure on civil legal assistance was £42.6m.

Civil Legal Assistance Offices :

The Inverness office in February 2008, serving Highland, Moray, Western Isles, Orkney and Shetland areas. It provides advice and representation in relation to a broad range of civil issues, including family matters. Over the past year the Board has also opened up offices to cover Aberdeen and Aberdeenshire and Edinburgh and the Lothians. These mainly help with issues related to the economic downturn such as housing and debt (and are in addition to those private firms in the areas that carry out civil legal aid work).

Questions remain over access, costs & funding of McKenzie Friends in Scottish Courts as Rules Council minutes reveal ‘devil in the detail’

Scotland’s Lord President Lord Hamilton. As the minutes of the most recent meeting of the Court of Session Rules Council were published earlier this week, further details emerged on the discussions between members of Scotland’s judiciary & legal profession over the now confirmed introduction of McKenzie Friends, or as the Lord President prefers to call them “Lay Assistants” to Scotland’s courts. Details of the meeting included how the now signed Act of Sederunt allowing McKenzie Friends would take shape, although mention of exactly why it has taken forty years and a petition to the Scottish Parliament) to bring lay assistants to Scottish Courts was unsurprisingly avoided.

The Lord Justice Clerk, Lord Gill who recommended McKenzie Friends with a right of audience be introduced to Scotland was present at Rules Council meeting. During the Court of Session Rules Council meeting which took place on 10 May 2010, those present, Lord Hamilton & Lord Reed, Ronnie Clancy QC, Graeme Hawkes (Advocate) from the Faculty of Advocates, along with four members of the Law Society of Scotland, Gordon Keyden (Solicitor), Robin Macpherson (Solicitor), Duncan Murray (Solicitor) & Sydney Smith (Solicitor) discussed the McKenzie Friend issue, going onto acknowledge the significant alteration to lay courtroom assistance in Scottish courts had ‘been inspired’ by a public petition at the Scottish Parliament. Others present included the Lord Justice Clerk, Lord Gill (who earlier recommended McKenzie Friends be introduced to Scottish Courts via his Civil Courts Review), & Colin McKay of the Scottish Government’s Constitution, Law and Courts Directorate.

The published minutes (pdf) reflected the following discussions :

6.1 The Council considered a draft set of rules relating to “McKenzie Friends”. The Council was advised that the draft rules had been inspired by a petition which is currently being considered by the Public Petitions Committee at the Scottish Parliament. The petition urges the introduction of a facility in the Scottish courts whereby a party litigant may be assisted by a lay supporter.

6.2 The Council noted that the draft rules before it did not seek to confer any rights of audience on lay persons. It also noted that the Civil Courts Review Report had included a recommendation for the conferral of such a right. The Council was advised that it was not thought that this recommendation would be capable of implementation by rules of court without further primary legislation. However, the Council noted that it was understood that this recommendation was under consideration for early implementation by the Scottish Government.

6.3 In relation to the provision of lay assistance to party litigants through means other than addressing the court, the Council noted the terms of correspondence between the Public Petitions Committee and the Lord President. It was noted that the Lord President had invited Lord Reed and Lord Hodge, as judges with responsibility for administration of Court of Session business, to consider the matter and make recommendations. Following on from recommendations made by Lord Reed and Lord Hodge, the Lord President had agreed that it would be appropriate to make an Act of Sederunt amending the rules in certain respects to acknowledge and regulate lay assistance. The draft provisions before the Council sought to achieve this.

6.4 The Council noted that the Public Petitions Committee at the Scottish Parliament had indicated that it was content for the Lord President to proceed to make the court rules on this matter. It was noted that the latest draft of the rules had been adjusted to take into account points that had been recently been raised by the Committee in correspondence.

6.5 The Council discussed the extent to which the provisions should be included in the body of the rules or by declaration in a form. It also discussed the extent to which the draft rules would discourage or prevent the provision of lay assistance by persons who might be unsuitable for the role. It was agreed that the Private Office would consider the Council’s discussions on these matters in finalising the Chapter which is to be inserted into the Rules.

I reported on the above meeting in an earlier article, published here : McKenzie Friend ‘success’ for Scotland as Court of Session Rules Council signals June 2010 implementation after 40 years of Law Society opposition and you can read more on the rules in the Act of Sederunt, which resulted from the Court of Session Rules Council meeting in a further article here : McKenzie Friend ‘Act of Sederunt’ published, Lord President enforces strict conditions, calls Scots non-lawyer courtroom helpers “Lay Assistants”

For further reference, readers should also consider Scotland’s First McKenzie Friend in a Civil Court, granted by Lord Woolman in M.Wilson v North Lanarkshire Council & Others (Case ref : A1628/01) which I reported on here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

While the Act of Sederunt on ‘Lay Assistants’ is due to come into force around 15 June 2010, according to legal insiders, there are still many questions remaining over what will happen if McKenzie Friends are refused, and particularly in which types of cases McKenzie Friends, or “Lay Assistants” may be refused, together with what rights of appeal party litigants will have over a judge’s decision to refuse the use of a McKenzie Friend, or “Lay Assistant”.

A solicitor said this afternoon there should be a properly laid down procedure for right of appeal if a litigant’s request for a lay assistant is refused, as not having one will inevitably tie up court time and confuse party litigants even further.

It has also emerged today that the cost of applying for a McKenzie Friend (Lay Assistant) in a Scottish court could be at least £45, being the price of a motion in the Court of Session. However, according to litigants with cases already in the Court of Session, party litigants may well be looking at about £100 (including the motion fee) if travelling to & from the Court of Session in Edinburgh is required, with additional costs of another £150 up to as much as £750 if a party litigant is required to pay the other sides costs, depending on how long the hearing lasts.

An official with one of Scotland’s Consumer organisations expressed her fears the costs of McKenzie Friend applications may be an obstruction to unrepresented litigants obtaining the necessary help in Scotland’s Civil Courts.

The official said : “Given the use of a McKenzie Friend would greatly speed up the court process in cases where the party litigant is often unrepresented due to a lack of funds and therefore an inability to obtain legal representation, I believe there should be a review of the charges on lay assistance, to encourage the wider use of McKenzie Friends in Scotland’s courts.

She continued : “However, if the report of £45 is accurate, I think the Scottish Court Service could do some good by halving this figure at least, to lessen the burden on party litigants who are already struggling in civil court cases which could be progressed much faster if a McKenzie Friend were there to help.”

While the issue of the cost of applying for a McKenzie Friend in Scotland has been raised, there also remains the thorny issues of McKenzie Friends or ‘Lay Assistants’ in Scotland being allowed to charge for their services, a right which is supported by case law in England & Wales.

While the Lord President has been adamant in his Act of Sederunt that McKenzie Friends or “Lay Assistants” cannot charge for their services, legal insiders have condemned Lord Hamilton’s proposals on the remuneration question as “unenforceable”, with MSPs raising the issue in the Scottish Parliament, particularly given the terms of the non-remuneration policy, which may incur significant disadvantages, to the point of exclusion, of any lay assistants who may be employed by a Non Governmental Organisation or a Charity.

The Petitions Committee of the Scottish Parliament will again discuss Petition 1247 later in the summer.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland