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

Law Society welcomes new President, firm has links to dishonest Borders solicitors who mishandled wills & executry estates

Law Society of Scotland gets a new President, business as usual. JAMIE MILLAR, a partner with Edinburgh Law Firm Lindsays has taken over from Ian Smart as the new President of the Law Society of Scotland after what has been seen as one of the most problematic periods yet for the Scottish legal profession, who are facing everything from eventual regulatory reform to increased competition in the still-solicitor-monopolised legal services sector.

While the Law Society of Scotland have been kind enough to publicise the change of presidency by focussing on the usual self congratulatory messages, what Drumsheugh Gardens chose not to reveal was regulatory record, or the amount of client complaints made against the law firm of Mr Millar.

Lindsays bought up Borders law firm linked to Law Society-Penman scandal. Lindsays, who, on their website describe themselves as “ a highly-regarded Scottish law firm. We combine high levels of service with legal expertise to tailor the best possible outcomes and results for you, your business, or your family.” purchased a law firm based in Jedburgh, named Turnbull Simpson & Sturrock in early 2007 which were heavily involved in the maladministration of my late father’s estate by Borders solicitor Andrew Penman of Stormonth Darling Solicitors, Kelso, which used to be a partner firm to Turnbull Simpson & Sturrock until the Scotsman newspaper began reporting on the Law Society cover up of my complaint against Mr Penman.

The Law Society’s Philip Yelland personally handled complaints against Penman & Sturrock. As the Scotsman continued to report on the Law Society’s whitewash of the complaints against Mr Penman, Turnbull Simpson & Sturrock’s senior partner, Mr David Sturrock took over the administration of my late father’s estate, only to make the actions of Mr Penman and the accountant/executor Norman Howitt (still working as an accountant at JRW Group) much worse, resulting in several more years of financial damage & negligence which was carefully swept under the carpet by the Law Society of Scotland in the true cover up style we have all come to expect from lawyers investigating themselves.

Jedburgh based Turnbull, Simpson & Sturrock – Complaints of poor & negligent service to clients were whitewashed by Law Society of Scotland. Equally many other complaints made against Turnbull Simpson & Sturrock by locals in Jedburgh & the surrounding area received a similar whitewash treatment, but as with many Borders firms, they only continue to survive because locals have no one else to use when it comes to legal services, hence you can get a situation where one day, someone brings a large ornate gold mantle piece clock into a jewellers for valuation, allegedly owned by a solicitor, but which in reality was stolen from a house of a deceased client whose will was being handled by that very same solicitor who claimed to own it .. and nothing done about the incident (& many others) by the Law Society or the authorities, although in the case of the clock, it was apparently returned to the family after the conscientious jeweller told the relatives of the deceased … (details ring any bells ? – PC)

So, don't expect any changes at the Law Society of Scotland this coming year which might benefit consumers, clients of solicitors, or anyone seeking redress or justice against ‘crooked lawyers’ … its more a case of ‘business as usual, burn the client for as much as you can, and if you do anything bad we will let you get away with it' but you expected me to say that anyway, because its always the case with the Law Society … business as usual …

If you are in the Borders looking for legal services and want any recommendations, well .. I wouldn’t recommend any legal firms in Jedburgh – simply, you’d be much better off just opening your front door and letting the burglars walk into your house .. because you can expect the same treatment if you take on any of the town’s law firms as your legal representatives …

The Law Society of Scotland’s announcement of their latest President, Mr Jamie Millar :

New President of the Law Society of Scotland

Jamie Millar, a partner with Lindsays solicitors, has become the President of the Law Society of Scotland.

Mr Millar (61) has been vice-president since May 2009, and was the Society’s Treasurer for three years before that. He has been a member of the Council for six years and served as a member of a Client relations Committee for seven years from 1997.

A trainee with the then Tindal, Oatts and Rodger, Mr Millar qualified in 1973. He was a partner with the firm from 1975 to 1986. From 1986 to 2006 he was a partner at Bishops and from 2006 he was a partner at Brodies.

Jamie has over thirty years experience as a corporate lawyer specialising in acquistions/mergers, joint ventures, trade associations and corporate governance.

“The Legal Services Bill has been the major focus for the Society in the past year and will continue to be in the coming months as the Society looks at how it could regulate the new business models as well as supporting the profession during their introduction.

“The Society is continuing its modernisation programme to meet the profession’s needs now and into the future, and with that the profession continue to be consulted and asked for feedback as we develop services which will support them during this challenging time.

”Scotland’s solicitors play a major part in Scotland’s economy and I would like that to be recognised. The Society will continue to promote the profession to attract business to Scotland and enhance our economy.”

One of the key areas of work the Society is focusing on is the implementation of its review of education and training in 2010-2011.

Thursday 27 May

To sum up the latest President, his own quote seems appropriate : ”Scotland’s solicitors play a major part in Scotland’s economy and I would like that to be recognised. The Society will continue to promote the profession to attract business to Scotland and enhance our economy.” - Yes they certainly do, although not always in an honest manner, as the complaints statistics over the years have & continue to illustrate ...

Solicitors ‘cover their backs’ as vote ensures Law Society retains representation of legal profession & complaints self-regulation roles

Law Society of Scotland voted to continue representing & regulating Scotland’s 10,000 solicitors. SOLICITORS in Scotland, even the ‘crooked ones’, can sleep safely at night once more, on the announcement the legal profession have voted in favour of the Law Society of Scotland retaining its representative role of lobbying for the interests of Scotland’s 10,000 solicitors over & above anyone else, while also maintaining its self-regulatory role, helping to preserve the legal profession’s control over consumer complaints against Scotland’s notoriously poor quality legal services market, where each year up to 5000 clients register complaints or dissatisfaction against their solicitors & law firms.

The unsurprising news came to light after the results of the Law Society’s latest ‘referendum’ were released, showing 73% of solicitors who voted, voted in favour of the Society maintaining its dual role of representing solicitors best interests, and investigating complaints against their colleagues. 4,138 solicitors (almost 40% of members) voted in the poll in which solicitors were asked to vote on a single question. ‘Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?’ 3037 voted yes and 1101 voted no.

Law Society President Ian Smart. Ian Smart, President of the Law Society of Scotland commenting on the vote said : "The resounding result is a mandate for the Society to continue to represent, regulate and support its members. It gives the Society a green light to continue its programme of change including reform of its governance structure and member services. Solicitors in Scotland have recognized that they benefit from keeping the dual roles of regulation and representation together. The very essence of what it is to be a profession is bound by its ethics and principles as well as any common knowledge and skills.”

Mr Smart continued : “Being part of a profession and a qualified solicitor should remain as a badge of distinction unlike other unregulated legal advisors, and is something we should all be proud of. The Council, committees and staff work tremendously hard on behalf of the profession and the message from a recent survey that the profession would like the Society to do more representational work for members is reflected in the referendum vote as we always believed it would be.”

Translated into plain language for the rest of us, Mr Smart’s statement would read : Solicitors have given the Law Society a green light to continue covering up client complaints, control the individual’s access to justice, and continue to lobby against any reforms which may threaten the legal profession’s dominance over legal services in Scotland.

A legal insider condemned the whole referendum as a product of spin, accusing the Law Society of Scotland of engineering the vote to ensure it retained its power over regulation and the profession at large.

He said : “This referendum was all about ensuring the Law Society of Scotland was going to continue to exist, and for that continued existence, it needed to ensure it retained power over complaints and representing the membership. With the results of the vote, both aims were achieved, and the Law Society goes on to fight another day.”

Meanwhile a Scottish Government insider claimed that senior officials and Ministers at the Justice Department were happy to see the Law Society continue “as-is” because they felt it was easier to deal with the Law Society in its present form rather than what may emerge after its passing – which would account for the Scottish Government’s continual cave-ins (with more, as yet unannounced, to come) over the legal profession’s demands to water down the Legal Services Bill, which will end up about as much use as no use for widening the public’s access to justice in Scotland.

More cover-ups on the regulation side of things can be expected … but it is certainly no great surprise that solicitors have voted for the Law Society to retain regulation & representation of the profession, as both issues are simply too powerful to let slip from the profession’s control, as many previous scandals have demonstrated …