Clients who have made complaints to the Law Society of Scotland against their lawyer fiddling the books or ripping them off, have often faced difficulty in obtaining legal representation. The nail in the coffin for any such client, is when they try to use a lawyer to sue their crooked lawyer – a guarantee of professional discrimination in any future legal issue, be that criminal or civil.
However, there are many more instances where either a client on a civil matter, or a suspect charged with a criminal offence, will also find it difficult to get legal representation – and today’s Scotsman reports on one such incident, which is certainly typical of the legal profession – all boiling down to greed, and who gets the legal aid handout, of course.
Why does this happen ? Well, it happens simply because there is little choice for a client in terms of court representation – you have to have a solicitor, or an advocate (who has to be instructed by a solicitor) or nothing.
There have of course, been laws on the books for years, which would have allowed a much wider choice of legal representation for clients who face professional prejudice & discrimination for a variety of motives, but as I have reported before, these particular laws, were never enacted by the Scottish Executive, due to lobbying by the legal profession to protect their business markets and keep the legal aid & court access for themselves;
I covered issues related to the restriction of legal representation & attempts to reveal why particular parts of law had been held back, here :
Kenny MacAskill MSP (Justice) is quoted in today’s Scotsman article saying : “This is an area that must be reviewed. Clearly it can cause great prejudice where an individual may not be able to obtain any representation. There must be a fair way of dividing up the fee so that justice is served and nobody loses out.”
With all respect, clients having difficulty in obtaining legal representation & encountering professional prejudice, for a variety of motives, including greed of course, is a common occurrence – and we all know it.
There are thousands of constituents up and down the length of Scotland who have written to their mps, msps, the Executive, the Crown Office, and just about anyone else who will listen, over the years, about difficulties in getting lawyers – especially when the issue is to do with crooked lawyers getting off the hook from serious client complaints.
The Legal Profession & Legal Aid (Scotland) Bill, was a chance to bring independent regulation to the legal profession – which to a certain extent, it did. However, as we all saw, the Law Society had several msps make amendments, again, to protect lawyers own business markets & necks when it came to regulatory matters … and even went as far as to threaten the Parliament with Court action should the LPLA Bill actually go through without the demanded amendments from Drumsheugh Gardens.
I covered the Court threat to the Parliament here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill
& here : Law Society of Scotland lobbies Scottish Parliament to pass anti consumer amendments on LPLA Bill threatening Court action if demands not met
However, let us not forget that the sins of the past of the legal profession against clients, still have to be atoned for, and I hope, in some way, I am trying to do that with my Petition PE1033 (pdf) which calls for the Scottish Parliament to seek an effective, transparent and wholly independent means of review of cases of alleged injustice, caused by actions and decisions of the Law Society of Scotland and Faculty of Advocates, relating to the regulation of complaints made by members of the public against the legal profession, either by giving such powers to the new Scottish Legal Complaints Commission or by setting up an independent review commission.
All of those who have been abandoned by a highly prejudiced, discriminatory & corrupt legal profession in our darkest hour, facing either the law, or the consequences of the actions of a few crooked lawyers, deserve Justice and a satisfactory resolution to their cases, and you can read more about that Petition here : Petition PE 1033 – A call for action, review & settlement for victims of the Scottish legal profession’s injustice against client complaints
The state of Scotland’s legal system, which is questioned time & again in the media, is down to the people who run it as a fiefdom for themselves. That is, the Law Society of Scotland, the Faculty of Advocates, their allies & sub-organisations, their insurance & financial partners, the Judiciary – who resist any change whatsoever, and of course those political allies of the legal profession who regularly obstruct any pro-consumer legislation, which would benefit everyone.
If there’s going to be any improvement at all, we have to weed out the crooks, the greedy, the dishonest, and the plain liars & power mad Chiefs of the Scottish legal profession – do this, and resolve the sins of the past against countless clients, and we will certainly have an improvement, almost to the point of respectability. Do nothing, and we are stuck in a rut of rampant corruption, where the crooked become richer on the policy of widespread client abuse.
Link to today’s Scotsman report on abandoned clients …
Deserted by a flawed legal system in their darkest hour
MICHAEL HOWIE (email@example.com)
ANDREI Peterson thought he had woken up in the middle of a Kafka-esque nightmare. Police turned up at his home in London one fine morning and arrested him for an unspecified crime.
He was taken to St Albans police station and detained overnight, before being flown by security firm Reliance from Luton airport to Glasgow, where he was driven by van to Edinburgh to face a breach of the peace charge.
Baffled as to why he would be accused of a crime alleged to have taken place in Edinburgh, when he was 500 miles away in London at the time, the 52-year-old obtained the services of a local solicitor and plead not guilty.
Four days before his trial date, the solicitor backed out of the case.
Mr Peterson claims he refused to carry on because the fixed £500 fee due to him for preparing a case destined for the sheriff court would not cover the volume of preparation, including presenting witnesses to support Mr Peterson’s alibi.
The American faced a four-day race to obtain a new lawyer. Despite ringing almost every criminal defence firm in Edinburgh, no-one answered his call for help.
“They explained that they would not share the fee with the first firm,” he said.
His case was adjourned numerous times before eventually proceeding to a trial in November, with Mr Peterson forced to conduct his own defence.
The sheriff delivered a verdict of not proven, acquitting him of the charge, and apologised for the massive inconvenience he suffered during the drawn-out case, including more than ten trips from London to Scotland.
“It’s obviously extremely disappointing because, in essence, even if you’re innocent you end up bearing the cost of very expensive proceedings.
“Had I been found guilty, the penalty I would have had to pay would have been substantially smaller compared to what it cost me to defend my innocence.”
Lawyers say his situation has highlighted a serious anomaly that is undermining a central pillar of Scotland’s justice system – the entitlement to professional legal advice for people accused of crimes.
The situation arises when an accused obtains a lawyer who then pulls out of the case before it reaches court. The accused is left to find a new lawyer, but most openly refuse to take on such cases.
That is because rules surrounding fixed legal aid fees, introduced in 1999, state that the second solicitors firm has to share the fee equally with the first firm, regardless of how much work they have to do.
One lawyer said: “If you’re talking about a potentially complicated case and I had to split the £500 fee with a solicitor who had acted in the case, I wouldn’t go near it with a barge pole.”
Another said: “It just isn’t worth it, both from an economic and professional point of view.”
Kenny MacAskill, the SNP’s justice spokesman, said: “This is an area that must be reviewed. Clearly it can cause great prejudice where an individual may not be able to obtain any representation. There must be a fair way of dividing up the fee so that justice is served and nobody loses out.”
Oliver Adair, convener of the Law Society of Scotland’s legal aid solicitors committee, said the problem was arising because of a “flawed” fixed fees system.
He said: “It’s uncommon, but it is a flaw in the system. Lots of lawyers won’t take on cases if they are only going to receive £250 for it. Before the fixed fees came in, you would be paid for the work you did, but now you might end up doing virtually all the preparation and only receive half the fee.”
Another lawyer, who did not want to be named, said: “I’ve been told a number of people whose lawyer dropped their case have ended up representing themselves because no-one else would take on the case.”
Vincent McGovern, president of the Hamilton Bar Association, said the new legal services complaints commission, which will see lawyers penalised every time a complaint is upheld, would make solicitors even less likely to take on shared fee cases.
“The failure to increase legal aid rates even in line with inflation, along with half rates when a previous solicitor is involved in the case, and the creation of a body set up solely to investigate complaints against solicitors, means we are going to see growing restrictions in access to justice for all members of the public, and particularly those engaged in the criminal courts.”
Cases where a lawyer withdraws are rare, occurring, for example, when the client changes their instructions in relation to the defence or there is a conflict of interest.
But they represent another flaw in a legal aid system that experts say is restricting access to justice for thousands of people who have to fight battles in the courts.
The perceived underfunding of civil legal aid has driven many practitioners out of such work, creating “legal deserts” in towns across the country and prompting a strike threat among family lawyers.
Lawyers have also threatened to revolt over a historic failure by legal aid and Executive officials to introduce promised fixed fees for solemn work, which covers murders and other serious crimes.
A boycott of sex cases was narrowly averted last year after the then deputy justice minister, Hugh Henry, offered an interim pay rise.
The Scottish Legal Aid Board said the fixed legal aid rules had been changed to encourage lawyers to take on such cases.
Solicitors who take on transferred cases can apply for “exceptional” funding, which means they will be paid for the work they do.
Also, if the case goes to trial, the second lawyer will now receive all additional payments for acting in court.
A Scottish Executive spokesman said: “We are committed to ensuring that people receive the legal advice they need from those best placed to give it.
“Already we have increased the number of Public Defence Solicitors’ Offices in Scotland to widen the range of choices available to accused persons.
“And we have made changes to legal aid regulations to ensure solicitors receive fair remuneration for work undertaken in summary criminal cases where two or more solicitors acted on behalf of the accused.”
Inflexible scheme that pays scant regard to justice for the accused
MENTION of legal aid usually accompanies a story of someone who has been convicted of a serious offence, despite representation paid for by the state, writes John Scott.
There is often a media portrayal of legal aid lawyers as “fat cats”. The daily reality is very different.
Most legal aid work is done in sheriff and district courts under a scheme of “fixed fees”. Introduced in 1999, this was designed to reduce expenditure, with only minimal regard to justice and proper representation for those charged with sometimes serious crimes. It was presented as a “swings-and-roundabouts” system that would pay properly for some work but inadequately for other work.
The scheme was considered by the judicial committee of the Privy Council, where Lord Hope said: “A scheme which provides for various items of work and the associated outlays to be paid for in stages, for each of which a prescribed amount will be paid as a fixed fee, will not necessarily be incompatible with the Convention [of Human Rights] right to a fair trial. But the greater the inflexibility the greater is the risk that occasionally … the scheme will lead to injustice.”
One of the inflexibilities is where there has been a breakdown in the relationship between solicitor and client. This can happen for a number of reasons, for example a change of instructions in relation to the defence or a conflict of interest.
With fixed fees, the change of solicitor brings to the incoming solicitor a maximum of only £250 for all work up to the first half hour of any trial. Often that will be wholly inadequate to cover work still requiring to be done. When faced with an accused person asking for help it can be difficult to refuse but sometimes the responsibilities involved are such that it is not in the professional or business interests of the solicitor to step into a case at an advanced stage.
Despite the annual squeeze on legal aid payments, we have practitioners who continue to do all necessary work, for much of which they will be paid nothing. Without such solicitors, our system could not function.
• John Scott, a solicitor-advocate, is former chairman of the Scottish Human Rights Centre.