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QC who fought to prevent FOI revelations on access to justice reveals ‘little change’ plans as Dean of Faculty

06 Feb

No change is good for the legal profession as many within it’s senior ranks would agree.

Keeping complaints in-house, preventing independent scrutiny of solicitors activities, keeping ‘meddling’ politicians & critics out of the debate on legal issues have long been and still are some of the top priorities of the Scottish legal profession – so change at the top usually means little.

Little it certainly is, as the new Dean of Faculty, Richard Keen QC, discusses his plans for the Faculty of Advocates in the Scotsman this week, which literally amount to window dressing, with the odd repair of a broken window thrown in for good measure.

Mr Keen, who is widely known for a costly battle at the taxpayer’s expense to prevent the release of a Freedom of Information request on why Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were kept off the legislative books for some seventeen years, brings little change of benefit to the public in his new role as Dean of Faculty, but that is to be expected, as the position of Dean of the Faculty of Advocates has little responsibility or regard for the masses of Scots denied access to justice on a daily basis – more, his thoughts wander back to maintaining a closed shop of legal services, preferring the position of the legal profession dictating who among us has access to legal services, and who gets to take the more usual ‘justice denied’ route, after throwing as much money at their legal agents of course …

You can read more about my earlier coverage of the FOI court battle between the previous Scottish Executive, here :

Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Scottish Executive drops FOI disclosure battle over restrictive access to Courts while thousands go without representation

In a quote from the Scotsman article, which typifies the “Douglas Mill” doctrine of ‘lets keep control over access to justice for lawyers so we make the money and control legal services as a monopoly’, Mr Keen puts forward the tried & tested ideas of protection of monopoly :

“Proposals for reform that may seem attractive for a very large jurisdiction may, if unthinkingly applied in Scotland, be extremely destructive,” he says. “I think we are entitled to contemplate solutions that are tailor-made to our jurisdiction and are not simply a pass-on, for example, from England. This is where I have to say I have some reservations about the OFT’s approach, which has a slight hint of ‘one size fits all’ about it.”

Simply, the Scottish legal profession does not want to lose its monopoly on the legal services market – after all, that’s what the seventeen year campaign to keep Sections 25-29 of the 1990 Law Reform Act off the books was all about, where plans to allow anyone attaining a certain level of standards & qualifications to enter the legal services market frightened the Scottish legal profession so much, they ensured the relevant parts of law never became legislation until March 2007.

Further revelations in the bitterly fought court battle to keep the public from knowing why those laws were never enacted saw an exchange of letters between the then Lord Advocate Lord Hardie and civil servants where Lord Hardie’s ideas to repeal the 1990 laws to reform access to legal services were discussed, with intent to keep anyone who needed to use legal services in the firm grip of the legal profession itself.

Another sad fact of the current changes in the legal profession is the Justice Secretary simply does not give a damn about the public interest, preferring blatantly, to support the legal profession directly against the public at each turn as policy after policy comes & goes, leaving the Scots public out in the cold while the legal profession and a few at the top of the Law Society get to fatten their wallets even more at your expense.

Again, from the Scotsman article :

“From only a few meetings with the minister and his officials, I have come away with the clear impression they want to see change within the legal profession in Scotland, but not regulation for the sake of it,” he says.

“What they want to see is innovation and they want it to come from the legal profession itself – they don’t want to impose it. They want to see a distinct legal profession that supports a distinct legal system and that is capable of making Scotland an attractive place to come and do business, in the sense of a place where people will want to employ legal services for dispute resolution, commercial litigation, judicial review.”

Amazing stuff, but who would want to use legal services in Scotland in the dangerous unreliable, untrustworthy state they are in ?

Why on earth would anyone consider Scotland an attractive place to come and do legal business with the same legal services which have ripped off the public and corporations alike to the tune of tens of millions of pounds a year, and get away with it ? Why would an international company wish to employ firms of Scots lawyers only to be let down in badly worded contracts, failed & costly litigation which never had a chance of success in the first place, and a general attitude within Scots legal firms to pass over the intentions of a few corporate clients to other companies for a slice of the action to the legal firm itself – yes it does happen …

So, no change at the Faculty then which benefits the public in any way whatsoever, and little regard at the Justice Department for anything which does not support the demands of the legal profession to do as it pleases …

Oh, how Scotland needs a more impartial Justice Secretary, and soon …

The Scotsman reports :

New Dean, new dawn

By JENNIFER VEITCH

AS ONE of the counsel at the inquest into the death of Diana, Princess of Wales, Richard Keen QC is undoubtedly embroiled in one of the highest-profile cases currently running in the courts. But, despite of spending four days a week in London representing the parents of Henri Paul, Dodi Al-Fayed’s driver, Keen is still finding time to run affairs at the Scottish bar. And it seems members of the Faculty of Advocates should expect a new dawn under their new dean.

Keen is wasting little time in setting out his stall for some significant, and potentially controversial, changes at the bar. Top of his list is putting an end to the Faculty’s rule against counsel teaming up with solicitor advocates to create so-called “mixed doubles”.

Direct access to advocates will be also up for review and, in the wake of Mike Jones QC’s recent move to become a solicitor, Keen also wants to make it easier for lawyers to move between the two branches of the profession, with a choice of business models. Keen is clear the Faculty must rely on promoting the expertise of its members and sweep away restrictions that critics complain give it an unfair advantage in the marketplace.

“I would like to see a situation in which there is effectively freedom of movement between the two branches of the legal profession, so that there is no insurmountable obstacle to a person moving from membership of the Faculty to membership of the solicitor branch of the profession and vice versa,” he says. “For example, it will mean a QC can choose to be an independent self-employed practitioner within the Faculty business model, or he may choose to become a partner in a firm of solicitors, in which case he simply moves over to that business model without any real difficulty or any real barrier.”

Keen says he has no problem with Jones’s decision to leave the Bar to join solicitors’ firm Simpson and Marwick.

“The simple fact is he is an extremely good example – here is a QC who was practising in the Faculty on Friday and is a QC practising as a partner with Simpson and Marwick on Monday. I don’t have a problem with that.

“But why would you want him to be a QC as a member of Faculty and a QC as a partner with Simpson and Marwick? All that does is create conflicts of interest and raise issues about him having two sets of overheads and regulatory problems.”

Such debates are set against a backdrop of likely reform of legal services in Scotland, with justice secretary Kenny MacAskill having challenged the profession to come up with its own solutions to the issues raised by the Office of Fair Trading (OFT) in its report on last year’s Which? super-complaint. The biggest question surrounds the possible introduction of alternative business structures, such as multidisciplinary partnerships. Keen is concerned that importing Clementi-style reforms to a small jurisdiction would not be appropriate, but he does not see that Scotland’s size should prevent it competing on an international level.

“Proposals for reform that may seem attractive for a very large jurisdiction may, if unthinkingly applied in Scotland, be extremely destructive,” he says. “I think we are entitled to contemplate solutions that are tailor-made to our jurisdiction and are not simply a pass-on, for example, from England. This is where I have to say I have some reservations about the OFT’s approach, which has a slight hint of ‘one size fits all’ about it.

“But we are a nation, not a parish, and we ought to be capable of competing at an international level. And if we are not, we will see a steady drain of the most innovative and intelligent lawyers south of the Border.”

The Faculty has commissioned an independent review of its business model, which Keen has pledged to publish, whatever its findings. Meanwhile Keen says he has been impressed by the attitude of the Scottish Government towards the future development of legal services in Scotland.

“From only a few meetings with the minister and his officials, I have come away with the clear impression they want to see change within the legal profession in Scotland, but not regulation for the sake of it,” he says.

“What they want to see is innovation and they want it to come from the legal profession itself – they don’t want to impose it. They want to see a distinct legal profession that supports a distinct legal system and that is capable of making Scotland an attractive place to come and do business, in the sense of a place where people will want to employ legal services for dispute resolution, commercial litigation, judicial review.”

This is a realistic ambition, he adds, so long as the limitations are recognised, and Scotland innovates to compete with other jurisdictions, perhaps by moving to award full costs to parties who win their cases in commercial disputes.

“I do think we have moved away from the rather negative attitude of looking on the legal profession as being there to service criminal work, family law and these areas,” he adds. “All these areas are important, of course they are, but there is so much more that can be done.”

Whatever future direction is taken by the Scottish Government, Keen intends to address some of the concerns raised by the OFT, including the issue of mixed doubles.

“We must introduce an effective and level playing field between members of Faculty and solicitors,” he says. “I don’t myself see a future for the prohibition on what’s termed mixed doubles. We need to address that sooner rather than later.”

Keen insists he considers this “a matter of substance” and not merely one of trying to change perceptions that the bar is protectionist. He adds it will be unpopular with some counsel.

“It is not going to be a welcome development for certain parts of the bar. Regrettably it will be open to abuse, although I hope it won’t be abused, by certain sections of the legal profession. We have to remember solicitors tend to be the gatekeepers for provision of work, and there is a reluctance to see a situation in which they as the gatekeepers instruct counsel to appear with them only where they see a problem or an issue they don’t want to have to resolve themselves.”

He adds: “We must resolve the potential conflicts that may arise. But I see no reason why they should not be addressed and dealt with within the foreseeable future. I mean to see it disappear in 2008.”

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Posted by on February 6, 2008 in Politics, Scots Law, Scottish Law

 

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