Law Society policy blunders on legal market reforms leave public in the cold, favouring control of regulation & access to justice

26 Apr

The Law Society of Scotland on Thursday, published its paper on the ‘development’ of the legal services in Scotland, which many hope will be fully opened up to widen competition in the legal services market.

There is little surprise the Law Society’s ‘proposals for change’ are little more than a ‘policy for market protection’ where the hugely profitable monopoly on legal services in Scotland, for so long enjoyed by solicitors who are members of the Law Society of Scotland faces being broken up, much to the anger & bitterness of the profession’s governing body which now finds itself struggling to retain control over regulation, legal services and the public’s access to justice.

The Law Society policy paper on alternative business structures can be downloaded direct from the Law Society of Scotland in pdf format : Law Society of Scotland ABS policy paper

To read some of my earlier coverage of the access to justice issue, see here : Access to Justice in Scotland

While most consumer organisations such as Which?, the Scottish Consumer Council, many campaigners & consumer groups, and even the Office of Fair Trading wish to see the Law Society’s monopoly on access to justice curtailed, the legal profession have unsurprisingly, clung to their policy of retaining as much control as possible within their proposals, even citing themselves as being best placed to retain regulation of the legal services market in-house, keeping the spectre of lawyers investigating lawyers to the fore which has become one of the professions biggest burdens, and greatest liability.

The President of the Law Society of Scotland, Richard Henderson, said in a press release that “We do not think that the Society should simply follow the English model but should find solutions specifically to meet the needs of the Scottish public, ensuring proper access to justice, and Scottish business, as well as creating opportunity for firms based in Scotland to compete in a growing international market.”

Of course not Mr Henderson, it would not be in the interests of the Scots legal profession’s sole control over legal services and an individual’s access to justice, if the ‘English’ reforms as per the Clementi Report were to be implemented .. as ordinary Scots would then be able to choose for themselves exactly who could handle their legal affairs, at what price, and perhaps even better, individuals would not find themselves without legal representation just because it was in the Law Society of Scotland’s interests to bar them from access to justice – a policy which has been seen & reported many times in the media over the years …

The Law Society’s paper, extending to some 20 pages, inevitably breaks down to the issue of retaining regulation within the legal profession itself, where regulation has always been seen as keeping control over the very existence of a closed shop legal services market, and the consumer’s access to justice.

The report states on page 16 :“The market for legal services requires regulation. legal services impact on some of the most important aspects of people’s lives. legal matters can be complex and involve a range of ethical considerations. regulation helps ensure that solicitors or advocates provide their services to an agreed standard and, if not, can be subject to sanction. A free market could not offer the consumer safeguards required. Firms of solicitors in scotland are currently regulated by the law society of scotland.”

Surely after all the problems with allowing the Law Society of Scotland to regulate the legal profession for decades, which has seen complaints hit almost eight thousand a year, negligence claims at an all time high, exponential levels of corruption throughout the legal profession and almost wholesale denial of individuals right to access the justice system, the Law Society and the legal profession itself cannot ever be trusted again to maintain any form of regulation against its own members, given its abysmal failure over the years to perform its role as self regulator of all lawyers in Scotland.

Readers are left in no doubt whatsoever on the determination of the Law Society to keep control over regulation of lawyers, with further claims in the policy paper that “The council believes that regulation is the key issue in relation to alternative business structures. There should be appropriate regulation of the delivery of services provided by solicitors and advocates in Scotland, whatever business structure delivers those services, to ensure that the core values of the legal profession are protected and that service quality is maintained”

Again however, the current state of the Scots legal profession which sees an almost daily scandal involving ‘crooked lawyers’ and consistent, almost determined failures by the Law Society over regulating rogue solicitors who have built up long lists of ruined clients, demonstrate that the ‘core values of the legal profession’ and claims of ‘quality’ which the Law Society speak of simply do not exist.

On page after page, the Law Society loses the focus over developing the Scots legal services market in both the profession and public interest, instead preferring to maintain the tired worn line on retaining regulation for itself, confirming that what this debate is really about is control over the legal services market itself, and ensuring the Law Society retains its position on regulation, which has already been split to the new Scottish Legal Services Complaints Commission.

On page 17 of the legal services report for instance, the Law Society simply can’t help itself and comes out with the following ridiculous statement : “The council takes the view that the society is the most appropriate body to regulate entities delivering legal services in scotland. The society is the only body in scotland with relevant experience of regulation of all areas of legal practice. its capacity, however, would need to be enhanced to take on additional functions.”

Rather than focus on retaining control over the legal services market, just to ensure that member solicitors keep the profits from representing clients, the Law Society really needs to come away from this insane, obsession with retaining regulation just so it can demonstrate yet again how lawyers so poorly regulate their colleagues but as we see from the general tone of the policy paper, there doesn’t seem much chance at that.

All in all, a very poor showing from the Law Society of Scotland, and one which typifies the policies of a few within the Scots legal profession who have determined that rather than embracing the opening of the legal services market in the public interest, the focus will be on continued control and enforcement of the legal professions right to control and monopolize legal services & access to justice.

Hopefully the public’s voice and that of elements within the Scots legal profession itself who are for the expanding of the legal services market will win the day and ensure the Scots national and public interest is served by giving the consumer freedom of choice in legal representation, leaving the Law Society’s antiquated views to the dustbin of history, where the Law Society itself, clearly shows it belongs.

Now we must wait & see if the Scottish Government can struggle with Justice Secretary Kenny MacAskill to fully open up the Scots legal services market and give us, the public, the choices we should have the right to make, rather than follow Kenny MacAskill & other parliamentarians highly personalised views of protecting the legal profession’s profits from the public’s right to choose better, less crooked, & perhaps cheaper ways of doing things in the world of law & justice …

As a final comment, I did like this little snippet on page 18, where the Law Society policy document states “All activities of a business structure must have appropriate indemnity insurance and fidelity cover, at a level approved by their licensing regulator, which must be not less than a statutory minimum level. The minimum terms of the protection afforded must be made explicit to clients in all transactions”

Fantastic stuff – you couldn’t make it up … clients have never been told or made aware of the [little] protection offered to them via the Law Society of Scotland’s infamously corrupt Master Insurance Policy – which even saw Chief Executive Douglas Mill intervene directly in claims & complaints against colleagues and tell the occasional lie or two to Parliament over it …. so why start pointing these things out now ?

Onwards please to a fully opened legal services market – give Scots the same rights as the rest of the UK to an accountable, competitive, competent, well respected, and independently regulated legal services market – which Scotland surely deserves after all these years of failure.


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