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Law Society’s proposals on legal services market overhaul spin wide of the mark on public interest

12 May

In the latest salvo of publicity from the Law Society of Scotland fired in an attempt to sell the recent Alternative Business Structure policy document as the legal profession’s ‘acceptance’ of an opened legal services market, I was pointed by a solicitor to an article in today’s Scotsman, with a comment that ‘drivel knows no bounds’ – admittedly, his own firm siding on the ‘open the legal services market’ argument, which I support myself – intended to bring access to justice for all, not some, as the Law Society would have it …

The Law Society does seem at pains to sell their proposals as an ‘acceptance’ that the current closed shop of the Scottish legal services market, which forces anyone who wishes to use legal services or gain access to the courts to go through a member of the Law Society of Scotland itself, will be opened up.

In reality however, as I covered in my earlier article on the ABS proposals, the Law Society’s ideas for ‘alternative business structures’ fall very short of any form of acceptance of an opened legal services market. You can read more of my earlier coverage of this issue here : Law Society policy blunders on legal market reforms leave public in the cold, favouring control of regulation & access to justice

Indeed, within the ABS policy paper recently produced by the Law Society, there are several attempts by the current governing body of the Scots legal profession to retain and even extend the Law Society’s control over the legal services market, notably recommending the Law Society itself be reinstated as the sole regulator of the Scots legal services market – a recommendation which if Kenny MacAskill accepted, would have dire consequences for the public’s access to justice and clients rights.

In today’s Scotsman, I found the following portions of their ‘report’ (actually written by a freelancer studying for an LLB to become a solicitor herself perhaps) to be rather interesting :

From the Scotsman : “In its new policy paper on alternative business structures (ABS), the Law Society has embraced the principle of allowing solicitors to explore new working models.

Aside from the inevitable caveat that appropriate regulation needs to be in place to deal with issues such as independence and conflicts of interest, the society’s council says it wants to set out a timetable for “early and energetic progress” towards the framework for ABS.”

Well … it seems that despite the Law Society’s attempts at making what is a ‘leap into the public interest’ it cannot resist qualifying its efforts with conditions such as ‘nothing gets done unless we, the Law Society, get to regulate what comes next’ – a true sign that in reality, nothing much has changed within the Law Society itself, where the desire to regulate and in effect, control the entire legal services market for itself, is still far more important than clients rights, or even the voting rights of its own solicitors in the profession’s policy doctrine.

The Law Society of Scotland, based on its previous & current administration of complaints against lawyers, certainly can have no claim whatsoever to remain as the regulator of any opened up legal services market, for such a development would spell the certain disaster for the future, which has constantly troubled the legal profession in the past and present.

The Law Society cannot be allowed to have any say or role in regulating what should and hopefully will be an opened legal services market, which provides the Scots public with direct and unrestricted access to justice, offering quality and dependable legal services with an unrivalled consumer protection system which the Law Society itself could never offer or provide.

Going back to the Scotsman article once more : “If one thing has been consistently clear during the debate about ABS it is that change was going to happen. The question for the Law Society was whether that change would be driven by them or foisted upon them.”

I’d say there is little doubt that some measure of ‘foisting’ must surely be the case, and soon, because if we travel at the Law Society’s pace over the ABS proposals, we will still be discussing them this time next year …

Finally, if perhaps to inject some macabre humour into the article, the final lines attempt to gloss over the Law Society’s policy of resistance to what is now the Legal Profession & Legal Aid (Scotland) Act 2007 …

Again, from the Scotsman : “Those who recall the society’s handling of the complaints handling consultation leading up to the Legal Profession and Legal Aid (Scotland) Act might have expected it to take a similarly conservative approach to ABS.

This time, by embracing both the reality and the opportunity of change, the society has taken a significant step forward.”

Yes, many remember the Society’s handling of the complaints handling consultation – and the likes of Douglas Mill’s threats against the Scottish Parliament & Government if the then LPLA Bill made it into legislation.

The Herald : Douglas Mill threatens the Scots Parliament with legal action if regulation of complaints against lawyers is made independent …

Holyrood in Solicitor's Sights Octover 30 2006 The Herald

For myself though, I would have to point to the ferocity in which Douglas Mill, the current but resigning Law Society Chief Executive gave controversial testimony to the Scottish Parliament’s Justice 2 Committee, which revealed a concerted policy by not only himself but others at the Law Society and their insurance arm Marsh UK to undermine and restrict not only clients rights, but also the general rights of the public over those ‘complaints handling procedures’ the Law Society cherishes so much and oh .. just by chance, that testimony is of course available on video …

Law Society Chief Executive Douglas Mill tells a few lies to the Scottish Parliament … and Cabinet Secretary John Swinney …

And just for good measure, here is the Herald’s excellent report on that same Justice 2 Committee confrontation between Douglas Mill & Cabinet Secretary John Swinney here :

The Herald: Douglas Mill’s granny would definitely not swear by her grandson or his Law Society …

The Herald 5 June 2006 - Would granny swear by the law society

Should such people as Mill and such organisations as the Law Society really be allowed to have any say in regulating their own or a future ‘opened market’ when they have demonstrated such maligning of the public in the past and where still, there is no will to resolve and heal their terrible sins of the past ?

I think not … not at least until those who have done the most damage to the Scots legal profession and the client’s trust in it, come to the table with an attitude to put things right.

However, the Scottish Government, well .. to be more precise, the current Justice Secretary Kenny MacAskill came out with a statement regarding the Law Society’s proposals – one could say .. the following is a predictable choice of words, coming from Mr MacAskill who seems uninterested in change for the public good ? :

“The Justice Secretary is considering the detail of the Law Society’s proposals and will respond in due course. The Scottish Government’s overarching aim is access for all to high quality legal services, within a competitive market which is appropriately regulated.

“At the Law Society’s conference in September last year, the Justice Secretary challenged the legal profession to take a lead in identifying how it can move forward and the Scottish Parliament endorsed this approach in a debate last November. The Law Society has now consulted its members and these proposals have followed on from that consultation.

“In his response to the OFT following the super complaint by Which?, the Justice Secretary said that he did not envisage setting up a new regulatory body in Scotland because this would be disproportionate and inefficient. Oversight of regulation is provided by Scottish Ministers and the Lord President and the Scottish Government believes this framework remains generally appropriate.

A slight abandonment of the Scots public by our Justice Secretary once again, where leadership in this defining issue, in the public interest should be shown but sadly it looks like none is present ? Could it be that Mr MacAskill is falling hook line and sinker for the Law Society’s ABS policy line ? frightening stuff indeed …

The Scotsman reports :

Significant step for Law Society

By Jennifer Veitch

HOW time flies for the legal profession in Scotland. Can it be a year since Which? made their ‘super-complaint’ to the OFT about our legal services market?
Yet here we are, 12 uncertain months later, and the full implications of the consumer group’s move are only just beginning to take effect – but what an effect that might be.

In its new policy paper on alternative business structures (ABS), the Law Society has embraced the principle of allowing solicitors to explore new working models.

Aside from the inevitable caveat that appropriate regulation needs to be in place to deal with issues such as independence and conflicts of interest, the society’s council says it wants to set out a timetable for “early and energetic progress” towards the framework for ABS.

Further, it has encouraged the Scottish Government to “amend or repeal” legislation that “impedes or prevents” ABS “as soon as possible.” So, barring some sort of grassroots revolt at next week’s AGM, it looks like some form of alternative structure will become reality.

The timescale could be relatively swift if the regulation, which is covered in some detail in the policy paper, was all that was required to be addressed. But there is a much bigger problem facing the profession that will be much more difficult to resolve.

As the society’s council acknowledges, one of the core themes to emerge from its consultation on ABS earlier this year was that any new structures should not “negatively affect” access to justice. The policy paper’s references to the current make-up of the profession in Scotland indicate why it should be of such concern. While large and medium-sized firms have been arguing for a level playing field with the post-Clementi English marketplace, the vast majority of Scottish lawyers do not play in a UK league.

According to the society, there are 1,247 firms in Scotland, of which nearly half are sole practitioners. More than a quarter of the 10,500 solicitors with practising certificates are working in-house and cannot offer direct services to members of the public.

The society’s policy paper acknowledges that introducing ABS will affect access to legal services, and it has called on Holyrood to “protect and promote” fair and equal access.

The focus now needs to shift on to how the profession and government can work together, in partnership with the voluntary sector and consumer groups, to ensure that happens in tandem with any regulatory reforms.

While access to justice is a major concern, change to the traditional business model will bring new opportunities, and not just for the big firms. This week’s article on the new Community Law Advice Network shows that there are innovative ways of working in the not-for-profit sector.

If one thing has been consistently clear during the debate about ABS it is that change was going to happen. The question for the Law Society was whether that change would be driven by them or foisted upon them.

Those who recall the society’s handling of the complaints handling consultation leading up to the Legal Profession and Legal Aid (Scotland) Act might have expected it to take a similarly conservative approach to ABS.

This time, by embracing both the reality and the opportunity of change, the society has taken a significant step forward.

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