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Why a lawyer should NEVER be his own judge : The limits of self regulation in Scotland’s legal profession which places lawyers interests before clients

10 Feb

SCCScottish Consumer Council’s 1999 report echoes today’s client concerns of poor legal services & calls to scrap lawyers self regulation. A REPORT published by the former Scottish Consumer Council twelve years ago in 1999, “Complaints About Solicitors” concluded many clients who complained about their solicitor to the Law Society of Scotland felt the entire complaints procedure was biased, unfair, and discouraging. The report went onto recommend fully independent regulation of Scotland’s legal profession.

Most of those clients who managed to somehow survive the Law Society’s torturous complaints system, where some cases took years to be heard, feel to this very day the Law Society of Scotland is nothing short of a thoroughly corrupt self regulator which spares no expense to ensure lawyers, no matter the crime they have committed, retain their jobs, titles, wealth & privileged position while their clients are left blacklisted from access to justice, financially ruined, and in some reported cases involving claims against the Law Society’s Master Policy, ill or even dead.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC report continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

Today in 2011, the expectations & experiences of thousands of clients who complain to either the Law Society of Scotland or the less-than-independent Scottish Legal Complaints Commission remain unchanged, where most consumers who encounter difficulties with their solicitors view the Law Society & SLCC as little more than systems put in place by the legal profession to cover up complaints against their own colleagues, continuing the long held, if corrupt tradition that a lawyer is still his own judge.

Scottish Consumer Council recommended independent regulation of legal profession in 1999. Writing in the Scotsman newspaper in September 1999, the Scottish Consumer Council’s Sarah O’Neill went some way to explaining the conclusions of the SCC’s “Complaints About Solicitors” report, going onto recommend the Scottish Parliament’s then Justice & Home Affairs Committee study the issue, saying : “The SCC report concluded that there must be an open debate about the merits of establishing an independent complaints-handling body. We therefore recommend that the Scottish Parliament should review the current procedure with a view to establishing an independent body to deal with complaints about solicitors in Scotland. We would encourage the Justice and Home Affairs Parliamentary Committee to find time to examine this issue and reach a balanced conclusion. The Scottish Executive has told us it has no plans at present to change the current system.”

Ms O’Neill went onto say : “We would not recommend a particular model for an independent complaints-handling body. The Scottish Parliament should carefully consider all possible options, having carried out a thorough review of the current system, before making any firm decisions. Whatever scheme is introduced, however, it is essential that it is seen to be transparent, fair and above all, independent.”

Scotland on Sunday February 2001 - Legal Profession in the dock over complaints about self regulationThe newspaper Scotland on Sunday reported in 2001 there would be an investigation into regulation of the legal profession at Holyrood. Scots had to wait until 2001 before there was substantive movement at the Scottish Parliament to secure an inquiry into regulation of the legal profession, a move made possible only from the much appreciated efforts of the late Phil Gallie, then an MSP. Mr Gallie at the time sat on the Justice Committee and was eager to participate in the investigation, a prospect welcomed by many law reform campaigners, including particularly myself as Mr Gallie had written to me confirming the inquiry was to go ahead.

Regrettably however, the Scottish Conservative’s hierarchy & leadership were not too keen on this idea, so Mr Gallie was taken off his Shadow Justice portfolio and replaced by Lord James Douglas Hamilton in the Justice 1 Committee’s “Regulation of the Legal Profession” inquiry, which, under the Convenership of Christine Grahame MSP, mangled the issue so much, even forbidding public entry & testimony to some of the hearings, the only people to get a say in the matter were lawyers, lawyers, and more lawyers.

Scots had another wait until 2006, when the Justice 2 Committee of the Scottish Parliament was given the task of investigating changes to regulation of the legal profession with its consideration of the Legal Profession & Legal Aid (Scotland) Bill.

Would Granny Swear by the Law Society - The Herald June 5 2006Law Society Chief Executive Douglas Mill threatened legal action against complaints reform bill, also crossed swords with the SNP’s John Swinney. After a long year of bitter parliamentary hearings & debates, legal threats against the Scottish Executive & Scottish Parliament from the legal profession, public testimony & even evidence from now serving Government Ministers that the Law Society was a corrupt organisation, which regularly stage managed complaints & damages claims against ‘crooked lawyers’, the Scottish Parliament again mangled the issue, passing a butchered piece of legislation, the Legal Profession & Legal Aid (Scotland) Act 2007, which left the SNP to create the Scottish Legal Complaints Commission, a quango very far from independent, populated by lawyers, lawyers, more lawyers, a few ex lawyers, and a few ex senior Police Officers, with some quangocrats thrown in just for good measure.

The much-promoted-as-independent Scottish Legal Complaints Commission has, in its three years of existence, managed to uphold only one single complaint against an unknown solicitor or law firm, the remainder being handed back to the Law Society of Scotland for its own style of ‘crooked’ self regulation, you know, the one where the lawyer is his own judge …

So as things currently go, the position we remain in is that lawyers in Scotland are still their own judges. Clearly this is not what consumers of today’s world expect when they are forced into a position of having to make a complaint about their solicitor, not is it what was intended from all those numerous reports published by the Scottish Consumer Council, and even, dare I say, Consumer Focus Scotland over the many years which have passed.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

The Scottish Consumer Council recommended in it’s 1999 report : “A Scottish Parliament should establish a review of the Law Society of Scotland’s complaints procedure, with a view to establishing an independent complaints body to deal with consumer complaints against solicitors in Scotland.”

The SCC went onto say : “We believe that such a review should be an urgent priority for a Scottish Parliament, in the interests of consumer protection. This review should involve an examination of best practice in complaints handling in other fields. All possible options, including statutory regulation and a non-statutory ‘arms-length’ scheme, should be carefully considered by the parliament.”

The Scottish Consumer Council’s 2001 report “The limits of self regulation in the legal profession” went on to state : “It has been the Scottish Consumer Council’s position for many years that complaints against solicitors in this country should be handled by an independent body, because this is necessary to ensure that there is public confidence in the impartiality of the complaints process.”

The 2001 report further stated : “The Law Society’s procedure continues to be run by solicitors, for solicitors. The existence of lay members on the complaints committees cannot by itself ensure independence. A large number of complaints do not even get as far as being considered by a committee because they are disposed of administratively by Law Society staff before then.”

Now, eleven years on, in spite of all which has passed at the Scottish Parliament, nothing has changed, mainly because the Law Society of Scotland has continued to intercept & interdict any effort to reform regulation of the legal profession, and of course, msps have allowed it.

Indeed, the Law Society of Scotland is as anti-client, & anti-consumer as ever, and their complaints system has not changed one bit. The Scottish Solicitors Discipline Tribunal, that alleged second tier of impartial prosecution of ‘crooked lawyers’ has also not changed. The SSDT’s habit of whitewashing even the worst cases of solicitor misconduct, negligence, poor service, or even criminality, has remained as constant as the numbers of ‘crooked lawyers’ getting a slap on the wrist.

Right at the heart of the Scots justice system, the Scottish Courts policy towards sidelining or discouraging cases involving the pursuit of ‘crooked’ or negligent lawyers has not changed, and to make matters worse, the Scottish Executive’s policy on regulation of the legal profession has actually regressed to the point it now advocates a stronger view for lawyers regulating themselves even more so than lawyers do. It is of course now well known, the ‘independent’ Scottish Legal Complaints Commission, the supposed new broom as a result of Holyrood’s intervention to clean up complaints against solicitors, has only managed to uphold one single complaint in its three years of existence, is not independent, not one bit.

However, what has stayed the same is the frequency of letters sent to msps by constituents who encounter difficulties with the legal profession, the Law Society of Scotland, and now, difficulties with the Scottish Legal Complaints Commission, yet it appears msps again do not want to give Scots a fully independent complaints system for legal services which now operates in other parts of the UK.

Clearly a new campaign is in need of being launched to end self regulation of the legal profession, and bring to an end the deadly era where lawyers are their own judges.

Those who are interested in campaigning on the issue of removing self regulation of the legal profession may wish to & should read some of the earlier Scottish Consumer Council reports on regulation of the legal profession, which can be viewed online or downloaded in pdf format at the following links :

The limits of self regulation in the legal profession (Scottish Consumer Council) 2001

Complaints Against Solicitors (Scottish Consumer Council) 1999

Getting the best from your solicitor (Scottish Consumer Council) 1994

I’m not happy with my solicitor (Scottish Consumer Council) 1986

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