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LAW WARS : Court upholds SLCC’s decision to reject lawyer’s complaint against ex Law Society President Jamie Millar over Regulation Committee fiddle

24 Nov

Parliament_House,_EdinburghCourt of Session refuses lawyers appeal over complaint against ex Law Society President. A DECISION of the Court of Session to refuse a Glasgow lawyer permission to appeal a decision by the Scottish Legal Complaints Commission (SLCC) to dismiss a complaint against the now former President of the Law Society of Scotland, Jamie Millar over allegations he misled fellow lawyers with regards to the society’s creation of a Regulation Committee to comply with the requirements laid down in the Scottish Government’s Legal Services Act 2010 reveals its not only clients of crooked lawyers who face a rough time with their complaints with the notoriously anti-consumer law complaints quango whose Board members have openly insulted & chastised complainers & lawyers alike.

jamie_millarNow former Law Society President Jamie Millar was alleged to at the time of his presidency to have misled the rest of the Law Society over the creation of a new committee.The complaint in this latest case, made by Glasgow lawyer & Law Society Council member Walter Semple alleged the Law Society’s President at the time, Jamie Millar had deliberately misled the profession in a communication to Glasgow Council members which said that it was necessary to change the Society’s constitution in order to create the new Regulatory Committee required under the Legal Services (Scotland) Act 2010. Mr Semple’s complaint alleged Millar knew the Council already had such powers without the need to create a new Committee and that he had went back on his word having said at a meeting of Council that he would resign if the complaint of misleading the profession was found to be justified, all of which was in breach of the prohibition in the Solicitors Practice Rules of knowingly misleading other solicitors.

The Law Society quickly issued a statement welcoming the Court’s decision to halt Mr Semple’s complaint although the Law Society did not mention the fact the SLCC is subject of continuing legal challenges in the Court of Session brought by the Law Society of Scotland as reported earlier in 2010 here : Bitter feud between regulators as Law Society of Scotland take Scottish Legal Complaints Commission to Court of Session over complaints role.

The Law Society stated : The Scottish Legal Complaints Commission (SLCC) had earlier decided to reject the complaint on the grounds of it being ‘totally without merit’. An application for leave to appeal the SLCC decision was rejected by the Court of Session on Tuesday, 22 November, following a hearing on 8 November.

In April, a member of the Law Society Council made a complaint to the SLCC against the conduct of Jamie Millar who was then President of the Society. This related to a communication that was issued to solicitors on the Society’s constitution in advance of the AGM in March this year. Mr Millar’s term of office as President was for one year only and concluded in May. The Society was informed that the SLCC rejected the complaint as being totally without merit. The SLCC will therefore be taking no further action in the matter. This application to leave to appeal the decision was made to the Court of Session and was heard today.

Current Law Society President Cameron Ritchie, fresh from a grubby tour of Dubai along with Chief Exec Lorna Jack, apparently at significant expense to drum up business for the Scottish legal market. Cameron Ritchie, who succeeded Mr Millar as President when his one year term of office came to end in May, said: “I have always considered Jamie Millar to be a person of honesty and the highest integrity. The Law Society was fortunate to have him as its president during what was a particularly difficult time within the legal profession. It was regrettable that he had to face some unfair and wholly unjustified accusations during his last few months in office. He may no longer be our president but we are fortunate to still have Jamie serving on our Council, standing up and speaking out for solicitors, both within his Glasgow constituency and across Scotland.”

However, for a more accurate take on Jamie Millar, Diary of Injustice reported his installation as Law Society of Scotland President in the annual musical chairs event, here : Law Society welcomes new President, firm has links to dishonest Borders solicitors who mishandled wills & executry estates

The idea to create the Regulatory Committee came about in response to heated debate between the Law Society & the SNP minority Scottish Government of 2007-2011 over the terms of the Legal Services Act (2010) as it passed through the Scottish Parliament. The Legal Services Act came about after the Office of Fair Trading (OFT) recommended changes to Scotland’s closed shop monopolistic legal services market which is dominated & controlled by members of the Law Society of Scotland. The Scottish version of the Legal Services Act, which has existed in England & Wales from 2007, is a pale and ‘profession biased’ comparison to its southern counterpart.

During bitter exchanges between the Law Society of Scotland and the SNP minority Scottish Government, Scottish Ministers were forced to back down time & again over proposals in their bill designed to open up access to justice for ordinary Scots. In one instance, the then Communities Minister Fergus Ewing was hauled over the coals by the Law Society and quickly changed parts of the planned legal reforms, In another key capitulation, the Scottish Government’s plan for Scottish Ministers to be able to appoint lay members to the Law Society’s ruling Council was thrown out after the Society protested, reported by Diary of Injustice, here : Scottish Government back down on lay appointments to Law Society Council as lawyers interests threaten to break pro-consumer legal services bill

The Scottish Government’s own website lists the current status of the Legal Services (Scotland) Act 2010, reporting that although certain sections in the Act have been commenced (see the Legal Services (Scotland) Act 2010 (Commencement No. 1 and Saving Provision) Order 2011), the bulk of the provisions establishing the regulatory frameworks for licensed providers, confirmation agents and will writers are not yet in force. The timetable for full implementation of the Act is currently under consideration, and key stakeholders will be consulted in due course.The Scottish Government conducted a consultation on “Ownership and control of firms providing legal services under the Legal Services (Scotland) Act 2010” between February and May 2011. More details can be found HERE

The entire story of the Legal Services Bill, the arm twisting & threats from the legal profession over the loss of their exclusive control over access to justice markets, and the bill’s passage through the Scottish Parliament, along with video coverage of testimony before the Justice Committee is here : Legal Services Bill – The failure to open up access to justice in Scotland

The judgement from the Court of Session by Lord Mackay of Drumadoon, Lord Bonomy, Lord Marnoch in the appeal of Walter Semple against the decision of the Scottish Legal Complaints Commission to dismiss the complaint against Jamie Millar, follows :

OPINION OF THE COURT [2011] CSIH 74 delivered by LORD MARNOCH in Application for Leave to Appeal under Section 21(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 by WALTER GEORGE SEMPLE Applicant; Against a Determination of the Scottish Legal Complaints Commission Act: Party; Fyfe Ireland LLP Alt M Ross; Shepherd & Wedderburn LLP

22 November 2011

[1] This is an application for leave to appeal brought under Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 in respect of a Determination made by the Scottish Legal Complaints Commission (“the respondents”) arising out of a Complaint made by Walter George Semple (“the applicant”).

[2] In deciding that the applicant’s Complaint was “totally without merit” the respondents summarised the Complaint for their determination in the following terms:

“Issue 1: Mr Millar deliberately misled the profession in a communication of 16 March 2011 addressed to Law Society of Scotland’s Council Members for Glasgow where he stated ‘We must change our constitution to create this [new regulatory] committee. Without it, we will be unable to continue regulating the existing solicitor profession when the relevant parts of the Act commences (sic) over the summer.’ Mr Millar knew this statement to be incorrect as he was aware that the Council had the necessary powers under the Law Society of Scotland’s existing constitution. In making this statement, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors.

Issue 2: Mr Millar went back on his word given at a meeting of the Council of the Law Society held on 25 March 2011 following the Law Society of Scotland’s Annual General Meeting, where he stated that he would investigate the allegation of misleading the profession in terms of the communication of 16 March 2011 and would resign as President if the complaint was justified, in that he has failed to resign despite his investigation showing the complaint to be justified. In going back on his word, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors.”

As regards the first of these issues, it was pointed out that the communication referred to was in fact an e-mail, not addressed to the Law Society of Scotland’s Council Members for Glasgow, but sent by way of a Council newsletter by three of those Council Members to their constituency members in Glasgow and Strathkelvin. There is, however, no doubt that, in reaching their determination on issue 1, the respondents had regard to the correct document. In this connection, it should be made clear, for the avoidance of doubt, that Mr Millar, against whom the Complaint was raised, was at the time of the events complained of the President of the Law Society of Scotland and a Council Member for Glasgow and Strathkelvin.

[3] Turning, then, to the first issue it appears to us that in those parts of the e-mail or newsletter complained of what was said in no way represented statements of fact but, on the contrary, can only be regarded as expressions of opinion regarding the relevant law. References in the Complaint and in the reasoning of the respondents to whether what was said was “accurate” or “inaccurate” or “true” or “untrue” are accordingly inappropriate, the real question being whether the opinion was or was not honestly expressed. In the course of the hearing before us Mr Semple and, we think, also counsel for the respondents were good enough to accept that that was so. Once the question is so framed, however, the considerations that the e-mail or newsletter was signed by three practising solicitors and that the opinion expressed has since had the support of senior counsel strongly suggest that the answer to that question lies in the affirmative. Mr Clancy, who apparently advised the Law Society in relation to legal matters, may or may not have agreed with that opinion and may or may not have been consulted but what is certainly clear is that neither the President nor his other two colleagues were in any way bound by what Mr Clancy may have said. In any event, as can be seen from the newsletter, the members of the Society were being encouraged to attend the imminent annual general meeting at which the principal business was to discuss the proposed changes to the constitution. In our opinion, the holding of an open debate on the question at issue can only mean that, while what was said in the newsletter may well have been intended to influence the membership, it cannot have been calculated to “mislead” the membership. It may be true, as Mr Semple submitted, that those who voted by proxy did not have the advantage of hearing the debate, but it is equally true that Mr Millar and his co-signatories were prepared to have the validity of their opinion discussed and examined by their peers. What is more, it is clear that when the meeting actually took place the applicant, Mr Semple, was allowed to express his own contrary opinion.

[4] Turning now to the second issue, it seems to us that, whatever may have been said at the time, it cannot have been within the contemplation of any of those present that the President should offer his resignation in a situation where the opinion which had been expressed had the support of senior counsel. In any event, we are of the opinion that, properly construed, and with particular reference to the phrase “offered to resign”, what was said amounted to no more than a statement of intent. As such, it was capable of being withdrawn at a later date, particularly where circumstances had altered in the interim.

[5] What we have said above is in large measure contained within the reasons given by the respondents for their decision and on the whole matter we do not consider that they either erred in law or acted irrationally in holding on the material before them that the Complaint in question was wholly without merit. In our opinion, therefore, the present application falls to be dismissed.

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