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GOOD FOR LAWYERS: Challenging year for ‘toothless, waste of time’ Scottish Legal Complaints Commission as complaints against lawyers rise again amid claims regulator has little impact on rogues of the legal world

Lawyers regulator proves no deterrent to poor legal services. SCOTLAND’S ‘independent’ regulator of legal services has admitted complaints against rogue solicitors & law firms have again risen in the past “challenging year” according to the latest Annual Report 2016-17 of the Scottish Legal Complaints Commission (SLCC).

The SLCC’s past year was marked by the Anderson Strathern appeal, in which Court of Session judge Lord Malcolm – real name Colin Campbell QC – ruled unlawful the SLCC’s previous practice of classifying certain single issue complaints as hybrid (raising issues of both service and conduct).

However, an investigation of the ruling by Lord Malcolm – who is also a Privy Councillor – revealed a top QC who was identified in complaints relating to the acceptance of £5,000 a time cash payments  and accusations of misrepresenting clients in a case directly involving Lord Malcolm – escaped investigation as a result of the same Court of Session ruling on 31 August 2016.

Earlier this year, the SLCC was branded a “toothless waste of time” by Alex Neil MSP (SNP Airdrie and Shotts) – who called for major reform of the Scottish Legal Complaints Commission after a Sunday Mail investigation revealed the SLCC refused to investigate serious complaints & cash payments involving ‘top’ planning law QC John Campbell (67) of Hastie Stable & Trinity Chambers.

Speaking to the Sunday Mail, Alex Neil said: “These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change.”

Mr Neil continued: “Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.”

“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”

A full report on the John Campbell case impacted on by Lord Malcolm’s ruling can be found here: CASH ADVANCE: QC says ‘Can I have £5k cash on the way to the Law Society?’ – MSP calls for reform of ‘toothless’ Scottish Legal Complaints Commission as regulator turns blind eye on Advocates cash payments scandal.

Further litigation occurred with the Law Society of Scotland over the SLCC’s power to then reclassify cases, in which the court eventually found for the Legal Complaints Commission but resulted in a large number of complaints being suspended, with no progress made until the ruling in June.

Over the year, complaints received rose from 1,132 to 1,155, up 2% on top of the previous year’s 12% rise.

However, an analysis of the complaints statistics, and contact with persons raising complaints with the pro-lawyer Scottish Legal Complaints Commission reveal the SLCC is more often than not – too eager to knock back complaints against solicitors – in a similar manner once practiced by the Law Society of Scotland.

In the past year, a total of 414 cases were accepted for conduct or service investigation, or a combination of the two (previous year 408), and 171 (compared with 226) were deemed ineligible as time barred or being “frivolous, vexatious or totally without merit”.

A further 251 cases (previous year 188) were resolved, withdrawn or discontinued without a formal investigation.

Solicitors accounted for 410 of the complaints accepted while 4 of the cases related to members of the Faculty of Advocates.

However, this year, the success rate of mediation was much lower – indicating perhaps complainants have become wise to a process dubbed as “rigged” by some, after it was discovered some ‘independent’ mediators have connections to some of the law firms facing complaints investigations.

In the past year, mediated resolutions were achieved in only 27 complaints (44 the previous year), a lower success rate than previously at 58%.

Sixty three cases were resolved during or at the conclusion of the investigation stage (down from 128), and the number receiving a final determination by a committee of commissioners fell from 102 to 95, of which 44 (down from 58) were upheld in whole or part.

The number of investigations in hand at the year end rose from 664 to 807, having jumped from 473 at the start of the previous year.

Residential conveyancing was again the most frequent area of complaint, at 22% of those received, closely followed by litigation (21%), then executries, wills and trusts (14%), family law (10%) and crime (7%). Commercial property and leasing accounted for 4%, as did “personal conduct”. Other categories of work, each comprising fewer than 3% of complaints, accounted for the remaining 18%.

Regarding the nature of the complaint, however, failure to communicate effectively was a clear leader at 26% (but down from 43%), followed by failure to advise adequately (20%, up from 14%), failure to provide information (14%, down from 15%), failure to prepare adequately (11%, up from 6%), failure to follow instructions (10%, up from 6%), and delay (unchanged at 8%). Other categories made up 6% of cases.

The accounts for the year, also published today, disclose a net operating loss up from £114,000 to £194,000, though income rose from £2.714m to £2.763m. Net assets fell from £675,000 to £421,000.

This year the current Chair, Bill Brackenridge, comments on coming to the end of his statutory term after five years as well as this year’s performance: “the SLCC has sought to drive efficiency within the current statutory process whilst making bold calls for reform.  This year we were pleased to see the Scottish Government announce an Independent Review of the Regulation of Legal Services, and we will continue to contribute to work to improve the regulatory and complaints system for consumers and lawyers”

“This year complaints against lawyers continued to rise, a further 2% on top of 12% last year.  We recognise that complaints form a tiny proportion of overall transactions in which lawyers support clients, but increasing case load continues to be a key factor in performance and costs.  This year we have also seen a continuing trend towards more complaints entering the later stages of our process.  To tackle this we’ve worked to support consumers and the sector with guides to reduce the common causes of complaints.”

SLCC Chief Executive Neil Stevenson added “this has been a challenging year, with significant litigation that has driven delays and costs and which was outwith our control.  We are delighted the court upheld our position, and hope we can now move beyond some of these challenges to work with others in the sector to improve confidence in regulation.

On a personal level one of the organisational achievements we all contributed to, and which I am most proud of, is a significant improvement on our staff engagement survey results. I’m also delighted that we are in the rare position of gender pay parity.”

The SLCC’s Annual Report and Annual Accounts are laid before the Scottish Parliament by the Minister for Community Safety and Legal Affairs.

In the past NINE years since the Scottish Legal Complaints Commission was created in 2008, the Law Society backed ‘independent’ regulator of complaints against legal practitioners in Scotland – including solicitors and advocates – has more often than not seen year on year rises in complaints while becoming involved in protracted orchestrated arguments with lawyers over funding for the legal quango.

In reality, funding for the SLCC – running at around £3million a year – is secured from a client sourced complaints levy – where hikes in solicitors legal fees to clients & consumers are used to pay for the upkeep and operation of the Scottish Legal Complaints Commission.

Since 2008, the SLCC has received nearly £30 million of client sourced funds – yet it is now clear the pro-lawyer quango has had little impact on the generally poor standards of expensive legal services available in Scotland.

Currently the Scottish Legal Complaints Commission is involved in lobbying against a Scottish Parliament investigation into self regulation of the legal profession, a full report on this can be found here: LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services.

The SLCC, along with the Law Society of Scotland and other legal interests have made submissions to the Scottish Parliament’s Public Petitions Committee calling for MSPs to hold off on hearing petitions calling for independent regulation – until a Scottish Government review on regulation of legal services reports back at the end of 2018. The ‘independent’ review, is in actuality being run by lawyers.

ANOTHER DAY IN COURT – Unidentified Law firm accused in client complaints fails in bid to overturn investigation

The Court of Session recently ruled in favour of the SLCC in refusing an application by a firm of solicitors for leave to appeal one of the Commission’s decisions. The application came from a firm seeking leave to appeal a decision that a number of issues of complaint were accepted as eligible services complaints and were not frivolous, vexatious or totally without merit. It was unusual in that only some issues of complaint accepted were being appealed.

The full findings – by Lord Glennie are available here: NOTE OF REASONS delivered by LORD GLENNIE in the application for leave to appeal by X LLP AND OTHERS (Appellant) against SCOTTISH LEGAL COMPLAINTS COMMISSION (Respondent).

However, it should be noted the Court ruling does not identify the law firm involved.

The SLCC’s eligibility determination that some issues of complaint should be accepted for investigation represents what is essentially a sifting function to establish whether issues of complaint require investigation. The Court endorsed the already established view that at this stage there is a low bar for accepting issues of complaint, Lord Glennie’s Notes of Reasons stating “the Commission has to decide in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if it decides the complaint is any or all of these things, it must reject the complaint and notify the relevant parties.  That is a high test to be applied or, to put it another way, is a low threshold to be crossed.”

Mark Paxton, one of the SLCC’s Case Investigation Managers, explained “there can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute.  We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage.  We know others can think the eligibility decision is an early indication of eventual substantive outcome, which is not the case – it is simply a decision that matters need formally investigated to have sufficient information to make a decision. We are also aware that, for practitioners, the fact that this is a formal “decision”, appealable to the Court of Session, suggests that it is somehow already a stain on the practitioner’s record – which again is just not the case.”

Lord Glennie went on to reiterate that “the nature and extent of the investigation to be carried out by the Commission, and how they go about it, is pre-eminently a matter for the Commission itself.”  Having considered that there was no basis for establishing that the SLCC had erred in law or acted irrationally the Court refused leave to appeal the decision.

What was also highlighted in this case was the time and resource expended by the SLCC in carrying out this sifting function. The Court also made reference to the detail in which the SLCC had dealt with this determination, stating “The Commission’s decision in the present case is very fully reasoned… The decision deals with each complaint individually and over a number of paragraphs”.

The resources expended by the SLCC in relation to appeals bears a significant financial cost to the organisation. In this particular case, costs will be recovered following the decision of the Court to award expenses. However such an award is unlikely to recompense the full cost of all work done in relation to the appeal, and the process of contesting appeals continues to be a significant factor which the SLCC has to contend with in managing its budget.

Neil Stevenson, CEO added: “The expense of appeals has been a key driver of increasing cost in the last two years. Looking at other complaints bodies and ombuds it is very unusual for a right of appeal, especially to such a senior court, to be provided for in a complaints process on a decision simply that something needs investigated.  Our current proposals for statutory reform recommend that a more proportionate approach should be considered.”

The SLCC itself was created at a cost of over £2 million pounds of public cash in 2008 – by a Scottish Government team led by Angela McArthur – who was since appointed as Chief Executive of the Parole Board of Scotland from 2009 to present day.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

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LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services

Ministers, lawyers & legal regulator seek Holyrood probe delay. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has received representations from Scottish Ministers , the Chair of a pro-lawyer review panel and a Law Society-backed legal regulator – calling for MSPs to back off from investigating regulation of legal services.

Unsigned letters from the Scottish Government, the Chair of an ‘independent’ review group dominated by lawyers, and the pro-lawyer Scottish Legal Complaints Commission (SLCC) – call on members of the Scottish Parliament’s Public Petitions Committee to wait until the end of a two year review – conducted by lawyers – before MSPs conduct any independent investigation of lawyers investigating themselves.

A letter from the SLCC states: “The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.”

However, in reality the issues raised by the SLCC in a report titled “Reimagine Regulation” do little for consumer protection, leaving complaints and investigations firmly in the hands of lawyers, as was reported last year, here: ROGUES REIMAGINED: Scottish Legal Complaints Commission calls on Scottish Government to reform “complex and legalistic” solicitors’ self regulation & complaints system

Meanwhile, representations from the Scottish Government, and an unsigned letter from the Chair of a lawyer dominated review panel – are careful not to demand outright, but infer MSPs halt their consideration of calls to scrap the historically biased system of self regulation of lawyers in Scotland.

The latest submissions from the three pro-lawyer groups come in the wake of a call for evidence by the Scottish Parliament’s Petitions Committee on two public petitions seeking to replace self regulation of the legal profession in Scotland with fully independent regulation of legal services – as occurs in England & Wales.

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

Earlier this year, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the ‘independent’ review created by the Scottish Government, should include judges – and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

In another development, Alex Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC – John Campbell – who is caught up in a cash payments scandal – which has since led to information provided to journalists on other Advocates & QCs who have demanded & pocketed substantial and apparently undeclared cash sums from clients.

During the debate on the two petitions – on 21 September – members of the Public Petitions Committee agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

It is also open for anyone else to put their views to the Petitions Committee on these petitions, or for constituents to request their MSPs submit material on their constituents behalf.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

The latest submissions from the Scottish Government, the Chair of the Independent Review of the Regulation of Legal Services and the Scottish Legal Complaints Commission, are reprinted below:

PE1660/E & PE1661/E Scottish Government submission of 6 November 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on petition PE1660 by Bill Tait with regards to the operation of the Scottish Legal Complaints Commission, and petition PE1661 by Melanie Collins regarding amending the regulation of the complaints about the legal profession.

The independent review of the regulation of legal services, announced in April 2017, has been set up to look into these matters and that we understand that the chair, Esther Roberton, will be responding to the committee separately.

The chair is due to report to Ministers by the end of July 2018 and will include the review findings around the complaints handling system.

PE1660/D & PE1661/D Chair of the Independent Review of the Regulation of Legal Services submission of 23 October 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on the calls from Bill Tait to review the operation of the Scottish Legal Complaints Commission, and from Melanie Collins to reform and amend the regulation of complaints about the legal profession in Scotland.

The independent review of the regulation of legal services was announced by the Minister of Community Safety and Legal Affairs, Annabelle Ewing on 25 April 2017. I chair the review and my deadline to report to Ministers is by the end of July 2018.

As described in the remit for the review, which is broad, its purpose is to make independent recommendations to reform and modernise the statutory framework for the regulation of legal services and complaints handling. We are committed to ensuring that our recommendations focus on consumers, providers of legal services and the market place for legal services in Scotland. The time is right to appraise the regulatory system, which last saw substantial changes as a consequence of the 2010 Act, and which the current regulators and others agree is ready for review.

The panel, made up of individuals with experience in legal services, consumer interests, regulatory systems, and complaints systems have met five times to date.

Gathering evidence from a full range of stakeholders with an interest in our work is crucial to help inform our findings. This includes professional bodies, regulators, consumer bodies, a wide range of providers of legal services, business organisations and others. Stakeholder events will take place in November-December, with a formal call for evidence launching at the turn of the year.

The review is also considering relevant information such as regulation in other sectors and in legal services regulatory systems from other parts of the world, and has commissioned a specific study into unregulated legal services.

I have copied this letter to the Justice Committee and am happy to provide further updates if either committee wishes those in due course.

PE1660/C & PE1661/C Submission from Scottish Legal Complaints Commission of 31 October 2017

Thank you for your letter of 26 September about the Petitions Committee on 21 September about petitions PE1660 (Bill Tait) and PE1661 (Melanie Collins) relating to regulation and complaints in legal services.

We spoke on 27 October. For some reason, which neither of us could identify, we had not received the original letter, although had been expecting it and indeed had emailed on 10 October to ask if we were to receive such a letter. We’re very grateful, therefore, that you allowed us a short extension to respond.

We agree there is a strong case for reform in some areas, we have actively lobbied for this, and we’re confident the current Independent review of the regulation of legal services will address matters.

In this letter the SLCC sets out our general position on reform first, which significantly pre-dates the petitions, and then addresses some specific issues raised in the petitions.

THE SCOTTISH LEGAL COMPLAINTS COMMISSION

The Scottish Legal Complaints Commission (SLCC) is the independent gateway for all complaints about solicitors, advocates and commercial attorneys. We have experience of handling over 10,000 complaints, and last year alone awarded consumer redress over £324,000. An independent Consumer Panel also helps guide our work.

For a two-page summary of our work, and its impact on consumers see: https://www.scottishlegalcomplaints.org.uk/media/69464/annual review.pdf

OUR PROPOSALS FOR REFORM

The SLCC has actively called for radical change to the regulation of the sector. In July 2016 we published our paper #ReimagineRegulation, which is available on our website: https://www.scottishlegalcomplaints.org.uk/reimagine-regulation.aspx. A detailed set of supporting appendices provide, among other things, a history of the Scottish Parliament’s involvement in these issues since the parliament’s creation.

We hope this is of assistance to the Committee.

The SLCC robustly highlighted key areas for change which we believe could deliver better results for the sector and for the consumer:

1. Unravelling the current complex complaints maze

Up to four statutory bodies can be involved in a single case, causing duplication and delay. We provide a visual representation of the ‘customer journey’ to highlight the current problems.

2. Reducing statutory detail that focuses on processes, not outcomes for people

Complex and inflexible processes have lost sight of the principles of better regulation and distracted from a focus on the outcomes for the public and sector.

3. Ensuring that when redress is awarded the client receives it

In too many cases redress is awarded but failings in the current system mean the complainer does not receive it, undermining confidence in the system.

4. Targeting risk, and not seeing all legal services as the same

For example, conveyancing is a major driver of all regulatory costs across more than one statutory body – how do we either better support, or more proportionately regulate, in that area to reduce this consumer detriment?

5. Embedding the consumer principles

Professional voices in debates in regulation are always informed, strong, and well resourced. We need to understand consumer’s need, and hear their voice, if regulation is to be credible.

6. Learning from complaints and data to improve future outcomes

Modern regulation is about identifying and targeting risk, and creating proportionate and agile structures to tackle issues in fast moving markets. 10 years after our establishment we too often find it is the same basic issues causing problems with consumers, with little done (it being outwith the SLCC’s remit) to tackle the root cause.

SPECIFIC ISSUES RAISED IN THE PETITIONS

A key question is raised about a single regulator, or at least complaints body, and the SLCC believe this merits serious consideration. The cost and confusion caused by four different bodies, for a sector of only 11,000 professionals, is an issue in its own right.

Even if a single body is not eventually possible, debating that model will more sharply focus the discussion on the core purpose and aims of regulation in the sector, and the key mechanism to reduce risk and support a sustainable market, rather than starting discussion from the perspective of the current fragmented roles and responsibilities.

The SLCC also agrees oversight issues need considered. At the moment there is a fractured framework. For example, whilst the SLCC is overseen by an independent Board of Commissioners appointed by government, is subject to Freedom of Information, and comes within the remit of Audit Scotland, not every organisation involved in regulation is currently so transparent, nor under such financial scrutiny. At the moment no bodies, including the SLCC, come under the best practice promoted by the Regulatory Reform (Scotland) Act 2014. As we continue the journey of the modernisation of legal regulation a single approach to oversight, with consistent minimum legislative requirements, would be a positive outcome.

Several statutory levies are payable by lawyers, and the value of the fees, and the balance of spending between regulatory and representative functions, should be considered in the round. None of the bodies currently involved have their budgets approved by parliament. In all governance matters legislation is balancing the need for regulation independent from government with what are appropriate governance structures. As with many issues raised, this may be best looked at in the round, as from the lawyer and consumer perspective it is the total cost of regulation which is key.

The SLCC had already raised concern at the only route of appeal being to the Court of Session. This point was made in our paper last year about reform, and we believe the legislation should be amended to allow a more proportionate mechanism. This is part of reducing the current complaints maze, so there is a single investigation, and single set of decisions, and a single appeal.

The SLCC supports the emphasis placed on independent regulation. We believe expert input into regulation is absolutely essential, and that a regulator must be credible to the profession as well as the public. However, the best model for delivering this has been contentious in previous parliamentary debates. The overwhelming trend in UK terms for regulation has been around an ongoing journey from self-regulation to independent regulation (for example, only today, joint work has been published by the four UK health departments on the evolution of governance in the regulation of health professionals:

https://www.gov.uk/government/consultations/promoting-professionalism-reforming- regulation para 4.18 onwards). These petitions highlight that this is likely to be the expectation of the public.

In all of this public and consumer voices are vital. There is a deeply worrying lack of independent research into consumer needs and detriments in Scotland in the legal sector. The SLCC’s Consumer Panel has been instrumental in flagging this in recent years. However, the government’s own previous review of legal regulation in 2006 had raised this as a concern, and the situation has, if anything, deteriorated further since then (for example with Consumer Focus Scotland no longer in existence and doing work in this field). A top priority should be the creation of a better evidence base from those who use services, alongside the professional voices.

Ignoring those consumer voices has consequences, and this is relevant to one specific issue raised in this petition. In debating the legislation that led to the creation of the SLCC consumer groups valued transparency, and that the SLCC should be able to publish decisions about complaints. However, after extensive lobbying by other interests a decision was made that not only would the outcome of complaints not be published, but that a new criminal offence would be created for any divulgence of information, an offence so wide that it covers even confirming if a complaint has been received. This is out of step with other professions and sectors, and other jurisdictions, where there is more discretion to publish when there is public interest. The SLCC understands the frustration of complainers, but must abide by the current legislative framework. As with most issues covered in the petition, we had raised this ourselves last year in our paper on reform.

LEVY

We noted in the discussion within the committee mention of our consultation on the levy for solicitors last year (the fees all solicitors, advocates and commercial attorneys need to pay each year, set to cover the cost of processing complaints).

Although in past years the SLCC had managed to reduce the levy, a significant increase was proposed last year. This was driven by a number of factors, the two biggest of which were a rise in complaints and a judicial review, and 17 appeals to the Court of Session, launched by the Law Society of Scotland.

The rise in complaints had been steep, with a 12% increase in complaints against solicitors within 12 months. This has now been followed in the subsequent year by a further 2% rise, and current predictions are that complaint numbers are continuing to increase. We recognise paying the cost of complaints is not popular with any sector, and as a member led organisation the Law Society would always challenge costs, but a more positive debate would have focussed on how to tackle the common cause of complaints and reduce harm to the public.

In terms of the number of litigations by the professional body, we were pleased to win the ‘test case’, and to have the court confirm SLCC had been acting in a way consistent with ‘good public administration’. We had publicly warned these litigations would cause cost, delay and worry to complainers and practitioners, and were unnecessary, as proved to be the case. We were disappointed that in their lobbying against the levy the Law Society did not mention its own actions were one of the big drivers of cost.

CONCLUSION

I hope our #ReimagineRegulation paper displays a body which is not only ‘up for’ change, but actively trying to stimulate a debate about how parliament, government, consumers and the profession can work together to create a better system in Scotland.

The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.

Reimagine Regulation – SLCC priorities for a consultation on legal services regulation

Reimagine Regulation – SLCC appendices to our main paper

SLCC Annual Review 2017

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•     Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•     Trisha McAuley OBE – independent consumer expert

A full report on the Scottish Government’s review of legal services – unmasked as a lawyer dominated pro-self regulation panel – can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

 

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LOOK AFTER LAWYERS: Law Society wants to keep 70 year ‘successful’ system of lawyers investigating themselves – in response to Scottish Parliament petitions calling for UK style independent regulation of legal services in Scotland

Law Society says lawyers should investigate themselves. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has heard claims lawyers have successfully investigated themselves for seventy years – and that this ‘arrangement’ should continue.

Members of the Scottish Parliament’s Public Petitions Committee have now received the views of the Law Society of Scotland , and Scottish Solicitors Discipline Tribunal  (SSDT) – who both want to continue the current system where lawyers maintain their own ‘standards’, write their own rules, and investigate complaints against themselves.

The Law Society of Scotland stated in a letter to MSPs – PE1660B and PE1661B: Law Society of Scotland“the dual role of regulation and professional support has been successfully carried out for almost 70 years”

The Law Society goes on to claim “This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.”

However, thousands of complaints a year made against solicitors in Scotland by clients who end up considerably worse off financially after bruising encounters with lawyers even on the most common legal services show the profession’s self regulation model as predominantly dishonest.

The Scottish Solicitors Discipline Tribunal – who were exposed in a BBC Scotland documentary for shying away from striking off serially dishonest solicitors – ‘suggested’ in their own letter to MSPs – PE1660 A and PE1661: Scottish Solicitors Discipline Tribunal – that the Scottish Parliament wait until a two year review is complete before considering the petitions.

The Disciplinary Tribunal said in it’s letter to the Committee: “The Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions”.

However, the Scottish Government review referred to by the Disciplinary Tribunal –  has already come in for stinging criticism due to it’s dominant complement of vested interests from the legal profession who lobby against any change to the current system of regulation where lawyers investigating themselves.

The letters come in response to petitions being considered by the Public Petitions Committee calling for a radical overhaul of the way complaints against the legal profession are handled in-house by the Law Society and ‘independent’ Scottish Legal Complaints Commission (SLCC).

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by Holyrood to look at the issue of self regulation of lawyers – comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

A full report on the Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

During the last debate on the two petitions, members of the Public Petitions  Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

If proposals within the petitions go ahead, this would bring regulation of legal services in Scotland into line with independent regulation as practiced in England & Wales.

The full letter from the Law Society of Scotland to the Public Petitions Committee:

PE1660/B PE1661/B Law Society of Scotland submission of 16 October 2017 REGULATION OF THE SCOTTISH LEGAL PROFESSION

Thank you for your letter of 29 September. We are grateful for this opportunity to feed into the Committee’s consideration of petitions PE1660 and PE1661.

As the professional body for Scottish solicitors, we share the petitioners’ desire to improve the regulation of legal services. The Scottish legal sector has evolved considerably since the introduction of the Solicitors (Scotland) Act 1980, which is the main legislative framework governing the regulation of legal services. We are clear that reform is needed, both to protect clients’ interests and to ensure the legal sector, which contributes so significantly to the Scottish economy, can be competitive and continue to thrive.

We approach these issues with almost 70 years’ experience of delivering robust regulation of the legal profession. As the principal regulator of Scottish solicitors, we take our duty to protect the public interest extremely seriously, a fact demonstrated through the range of activity which we carry out.

First and foremost, we set high professional standards which all solicitors must meet, including a robust route to qualification along with practice rules and guidance which is regularly reviewed. Our highly trained financial compliance team inspect around 370 law firms each year to ensure compliance with our strict accounts rules. In 2015/16 and as a result of these inspections, we raised 17 complaints of our own to the Scottish Legal Complaints Commission (SLCC). Additionally we intervene quickly in firms when things go wrong, ensuring clients know who to contact, where their files are and offering the assurances they need. Even when clients choose to no longer pursue an initial complaint against their solicitor, we will raise our own complaint if it is in the public interest and in order to maintain standards. In total we raise around 30 complaints a year against solicitors to the SLCC.

By setting, maintaining and vigorously enforcing standards, we strive to ensure that consumer interests remain the central focus of our regulatory work and that consumer confidence in the Scottish solicitor sector remains high. A poll of the Scottish public in

2016 indicated that 90% of those surveyed are satisfied with the services provided by their solicitor and 82% would recommend their solicitor to others. That poll also demonstrated high levels of trust in the legal profession as a whole.

The case for change: We recognise that, despite the strong system of regulation in place, further work is needed to improve that system. This is particularly true around the area of complaints handling, where processes need to be simpler and consumer protection stronger. Given the regulatory framework and processes involved are set out within primary legislation, we are afforded little flexibility within the existing system. This is why we proactively approached the Scottish Government in 2015, submitting a detailed paper which set out the case for new legislation to better protect consumers and allow the legal services market to thrive . Our proposals include better regulation of legal firms and individual solicitors to improve standards in addition to a wider regulatory reach over other legal professionals.

This is in response to the dramatic changes we are seeing in the Scottish and UK legal services market. New expectations from clients, new business models, the growth of cross border legal firms and increased technology are all serving to reshape that market. Yet most of the legislation covering the operation and regulation of the legal market is approaching 40 years old and did not anticipate the changes we are seeing today.

Whilst taking forward reform, we also believe it vital to preserve the elements and principles of the current regulatory framework which work well – the independence of the legal profession; a single professional body; independent discipline body. These must be protected.

We were delighted that, in response to our proposals, the Scottish Government established the independent review of the regulation of legal services, now being chaired by Esther Roberton. We believe this offers a real opportunity to develop a consensus on what reforms are required and how they can be effectively delivered.

The complaints system: We note the ultimate aim of both petitions is to urge the Scottish Parliament and Scottish Government to review complaints about providers of legal services in Scotland. We share the petitioners’ concerns and frustration in relation to the complex and unwieldy complaints process that currently exists from the existing legislation.

The introduction of the Legal Profession and Legal Aid (Scotland) Act 2007 created the Scottish Legal Complaints Commission (SLCC) which opened on 1 October 2008. The SLCC is a complaints handling body which operates independently of the Law Society and Scottish Government. It has important oversight powers in relation to the handling of conduct complaints by the legal professional bodies, including the power of audit in addition to other consumer protection matters. Under the provisions of the 2007 Act, the Law Society retains the responsibility for managing and investigating complaints relating to the conduct of Scottish solicitors.

We regularly engage with the SLCC and enjoy a close working relationship of mutual respect and recognition. We discuss shared matters of concern and ideas for improving the complaints process to the benefit of complainants and the legal profession. We are frequently in discussions with the SLCC and other stakeholders with regard to the various challenges which the 2007 Act raises in relation to legal complaints, in particular the complex processes at the gateway / eligibility stage which result in unacceptable delays.

We believe the whole system for managing legal complaints needs to be changed to make the processes involved easier and quicker for the consumer. We are currently in discussions with the SLCC regarding an interim solution which could be delivered through secondary legislation. This offers the chance to improve the system by speeding up the eligibility stage of the complaints process until such time as more permanent changes can be made.

Given that there is no ability for a complainer to make a complaint on the SLCC’s handling of a service complaint, we strongly believe there should also be independent oversight of the SLCC, particularly as the SLCC perform the oversight functions of the Law Society of Scotland and Faculty of Advocates relating to conduct complaints.

We note that during the Committee’s meeting of 21 September 2017 a number of members referred to the Law Society’s campaign which resulted in many solicitors contacting their local MSPs to express concerns over the increase in the SLCC’s budget for 2017/18. During this campaign, we raised concerns that the SLCC’s budget could not be formally objected to by Ministers or by Parliament. This emphasises the challenge about the lack of effective independent oversight of the SLCC. I enclose a copy of the standard letter which formed the basis for many of the emails sent to MSPs earlier in the year. We would be happy to provide further background information or meet members of the Committee to further clarify the circumstances that led to the campaign and our position.

We have provided some further information on each petition below:

PE1660:  The petitioner argues that the existing appeals route against decisions by the SLCC, via the Court of Session, forms a barrier to those who wish to appeal.

We fully agree with this view. We recognise that the concept of pursuing legal action against a public body via the court can be a difficult and daunting process.

The requirement to obtain the leave of the Court of Session can put the appeal option out of reach for the majority of complainers, even where they may have fully justified grounds for appealing. This compares starkly to the situation regarding conduct complaints dealt with by the Law Society. Here, if a complainer is not happy with the way we have handled a complaint then they have the option of taking a ‘handling complaint’ to the SLCC. Whilst this does not amount to an appeal, the SLCC can recommend the matter be re-opened for further consideration if due process has not been followed or the decision lacks reasoning. Furthermore, a complainer can appeal a decision directly to the separate and independent Scottish Solicitors’ Discipline Tribunal (SSDT).

There is no equivalent process for those complaints dealt with by the SLCC. The only recourse is through seeking leave of the Court of Session. We believe there is a case for reviewing this and hope the work being undertaken by Esther Robertson and her review group will consider this point.

The petitioner also states that the Law Society ‘appears to desire no involvement, nor introduce quality control’ in the SLCC’s handling of complaints’. It is important to stress that the current legislative framework provides us no role of oversight of the SLCC, its processes or its decisions. Even where there may be occasions that we disagree with a service complaint decision of the SLCC, there are no special mechanisms which allow us to challenge or raise this other than the general provision which are available to the general public.

We also note that comment is made in the background notes on the process by which the SLCC lays reports before Parliament for information only. The provisions of the 2007 Act (Schedule 1 paragraph 16) provide that the SLCC must lay their annual report before Parliament at the end of each financial year. This is in addition to the laying before the Scottish Parliament of the SLCC budget by the end of April each year. These are laid for information only and Parliament has no statutory powers to comment on or amend these in any way. As I have already outlined, we do believe that greater oversight is needed of the SLCC and its performance, a fact which came into stark focus during the budget issues earlier this year.

PE1661: Central to this petition is the call for a wholly independent regulator of legal services in Scotland with no ties to the profession.

The Law Society of Scotland’s dual role of regulation and professional support has been successfully carried out for almost 70 years. This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.

At the core of any profession is a commitment to provide the best possible service to the consumer while recognising it has a responsibility to act in the public interest in all that it does. The regulation of the profession is the means by which the profession ensures these aspirations are met.

Our dual role is essential in ensuring that Scottish solicitors deliver the highest practical and ethical standards. To ensure we maintain a practical distinction between our two roles, our regulatory function is clearly separated and works independently of our professional support work. That regulatory activity is overseen by the Regulatory Committee in accordance with the provisions of the Legal Services (Scotland) Act 2010. This means it is an independent committee. The Law Society Council is not permitted to unduly interfere with the work of the Regulatory Committee, nor with the work of its sub- committees which are responsible for taking specific regulatory decisions. This is all clearly set out in legislation. To strengthen that independence, the Convener of the Regulatory Committee is chosen by the committee and must be a lay member. Our current convener Carole Ford comes from the teaching profession, bringing both an expertise in standards setting and enforcement but also a clear commitment to the public interest. The committee she chairs has an equal number of solicitor and non-­solicitor members – another element set out in legislation.

The concept of a single professional body, with both regulatory and professional support functions, is a model seen in other sectors in Scotland and also in other legal jurisdictions around the world.

Here in Scotland, we have the Institute of Chartered Accountants of Scotland (ICAS), the Royal Incorporation of Architects in Scotland (RIAS) and the Royal Institution of Chartered Surveyors (RICS). The teaching profession in Scotland recently moved from separate bodies into the single professional body that is the General Teaching Council. There is clear recognition across a number of professions that having a single professional body is the right approach, particularly given the size of Scotland.

Further afield, Law Societies and Bar Associations around the world have dual responsibility for regulation and professional support. These include the Law Society of Ireland, Law Societies in the provinces of Canada and states of Australia as well as bar associations in US states such as California, Florida and Texas. It provides a cost effective, practical, and coordinated professional approach which works in the interests of the consumer.

Nevertheless, we recognise the specific areas of concern which the petitioner highlights. The petitioner’s background information notes how the Law Society of Scotland cannot become involved in the decisions of the independent complaints handling body, the SLCC. If there is concern over the accountability of the existing independent complaints body, we do not agree that the way to correct this is to create a new regulatory body. Rather it would be better to create the kind of effective oversight of the SLCC which I have described earlier, the kind of oversight which the Law Society faces from our own Regulatory Committee, the SLCC, the SSDT and the Courts.

The background notes also assert that over 600 complaints were dismissed as a result of the court ruling in Anderson Strathern vs. SLCC (CSIH 71XA16/15). As a result of the ruling, which affected around 250 complaints already in the system, the Court of Session has now made a further judgment on the way these cases should be dealt with . We are working with the SLCC to implement the judgment which centres on the way the SLCC have categorised complaints.

We have worked constructively and collaboratively with the Parliament and other organisations throughout the passage of the Acts of the Scottish Parliament referred to in the petition background notes. As a professional body which has a statutory duty to protect and further the interests of the public and consumers, we have put forward proposals which demonstrate our commitment to these values.

As I have noted, the Scottish Government appointed an independent group to review the provision and regulation of legal services in Scotland, chaired by Esther Roberton. The Committee may wish to consider contacting the review group regarding opportunities for the public, including the petitioners, to present their views on the complaints process for consideration.

Thank you again for the opportunity to respond to these petitions. If we can provide any further points of clarification or aid the Committee’s consideration of these petitions further, please contact our Legislative Change Executive.

The letter from the Scottish Solicitors Disciplinary Tribunal (SSDT) to the Public Petitions Committee:

PE1660/A PE1661/A  Scottish Solicitors’ Discipline Tribunal submission of 13 October 2017

Introduction: The Public Petitions Committee met on 21 September 2017 to discuss petitions PE1660 and PE1661. In short, these conjoined petitions call on Parliament to urge the Government to review and reform the system of legal complaints in Scotland by comparing it to the system in operation in England and Wales. The Committee determined to seek the views of various stakeholders including the Scottish Solicitors ’ Discipline Tribunal.

Current system: It may assist the Public Petitions Committee to understand the place of the Tribunal in the system of legal complaints. Complaints against solicitors in Scotland are channelled first through the Scottish Legal Complaints Commission (SLCC). The SLCC deals with matters of inadequate professional services itself. It refers conduct matters to the Law Society. The Law Society has powers to deal with unsatisfactory professional conduct itself. The Law Society may appoint a Fiscal to prosecute the most serious cases before the Scottish Solicitors’ Discipline Tribunal as professional misconduct. Individuals cannot make complaints direct to the Tribunal.

The Scottish Solicitors’ Discipline Tribunal: The Tribunal is an independent formal judicial body constituted under statute and subject to the appellate jurisdiction of the Court of Session. The Tribunal deals with complaints of professional misconduct, complaints that a solicitor has been convicted of an offence involving dishonesty or any other more serious criminal offence, appeals stemming from the Law Society’s determinations regarding unsatisfactory professional conduct, and applications for restoration to the roll of solicitors in Scotland. The Tribunal is made up of 12 solicitor and 12 non-solicitor members. At each hearing the Tribunal comprises two solicitor and two non-solicitor members. Hearings are generally held in public.

The sanctions which the Tribunal can impose are censure, fines of up to £10,000, restriction of a solicitor’s practising certificate, suspension, strike off or prohibition on restoration to the roll, and compensation of up to £5,000 for loss, inconvenience or distress if a Secondary Complainer has been directly affected by the misconduct. Every decision of the Tribunal is published in full subject to the terms of paragraph 14A of Schedule 4 to the Solicitors (Scotland) Act 1980. Occasionally publicity is deferred, for example, pending the conclusion of criminal proceedings.

The Tribunal’s mission statement is to ensure so far as possible that all cases brought before the Tribunal are dealt with in accordance with the legislative framework and the principles of natural justice, bearing in mind the importance of protecting the public from harm and maintaining public confidence in the legal profession. The Tribunal endeavours to deal with cases efficiently and expeditiously. The Tribunal has a duty to be independent, impartial and transparent.

The Tribunal is responsible for the most serious cases of misconduct relating to Scottish Solicitors. Consequently, it deals with far fewer cases than either the Law Society or the SLCC. In the year 1 November 2015 to 31 October 2016, the Tribunal met on 45 days to hear Complaints. 32 new Complaints were received during that year. The Tribunal made 22 findings of professional misconduct and one under section 53(1)(b). The Tribunal made four findings of not guilty and two were remitted to the Law Society to consider as unsatisfactory professional conduct.

PE1660 and PE1661: The Tribunal considers that the system of legal complaints in Scotland can be complicated, lengthy and expensive. To a limited extent, the procedure has been simplified following the Court of Session judgements in Anderson Strathern v SLCC [2016] CSIH 71 and Law Society v SLCC [2017] CSIH 36. However, there are still areas for improvement.

The Tribunal is currently participating in the Review of Regulation of Legal Services; its Chairman is a member of the Review. The remit of the Review is to make independent recommendations to reform and modernise the framework for the regulation of legal services and complaints handling. The Tribunal hopes that this would modernise and streamline complaints handling. The Review’s remit is to focus on the current regulatory framework and the complaints process. Its aims therefore directly cover Petition PE1660 which calls for a review of the operation of the SLCC with a view to making the process of legal complaints more transparent and independent. .

The Review also overlaps Petition PE1661 which calls for reform of the regulation of legal complaints. However, the author of PE1661 calls for this to be done by creating a new independent regulator of legal services with similar powers those held by the SRA, Legal Ombudsman, BSB and SDT in England and Wales. The Tribunal observes that the Scottish Solicitors Discipline Tribunal is the direct counterpart of the SDT in England and Wales. Similarly, the SLCC performs a broadly similar though not identical role to the Legal Ombudsman. The Law Society of Scotland’s Regulation Department performs comparable functions to the SRA. The Faculty of Advocates Disciplinary Tribunal and the Bar Standards Board also have related responsibilities. The role of these bodies in the complaints system is included in the current Review and the Review may make recommendations for changes in this.

Therefore, the Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions.

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•     Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•      Trisha McAuley OBE – independent consumer expert

 

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LEGAL REGULATION PROBE: Holyrood’s Public Petitions Committee seek views on replacing Scotland’s ‘lawyer-lawyer’ regulation – with ‘UK style’ fully independent regulation of solicitors & legal services

MSPs seek views on reform of legal regulation. TEN YEARS after the contentious passage of the Legal Profession & Legal Aid (Scotland) Act 2007 – which saw the creation of the Scottish Legal Complaints Commission (SLCC) as the lawyer-lawyer led regulator of legal services – MSPs are to seek views on creating a fully independent non-lawyer regulator of Scots legal services.

Two petitions calling for a complete reform of legal services regulation in Scotland have been debated by members of the Scottish Parliament’s Public Petitions Committee.

MSPs have now decided to call for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by MSPs comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

A full report on the Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

After members discussed the two petitions, the Petitions Committee agreed to join these petitions together for future consideration on the basis that they raise similar issues.

The Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

HOLYROOD BRIEFING: MSPs hear of differences between Scotland & UK on regulation of legal services:

Background (taken from the SPICe briefing)

Scotland – complaints against lawyers

4. The SLCC was set up by the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act) to deal with complaints against legal practitioners (primarily solicitors or advocates) in Scotland.

5. It is an independent body whose Board is appointed by the Scottish Ministers in consultation with the Lord President of the Court of Session. It is supported by a management team and staff who carry out investigations.

6. The SLCC is funded by a levy paid by legal practitioners and is required to consult with the relevant professional bodies when setting its annual budget. A copy of the finalised budget has to be laid before the Scottish Parliament no later than 30 April in each year (the budget is not, however, subject to parliamentary approval).

7. The SLCC acts as the initial gateway for complaints. Unresolved complaints have to be made to it in the first instance. Complaints made directly to a professional body (e.g. the Law Society of Scotland (Law Society) or Faculty of Advocates (Faculty)) have to be forwarded by these bodies to the SLCC.

8. Once the SLCC has received a complaint, it assesses whether it is a:

1. Service complaint – i.e. related to the quality of work; or a

2. Conduct complaint –i.e. related to a legal practitioner’s fitness to carry out work and behaviour outside of business.

7. Cases often involve issues of both service and conduct, with the result that both the SLCC and professional bodies can investigate different aspects of the same complaint.

8. If the complaint, or part of the complaint, concerns inadequate professional service, the SLCC investigates following procedures laid down in its rules and the Act. The SLCC can ultimately:

• Award the complainer up to £20,000 for any loss, inconvenience or distress resulting from inadequate professional service.

• Require the relevant legal practices/practitioners to reduce fees, re-do work and rectify any mistakes at their own expense.

• Report the matter to the relevant professional body if the practitioner shows a lack of legal competence.

9. Decisions of the SLCC can be appealed to the Court of Session.

10. If the complaint, or part of the complaint, concerns the conduct of a legal practitioner, the SLCC passes it on to the relevant professional body to investigate. The SLCC is not permitted to investigate conduct complaints, but it can investigate the way these have been handled by the relevant professional organisation (known as a handling complaint).

11. The Law Society is able to impose sanctions on solicitors whose conduct has been “unsatisfactory” and can prosecute solicitors before the Scottish Solicitors Discipline Tribunal (SSDT) where behaviour amounts to professional misconduct. The maximum compensation payable to a complainer is £5,000. In the most serious cases the SSDT can suspend a solicitor’s practising certificate or strike them from the roll of solicitors.

12. The Faculty deals with conduct complaints through a Complaints Committee comprising an equal number of advocates and lay members. Its decisions can be appealed to the Faculty of Advocates Disciplinary Tribunal – chaired by a retired senior judge and whose members include advocates and lay persons. In September 2016 the SLCC published a report which audited the operation of the Facultys investigation and disciplinary processes.

13. For further details on the complaints system see:

• The SLCC’s overview of the process for dealing with service and conduct complaints.

The Law Societys overview of how it deals with conduct complaints,

The Facultys overview of how it administers conduct complaints

14. In recent years there has been a degree of conflict between the SLCC and the Law Society over the operation of the complaints system. For example, in December 2016, the Law Society announced that it had commenced legal action against the SLCC over the way in which it categorises complaints as service complaints or conduct complaints. In addition, in April 2017 the Law Society noted in a press release that it was “frustrated and disappointed” about the increase in the SLCC levy to be paid by solicitors. The press release also referred to the complaints system as being, “slow, complex, cumbersome and expensive.”

England & Wales – complaints against lawyers

15. In England & Wales complaints about poor service against legal practitioners are dealt with by the Legal Ombudsman. Issues of professional misconduct are referred to the relevant “approved regulator” – i.e. the Bar Standards Authority (for barristers) and the Solicitors Regulation Authority (for solicitors), who can take disciplinary action. For details see the House of Commons Librarys briefing on complaints against solicitors and other lawyers.

Scottish Parliament Action

16. In session 4, the SLCC submitted a letter to the Scottish Parliament’s Justice Committee in which it argued that a review of the complaints procedure was needed. In response, the Justice Committee wrote to the Cabinet Secretary for Justice and received a response dated 31 October 2012 indicating that the SLCC and Law Society were, “developing a consensual approach to reach an agreement on the key improvements required.” Regulations amending the powers and duties of the SLCC were subsequently scrutinised by the Justice Committee, which recommended their approval by the Parliament (approval was granted on 13 August 2014).

17. The adequacy of the complaints system has also been raised in the current parliamentary session (see for example Motion S5M05079 lodged by Douglas Ross MSP on 6 April 2017).

The motion lodged by Douglas Ross, who is now an MP at Westminster read:

Motion S5M-05079: Douglas Ross, Highlands and Islands, Scottish Conservative and Unionist Party, Date Lodged: 06/04/2017

SLCC’s Proposed Levy Increase of 12.5%

That the Parliament recognises the concerns of solicitors and advocates following the announcement that the annual levy on legal practitioners to the Scottish Legal Complaints Commission (SLCC) is set to rise by 12.5%; understands that the SLCC has argued that recent increases in the number of complaints received against solicitors requires a commensurate increase in its budget; believes that some solicitors and advocates consider that these costs could be absorbed by the SLCC without a rise in the levy; understands that the Law Society of Scotland submitted a paper to the SLCC in response to the plans, but that its proposals were rejected and the increase was maintained; recognises the reported concerns among legal practitioners that the levy can be adjusted by any amount without a mechanism to effectively challenge it; acknowledges what it sees as the risk that the increase in the levy could be passed on to consumers, and calls on the SLCC to carefully consider the feedback that it has received from solicitors, advocates and the Law Society of Scotland.

Supported by: Dean Lockhart, Alexander Stewart, John Lamont, Alison Harris, Peter Chapman, Liz Smith, Gordon Lindhurst R, Edward Mountain, Donald Cameron R, Liam Kerr R, Miles Briggs, Murdo Fraser R, Adam Tomkins, John Scott, Margaret Mitchell, Rachael Hamilton R, Jackson Carlaw, Annie Wells, Jeremy Balfour, Ross Thomson, Brian Whittle, Jamie Greene, Alexander Burnett, Bill Bowman, Maurice Golden

Scottish Government Action

18. On 25 April 2017, the Scottish Government announced the launch of an independent review of the regulation of legal services in Scotland including the complaints system. According to the Scottish Government, the review

“…follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.”

19. The review is expected to report to Scottish Ministers by the end of 2018.

FLAWED LEGAL SERVICES REVIEW – How Scottish Government’s attempt at independent review of lawyers ended up back in the hands of … lawyers:

In April 2017, the Scottish Government announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

The move by Scottish Minsters, coming after discussions with the Law Society of Scotland – is intended to answer concerns  amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,

However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review should include judges and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.

However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;

* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;

* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;

* The chair of a law firm whose partners have regularly appeared before the SSDT;

* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;

* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”

The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services – which has left Scots consumers & clients at a clear disadvantage.

And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO).

Review should include judiciary:

Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.

Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.

REVIEW THE REVIEW: Third attempt at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•      Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•      Trisha McAuley OBE – independent consumer expert

The Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

 

 

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ROGUES GALLERY: Lawyer who spoke at Holyrood on behalf of Law Society – struck off for dishonesty, meanwhile concerns Police probe at bust law firm Ross Harper may hit Crown Office block on prosecuting colleagues in legal profession

Rogue lawyers & Police probes dog Scots legal industry. A LAWYER who gave evidence to MSPS on behalf of the Law Society of Scotland has been struck off – for serious dishonesty – after earlier findings of professional misconduct a year earlier.

Michael McSherry, who once gave evidence to the Scottish Parliament’s Justice & Home Affairs Committee on Vulnerable and Intimidated witnesses – was struck off by the Scottish Solicitors Discipline Tribunal (SSDT) after being found guilty of professional misconduct in relation to misrepresentation to two law firms on the purpose of funds being held, and failures to carry out proper money laundering checks.

The findings issued by the Discipline Tribunal also reveal a former solicitor, listed as ‘Ms B’ worked for McSherry.

The unnamed solicitor recently had her practising certificate removed by the Law Society of Scotland, yet she was easily able to find employment back in the legal services sector and began working with McSherry.

While the name of the solicitor is anonymised, the latest incident again reveals a trend where crooked lawyers who are turfed out of the profession land jobs as ‘consultants’ or ‘paralegals’ following them being stripped of their right to practice law.

McSherry was previously found guilty of professional misconduct in 2016 for failing to bank fees taken from clients, and his continuing to act on behalf of the client in his capacity as a solicitor when he was not the holder of a practising certificate, was not affiliated to any practising firm of solicitors and had no professional indemnity insurance cover. Law Society of Scotland v Michael Thomas McSherry (21 January 2016)

The latest Scottish Solicitors Discipline Tribunal findings on Michael McSherry, recently published – are here:
Law Society of Scotland v Michael Thomas McSherry (27 June 2017)

The full document listing the SSDT findings on Michael McSherry is here: SSDT Findings: Law Society of Scotland v Michael Thomas McSherry (27 June 2017)

Solicitor(s): Michael Thomas McSherry, Solicitor, 51 Morven Road, Bearsden, Glasgow

Tribunal Date: 27/06/2017 Appeal Status:No Appeal

Interlocutor: Edinburgh 27 June 2017.  The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland dated 11 April 2017 against Michael Thomas McSherry, Solicitor, 51 Morven Road, Bearsden, Glasgow; Find the Respondent guilty of professional misconduct singly in respect of his misrepresentation to Mr D about the purpose for which funds were held (issue 1), the improper, incomplete and inaccurate recording in the client ledgers (issue 2), and his misrepresentations to Slater, Hogg and Howieson and TLT Solicitors (issues 6 and 7); and in cumulo in respect of his failure to carry out proper money laundering checks on Company 1 and Mr C (issues 3 and 5), his failure to investigate the source of funds from Mr D (issue 4), his poor record-keeping and accounting practices (issue 8), his failure to reconcile bank statements (issue 9) and his failure to undertake training in connection with his role as cashroom manager (issue 10);  Order that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that this order shall take effect on the date on which the written findings are intimated to the Respondent; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent but need not identify any other person.

And, it has also been reported in the media that a Police Scotland probe has been launched into the now bankrupt law firm – Ross Harper.

However, as observers to the ‘twilight zone’ world of Police investigations into lawyers will be well aware, most probes carried out by Police almost never result in a prosecution before the courts, as has previously been the case in relation to multiple cases involving fourteen law firms & millions of pounds of legal aid fraud – which resulted in not one case going to court, reported earlier here: FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years

The Sunday Mail reports on the Police Scotland probe of bust law firm Ross Harper:

Cops launch cash probe into bust law firm Ross Harper and Co after partners struck off

The company had offices across Scotland before they were shut down in 2012 after operating for more than 50 years.

By Craig McDonald 06:00, 17 SEP 2017

A police investigation has been launched into the collapse of one of ­Scotland’s top law firms.

Ross Harper and Co, who had offices across Scotland, were shut down in 2012 after more than 50 years in practise.

It emerged that public cash claimed in Legal Aid fees was not paid to ­suppliers and experts hired by the Glasgow firm.

A lengthy probe by the Law Society of Scotland led to four partners being struck off and two more being censured.

We can reveal a dossier has now been passed to police, who have launched a criminal investigation.

The Mail understands the initial focus is on former ­senior partner Alan Miller, 38, who was struck from the roll of solicitors last month.

One expert witness hired by the firm welcomed the probe. Forensic psychologist Ian ­Stephen, who’s owed £5000 in fees, said: “I think it’s appropriate that police investigate.

“If anyone commits a crime, be it fraud or anything else, then you would expect police would make inquiries into it.

“If this happened in any other profession, the appropriate ­professional body would make inquiries and, if there was a criminal element to it, you would expect police to become involved.

“I don’t not see how the ­situation should be any different for solicitors.”

Stephen, a former senior medic at the State Hospital at Carstairs, said: “I felt badly let down by Ross Harper. You should be able to put your faith in a lawyer.

“I was always writing to them to ask why I was not being paid. I was shocked they were so ­blatant about it.”

Professor Hugh Pennington saw £4000 in fees go unpaid.

The bacteriolgoist said: “I was shocked to ­discover Ross Harper were ­withholding payments from me and others. There has been a betrayal of trust.”

Miller and Jim Price, also a senior partner, were struck off last month by the ­Scottish ­Solicitors ­Disciplinary Tribunal for professional misconduct.

Price was employed as general manager of Nottingham Forest in 2013 but left the football club within a year.

Two further partners, Paul McHolland and Joseph Mullen, were censured by the SSDT but are still able to practise.

The SSDT found Legal Aid cash lay in “a drawer”, the firm’s bank account, for up to two years.

The cash was used to help them ­balance their books after the 2008 financial crash.

Accounts also showed a cheque was cancelled and ­reissued three times before it reached its destination.

On at least two occasions, the same tactic was used to hold up payments of £300 to Pennington.

We told last month how legal watchdogs are facing more than £100,000 worth of claims from victims of the firm.

Any compensation would be paid from a Law Society client protection contingency fund.

Ross Harper had 12 offices in Scotland and were the country’s biggest earning Legal Aid firm, with 2006-07 earnings of £1.7million. They were founded in 1961 by ex-law professor Ross Harper.

A police spokeswoman said: “Inquiries are at an early stage.”

A Law Society of Scotland spokesman said: “Concerns were raised about the firm’s ­accounting record following one of our ­routine ­compliance inspections.

“This led to us going to the Court of Session to request the appointment of a judicial factor to the firm in April 2012 and, ­following investigation, we prosecuted all six former partners before the independent SSDT.

“We have a legal duty to report suspicious activity to the ­relevant authorities but cannot comment on whether reports have been made on specific cases.”

The SSDT decision on Ross Harper is here: Law Society of Scotland v-Alan Miller, Joseph Mullen, Paul McHolland & James Price

The full document detailing the SSDT’s findings in relation to the Ross Harper law firm partners can be found here: SSDT Findings: Law Society of Scotland v-Alan Miller, Joseph Mullen, Paul McHolland & James Price

Solicitor(s): Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonard’s, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock and James Price, formerly residing at 2 Rigside, Douglas Water, Lanark and now residing at Calle Java 19, 29591, Malaga, Spain

Tribunal Date: 08/05/2017 Appeal Status:No Appeal

Interlocutor: Perth 8 May 2017.  The Tribunal having considered the amended Complaint at the instance of the Council of the Law Society of Scotland against Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonard’s, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock and James Price, formerly residing at 2 Rigside, Douglas Water, Lanark and now residing at Calle Java 19, 29591, Malaga, Spain; Find the First Respondent guilty of Professional Misconduct in respect that (a) The First Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper and in particular during the period when he was the designated Cashroom Manager being 1 April 2010 to 5 April 2012, operated a system or policy whereby the business of the former firm was improperly funded by payments due to third parties, whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients. Said system or policy resulted in sums validly due to Third Parties not being timeously paid.

Further, the firm, under the authority and direct instruction of the First Respondent, took unauthorised and excessive fees despite there being insufficient funds at the credit of the client ledgers to meet those fees and without having had any legitimate basis for taking fees at the point in which they were deducted from the client ledgers.  Said funds and fees were taken and rendered in a dishonest, wrongful and improper use of client’s funds without the knowledge or consent of the clients to allow the said firm to continue to trade and operate within the limit of its banking facilities. All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, the Law Society of Scotland Practice Rules 2011: (b) The First Respondent submitted false and inaccurate Accounts Certificates to the Complainers thereby deliberately concealing from the Complainers the true financial position of the said firm; (c) The First Respondent acted dishonestly in reporting matters to the inspection team of the Financial Compliance Department of the Complainers, and that in breach of Rule B6.12 of the Law Society of Scotland Practice Rules 2011; (d) The First Respondent in his specific capacity as Designated Cashroom Manager between 1 April 2010 and 5 April 2012 failed to supervise the cashroom staff and cashroom systems to keep proper accounting records and that in breach of Rule B6.13 of the Law Society of Scotland Practice Rules 2011 and Rule 12 of the Solicitors (Scotland) Accounts etc. Rules 2001; (g)The First Respondent failed to settle invoices rendered by professional expert witnesses timeously, and that despite having received reimbursement of these sums from third parties;

Find the Second Respondent guilty of Professional Misconduct in respect that The Second Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper acquiesced in the operation of a system or policy whereby the business of the former firm was improperly funded by payments due to third parties whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients. Said system or policy resulted in sums validly due to Third Parties not being timeously paid. 

All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011;  Find the Third Respondent guilty of Professional Misconduct in that The Third Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper acquiesced in the operation of  a system or policy whereby the business of the former firm was improperly funded by payments due to third parties whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients.

Said system or policy resulted in sums validly due to Third Parties not being timeously paid.  All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, and the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011; Find the Fourth Respondent guilty of Professional Misconduct in that (a) The Fourth Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper operated a system or policy whereby the business of the former firm was improperly funded by payments due to third parties, whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients.

Said system or policy resulted in sums validly due to Third Parties not being timeously paid.  Further, the firm, under the authority and direct instruction of the Fourth Respondent as Joint Managing Partner, took unauthorised and excessive fees despite there being insufficient funds at the credit of the client ledgers to meet those fees and without having had any legitimate basis for taking fees at the point in which they were deducted from the client ledgers. 

The fees in these instances were deducted for the purposes of assisting the firm’s cashflow and financial position and to conceal the true level of the firm’s liabilities and overdraft. Said funds and fees were taken and rendered in a dishonest, wrongful and improper use of client’s funds without the knowledge or consent of the clients to allow the said firm to continue to trade and operate within the limit of its banking facilities. 

All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, and the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011; (b) The Fourth Respondent countersigned and submitted false and inaccurate Accounts Certificates to the Complainers thereby deliberately concealing from the Complainers the true financial position of the said firm; (c) The Fourth Respondent acted dishonestly in reporting matters to the inspection team of the Financial Compliance Department of the Complainers, and that in breach of Rule B6.12 of the Law Society of Scotland Practice Rules 2011; 

Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the order shall take effect on the date on which the written findings are intimated to the First Respondent; Censure the Second Respondent; Censure the Third Respondent; Order that the name of the Fourth Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the order shall take effect on the date on which the written findings are intimated to the Fourth Respondent; Find the Respondents jointly and severally liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00 restricted in the case of the Second Respondent to 20% and in the case of the Third Respondent to 10%; and Direct that named publicity be given to this decision, declaring that such publicity shall not contain the name of the clients or otherwise identify them as the publication of their personal data is likely to damage individuals’ interests.

Alistair Cockburn Vice Chairman

Second Interlocutor:

The Tribunal having made findings of professional misconduct in respect of matters complained of by Thomas Aulds, ARM Architects LLP, 2a Berkeley Street, Glasgow; Dr Peter Thornton, 49 Carlogie Road, Carnoustie; Ian Stephen, 19 Glen View Crescent Gorebridge; The PRG Partnership, 111 Cowgate, Kirkintilloch, Glasgow; Ewa Daly, Pierwsza Pomoc Polscotia, St George’s Building, 5 St Vincent Place, Glasgow and David Bartolo, 2/52 Rallinson Road, North Coogee, Western Australia, appoints them if so advised to lodge statements of claim with the Clerk to the Tribunal at Unit 3.5, The Granary Business Centre, Coal Road, Cupar, Fife, within 21 days of the date of intimation hereof.

Alistair Cockburn,  Vice Chairman.

Compensation Interlocutor:

Glasgow,   21 August 2016.  The Tribunal having made a finding of professional misconduct against Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonards, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock, and James Price formerly residing at 2 Rigside, Douglas Water, Lanark, and now residing at Calle Java 19, 29591, Malaga, Spain; Having allowed 21 days for the Secondary Complainers, Thomas Aulds, ARM Architects LLP, 2a Berkeley Street, Glasgow; Dr Peter Thornton, 49 Carlogie Road, Carnoustie; Ian Stephen, 19 Glen View Crescent Gorebridge; The PRG Partnership, 111 Cowgate, Kirkintilloch, Glasgow; Ewa Daly, Pierwsza Pomoc Polscotia, St George’s Building, 5 St Vincent Place, Glasgow; and David Bartolo, 2/52 Rallinson Road, North Coogee, Western Australia to lodge their claims for compensation;  Having received confirmation from Dr Peter Thornton that he does not wish to submit a claim for compensation and having received no correspondence from said Thomas Aulds, Ian Stephen, The PRG Partnership, Ewa Daly and David Bartolo within said 21 days; makes no further order and no further finding of expenses.

Alistair Cockburn, Vice Chairman

Previous reports on the Scottish Solicitors Discipline Tribunal can be found here: Cases of repeat offender rogue lawyers rise at Scottish Solicitors Discipline Tribunal

 

 

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LEGAL COSTS: Ask your solicitor ten questions about costs before your legal expenses run up thousands in unnecessary work & bills – or result in your lawyer taking your home & savings to pay for it

Questions to ask your solicitor – walk if you don’t like the replies. IN SCOTLAND, there are few, if any non lawyer controlled sources of advice to legal services consumers on how to manage client relationships with solicitors, how to control legal costs, and what to do when something goes wrong and your lawyer rips you off.

Client protection – is a myth. Given three decades of evidence that thousands of clients have been ripped off every year by their once trusted solicitors, the only people who believe a complaints system run by lawyers, managed by lawyers and protected by lawyers –  are fantasists, and the Law Society of Scotland.

There are no background record checks available on Scottish solicitors, and the only ‘help’ on offer to clients when their relationship with their solicitor breaks down – is provided by the pro-lawyer Scottish Legal Complaints Commission (SLCC), a regulator backed by the Law Society of Scotland, staffed by members of the Law Society of Scotland. You get the picture.

However, in England & Wales, the landscape is a little more consumer friendly, with the Legal Ombudsman (LeO) and Solicitors Regulation Authority (SRA) providing a more independent form of advice and help to consumers.

The Solicitors Regulation Authority also publish complaints and regulatory data on solicitors and law firms – a must have service for anyone considering using a solicitor which does not currently exist in Scotland.

As things currently stand in Scotland – if you are unable to check up on your solicitor’s regulatory history via an independent source, the best advice is to walk away – or what happens next is your own fault.

Self regulation by lawyers, pleas to the Scottish Government and Scottish Parliament for help will not put right your legal problems or what your solicitor did to you.

A handy guide published by the Legal Ombudsman, reprinted by DOI in this article, gives a list of ten questions consumers and clients of solicitors should ask their legal representatives before taking on representation and expensive legal services.

There are further tips in the full LeO leaflet, so please download it and read thoroughly before engaging legal representation.

This guide was written for the English legal services market, and you may be an English reader, so go right ahead and ask you solicitor these ten basic questions on costs.

However, the same questions apply as much in Scotland as anywhere else –  and anyone using a Scottish solicitor should consider asking these same questions.

If you don’t like the answers you receive, or don’t get any answers at all – then the best consumer advice possible is to protect yourself and walk away.

At the very least, you will have saved yourself hundreds, or thousands or tens of thousands of pounds for something involving a lawyer which may well have ended up going wrong anyway.

Why put yourselves through a five year heartache losing your savings to a lawyer, when ten little questions and answers may save you a whole lot of trouble.

The introduction to the leaflet from the Legal Ombudsman states: “If you use a lawyer, he or she should talk to you about the cost of their services. But you should also understand their charges. We have come up with ten questions to ask your lawyer about the cost of your service. We’ve also included some top tips and explained the terms used to help you get the most from conversations with lawyers about costs.

As a consumer, you have the right to expect your lawyer to be clear about how much they are likely to charge you, and for the final bill to be clearly explained and in the range you expected.

Legal services can be complex and the final cost can depend on things such as the type of service, individual details of the case, and how events develop. The expertise and experience of the lawyer may affect things too. However, most services are straightforward and your lawyer should give you a clear idea of what you will be charged from the start. Even if things do get complicated, your lawyer should warn you when this happens, so there shouldn’t be any surprises in your final bill.

A lawyer who values good service will happily answer your cost-related questions. Lawyers also have a duty to provide you with a client care letter when you appoint them. This letter should clearly explain the costs for the service and any terms and conditions that may affect the final price.”

Question 1  Will I be charged for a consultation?

Finding the lawyer who is right for you and the service you need is important. A consultation by phone, face-to-face, letter or online can help you make your decision. A lawyer can charge you for a consultation but they should tell you before you book and explain any conditions. For example, they may offer the first 30 minutes free but charge for time above that.

A lawyer should speak to you about costs and provide the best possible information so you can make an informed choice.

If you have a consultation, make the most of the opportunity. Do your research to find the right lawyer – you can check online, talk to friends and family, or speak to consumer organisations to help you make your choice.

Question 2  “How do you cost your service?”

This question can help you shop around to get best value for money. Two lawyers may provide very different estimates for the same service. Understanding why the quotes differ can help you make the right decision. For example, one lawyer may be more experienced or an expert in the area of law your case involves. If you have a complex case, you might think it’s better to pay more as it may improve the outcome and cost you less in the long run. With a fairly simple case you might decide you don’t need that level of expertise, so it may be better value to go with the cheaper estimate.

Experience and skill are just two reasons why costs may differ. There are now more ways than ever to provide a legal service which can have an impact on what you pay. For example, you can now buy services that are phone or web based rather than face-to-face. Providers who offer this type of service may save on rent and backroom costs and might therefore offer a cheaper price to customers. Understanding if this type of service works for you will help you decide if it is, or isn’t, value for money.

Estimates may vary for a whole host of reasons. Ask questions until you understand enough about the services on offer so you can pick one that suits you.

Question 3 “Can you tell me more about the way you charge?”

Lawyers have different ways of charging and their charging method may also vary according to the service. For example, they may offer a fixed fee for writing a will, but an hourly rate for a probate service (the administration of a will when someone has died). Find out what charging method the lawyer will use and ask them to explain it to you in detail. Questions 4 and 5 help with understanding fixed fee and hourly rate charges.

Conditional fee arrangements (CFAs) are also known as ‘no win, no fee’ arrangements. If you lose, you won’t, in general, have to pay your lawyer’s fees, but may need to pay some out of pocket expenses such as barrister’s fees or court fees. You may also be liable to pay some of the other side’s costs but it is possible to get insurance to protect against this. If you win, you will have to pay your lawyer’s fees and in addition there is usually a success fee which is intended to cover the risk that the firm are entering into with this type of agreement. You should in most cases, however, be able to recover your fees (including any success fee) from the other side. If you are thinking about entering into one of these arrangements, make sure you ask detailed questions so that you fully understand the terms and conditions.

Contingency fee agreements are also a type of ‘no win no fee’ agreement. If your lawyer agrees to represent you under a contingency fee agreement — which should not be confused with a conditional fee arrangement – they will be able to claim a percentage of any money they win on your behalf plus expenses. If you lose the case, you won’t be charged a fee, but you might still have to pay other costs (which could include the other side’s legal costs too).

The contingency fee percentage must be agreed in advance. You should also check whether the lawyer will deduct any expenses before they take their contingency fee or after as this can make a significant difference to the amount you finally receive. If the percentage you are asked to pay is very high, you could end up with very little – even if you win.

Question 4 “What is a fixed fee and what does it cover?  Will I be charged for any other costs?

The term ‘fixed fee’ can be used in different ways. It can be easy to assume that it covers all costs for the service you need. In some cases that may be true, but it may also just refer to the lawyer’s fees. For example, a ‘fixed fee’ in a property case may, or may not, include charges related to searches. Sometimes a lawyer may offer a ‘fixed fee’ for a stage of the case, so don’t feel embarrassed about asking your lawyer exactly what they mean by ‘fixed fee’. It’s not a silly question; the term isn’t self-explanatory.

Lawyers will sometimes give you an estimate of the costs. This isn’t the same as a ‘fixed fee’, so check what your lawyer means. This can be important as sometimes a lawyer may charge a fixed fee for a particular stage but give an estimate for the next stage. If that happens, or you aren’t sure, check what your lawyer means and ask for an estimate for the total cost of the case.

Question 5  “You charge an hourly rate but I’d like an estimate for the cost of the whole service. What will my final bill look like?”

If your lawyer charges an hourly rate, they must give you an estimate of how much the overall service will be. This should compare reasonably with your final bill. If you aren’t sure, then ask your lawyer to give you an estimate for the whole service. Sometimes it can be hard to predict how much it will all cost. Ask so you know how certain the estimate is. Having a range of costs might be more helpful than a single number, which could shift up or down. The important thing is to understand how much the total bill could be.

You are entitled to ask the lawyer to set a limit on the costs. This means your lawyer has to check that you are happy to continue if the spend approaches the agreed threshold. Setting a limit can help you make sure you don’t spend more than you can afford.

Ask questions to understand exactly when the clock starts. For example, if you call your lawyer for an update on your case will you be charged for the call? Ask if, and how, your lawyer rounds up their charges. Many lawyers charge in six minute blocks – check if that’s how your lawyer works. Make sure you feel comfortable with the way they charge.

As with ‘fixed fees’, ask if there are any other costs that won’t be covered in the hourly rate.

Question 6 “Could my costs change? How will you let me know if they do?”

There may be circumstances where costs do change. This is most likely if new information or developments make a case more difficult. For example, in a divorce case much is dependent on the other person’s cooperation to resolve it quickly. Even if both people intend to behave amicably, sometimes that resolve breaks down. If your costs look like they are changing, ask your lawyer about it. In general, your lawyer should tell you as soon as they are aware of any changes, but you don’t have to wait to ask for an explanation. Another option is to ask, when you choose your lawyer, if their original estimate is likely to be breached. If you have agreed a spending limit (see question 5), then your lawyer should stop work until you confirm that you want to continue.

If a case gets complicated even a ‘fixed fee’ arrangement can change. Your lawyer should explain when this might happen and also set out the terms and conditions in your client care letter. Make sure you understand and ask if there is a ‘get out’ clause to say if additional costs can be charged.

Remember, you always have options, even in the middle of a legal transaction. If there is a big hike in the costs of using a lawyer, then your lawyer should tell you about them and let you know what your options are. You could use a different specialist who might cost less but take longer, or only use email to contact your lawyer. There might also be some stages in the process that can be missed out. Ask your lawyer how you can work with them to reduce costs.

Question 7 Are there any extra costs?

This really is a catch-all question to help you budget for your service. You are basically asking your lawyer if they have given you all the information they reasonably can to make sure there aren’t any nasty surprises in the future. Examples of the sort of information this question might raise are additional costs for things like expert reports (such as from a doctor), or photocopying. Some firms use premium rate phone numbers, which could add unexpected costs to the final amount you spend for your service. Use these examples as a prompt to discuss this issue. Your lawyer should also tell you if you are likely to incur any bank charges. For example, you might need to make a CHAPs payment (same day electronic transfer) which can cost over £20 in a property transaction.

Finally, don’t forget to check if your estimate is inclusive of VAT. Your lawyer should tell you, but check so that you don’t get a higher bill than you’re expecting.

Question 8 “Can I get help with the cost of my legal service?”

A lawyer should always talk to you about how the service will be paid for and discuss options such as insurance or membership of a union that might help cover the costs. There can be some fine-print with different insurance options that you need to understand, so ask lots of questions to make sure you know what you are signing up to. Some insurances, like ‘after the event’ or ‘before the event’ insurance, could cover you for some things but not for others. Ask your lawyer for more information.

If you receive benefits or are on a low income you might qualify for help that may reduce or cover all of your costs. There are different programmes for different types of help but the best known is legal aid, which provides free legal advice from lawyers who are registered with the service. Even if your lawyer isn’t registered to provide legal aid they should tell you about it so you have the option of going to a lawyer who can.

Question 9 “When will I be billed and how long will I have to pay? Do you offer payment options?”

A lawyer should give you clear information on their billing process and offer reasonable time for you to make payments. They should also let you know if there are penalty charges if you don’t pay on time. You may be asked to pay some money at the start either to cover certain expenses or as an advance payment of fees. Lawyers aren’t obliged to offer you payment options, but some may be willing to negotiate. Asking the question might help you find a lawyer whose service fits your personal circumstances.

Question 10 “What happens if I disagree with the amount I’ve been charged?”

Your lawyer should tell you their approach to resolving billing disagreements. Every lawyer should have a complaints handling system in place, so find out how their system works. You should not be charged by a lawyer for looking at your complaint – it is very poor service if they do. When you appoint a lawyer they are also obliged to let you know about the Legal Ombudsman who can help you to resolve your complaint if you and your lawyer can’t reach an agreement.

Note – if you disagree with legal bills in Scotland, cases have revealed solicitors often employ threats and legal action for demands to be met within seven days. In some cases solicitors have applied to sequestrate their clients for disagreements on legal bills, and willing, compliant local sheriff courts staffed by familiar clerks and members of the judiciary often grant such orders with little regard for the facts or any representations from clients who question the integrity of legal fees.

SCOTLAND – Consumer protection against rogue solicitors and law firms does not exist.

How bad is the Law Society of Scotland when it comes to protecting consumers? The answer is  very bad. The Law Society of Scotland is a lobby group for the legal profession which puts lawyers interests first, before clients, the public, or anyone else. Do not expect client protection from a system where lawyers regulate themselves.

Read previous articles on the Law Society of Scotland here: Law Society of Scotland – A history of control of the legal profession, and no client protection.

Previous reports on the Scottish Solicitors Discipline Tribunal – The pro-lawyer tribunal which determines ‘punishments’ for solicitors after complaints have endured an eternity at the Law Society & SLCC, can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

Previous media investigations, reports and coverage of issues relating to the pro-lawyer Scottish Legal Complaints Commission (SLCC) can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

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DISHONESTY RULES: Rogue solicitors guilty of fraud, embezzlement and theft from wills receive soft censures from pro-lawyer Scottish Solicitors Discipline Tribunal and courts

Consumers are not protected by lawyers regulating lawyers. SCOTLAND’S legal profession and anyone connected to it – including the judiciary –  often praise the system of self regulation where lawyers look after their own – to the point of taking over and closing any public debate on creating independent regulation of solicitors.

And, of course lawyers will continue to regulate themselves in Scotland – because self regulation is too protected by vested legal interests, because it allows a solicitor to rip off their client, to be judged by his colleagues and to walk away from it, no matter what was done to the client.

Time and again, lawyers look after their own, investigate themselves, appear in front of their friends at the Scottish Legal Complaints Commission (SLCC), and, at most, receive a censure, or slap on the wrist from the Scottish Solicitors Discipline Tribunal (SSDT).

Diary of Injustice recently reported on how the SLCC refuses to identify corrupt lawyers within determination decisions which are only published after being approved by the Law Society of Scotland, featured here: FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings.

The SLCC print lists of doctored histories of complaints against lawyers, and then refuse to identify the solicitors who ripped off their clients – how corrupt is that!

Compare this to England & Wales, where decisions made by the Solicitors Regulation Authority in relation to identified law firms and names of solicitors can easily be found here Recent Decisions – Solicitors Regulation Authority.

Striking’s off rarely occur, only as a last resort for the members of Scotland’s legal profession must protect their own.

The slick SSDT website invites you, the public – to have confidence in the ways lawyers look after their own.

Yet in decision after decision, the extent of dishonesty during proceedings renders much of what is published in Tribunal ‘interlocutors’ as clever forgeries of the acts of wilful, determined and well practiced thieves – far more determined than will ever be told in public.

The noticeable lack of action by the SSDT to report solicitors to the Police & Crown Office for prosecution, does, as the years go by, verify the position that the SSDT seeks to protect solicitors from the full weight of criminal law – which applies to everyone else.

However, on that rare occasion where solicitors do appear in court, you just know they are not going to jail.

In a prime example of the above, earlier this week Scotland was meant to weep like a child after the Law Society sought to publicise the fact Paul O’Donnell – a solicitor from the law firm of Thorley Stephenson, in South Bridge – had sold his house to repay more than £21,000 he pled guilty to embezzling from the Edinburgh law firm Thorley Stephenson, in South Bridge .

O’Donnell, 35, had previously been warned he was facing jail for the embezzlement but the judge – Sheriff Frank Crowe – allowed him to remain free as he had repaid the £21,485 he had obtained dishonestly.

In court –  O’Donnell’s defence lawyer –  Murray Robertson told Sheriff Crowe that his client had sold his house, moved in with relatives, and the money had been repaid to Thorley Stephenson.

Sheriff Crowe was also told O’Donnell had been sequestrated, was declared bankrupt and is no longer practising as a solicitor.

In response, Sheriff Crowe told O’Donnell that cases of this nature usually involved a sentence of imprisonment but, as  O’Donnell had co-operated and admitted his guilt, arranged the sale of his house and returned the money to Thorley Stephenson, Sheriff Crowe avoided sending O’Donnell to jail and instead confined him to his current address from 9pm to 6am for six months.

You may be forgiven for thinking how amazing a lawyer who stole, avoided jail.

However, in the rare occurrences when solicitors do come before our courts, jail is always a last resort for the judge – who are themselves, lawyers.

So, with facts in hand that our courts take a shine to lawyers with tears in their eyes, it should be of little surprise the latest rulings by the Scottish Solicitors Discipline Tribunal offer mere censures and fines for executry and will fraud, theft and embezzlement – which are crimes to ordinary people in the real world.

Law Society-v-Euan Maxwell Terras

This case involved a solicitor in his writing and executing a Will in which his family were the Primary Beneficiaries. An amazing story, yet only punishment is a fine.

Read the ‘published’ details of the hearing here Council of the Law Society of Scotland v Euan Maxwell Terras

Edinburgh 29 August 2016.  The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland against Euan Maxwell Terras, Sprang Terras, 64 Kyle Street, Ayr; Find the Respondent guilty of professional misconduct in respect of his acting in the purchase of a property with the ancillary execution of a Minute of Agreement and the drafting of a Will where his son was the residuary beneficiary and found that in doing so (1) he acted in an actual conflict of interest situation in the purchase of the property and the execution of the Minute of Agreement where he had a personal and/or financial interest in both; (2) he did not insist that Miss MM consult other solicitors either in the purchase of the property or the execution of the Minute of Agreement when both were actual conflicts of interests; (3) he could not discharge his professional obligations to solely look after the interests of Miss MM both in the purchase of the property and the execution of the Minute of Agreement given the actual conflict of interest in both between him and Miss MM; (4) he called into question his personal integrity/independence in taking instructions and/or drafting the second Will which benefitted members of his family and in terms of which they would derive significant benefit; and (5) his advice, given the terms of the draft second Will, was not free from external influence and placed him in a conflict of interest; Censure the Respondent; Fine the Respondent the sum of £8,000 to be forfeit to Her Majesty; Find the Respondent liable in the expenses of the Complainers and of the Tribunal.

Law Society-v-Philip Simon Hogg

Philip Hogg was one of a two-partner Kirkintilloch firm – Alder Hogg. His co-partner was his twin sister Alison Hazel Margaret Greer. The case relates to massive overcharging of clients. – usually defined as fraud if not involving a solicitor.

The following is for one client: The Interlocutor final amount is that for £129K of legal work they charged £219K for £90K more than they should have. So, for this one client, in relation to Mr A’s executry, it is accepted that £90K was overcharged, however the Tribunal does not explain why a staggering £129K of executry fees was deemed acceptable.

Read the full ‘published’ version of events in this shocking case here: Council of the Law Society of Scotland v Philip Simon Hogg

Edinburgh 25 August 2016.  The Tribunal having considered the Complaint dated 22 April 2016 as substituted by the Complaint dated 25 August 2016 at the instance of the Council of the Law Society of Scotland against Philip Simon Hogg, residing at 9 Crossdykes, Kirkintilloch, as amended; Find the Respondent guilty of professional misconduct in respect of his failure in his obligation to see that the firm in which he was a partner complied with the accounts rules, his failure in his duty to supervise the firm’s office manager and cashier, his failure in his duty to take steps to satisfy himself that fees being charged to executries were properly so charged, his failure to see that at all times the sums at credit of the client account exceeded the sums due to the clients and his continuing to draw from the firm while it was being financed by the overcharges to clients; Suspend the Respondent from practice for a period of five years and Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the suspension shall take effect on the date on which these findings are intimated to the Respondent;

Law Society-v-Jane Elizabeth Steer

Elizabeth Steer worked for a Falkirk firm RMS Law. She previously worked for Russell & Aitken and now works for Allan McDougall & Co.

Ms Steer was accused of falsifying an Affidavit.

Affidavits MUST adhere to the following: 1. both parties must be physically present at the signing i.e. the solicitor (notary public) and their client 2.it must be signed at the locus specified in the Affidavit

The affidavit complied with neither of these tests, instead Ms Steer sent it to her client in England to sign and return.

Problems with the affidavit only came to light when the client gave evidence stating that she had not been in Scotland for a while – but when at Avizandum the Sheriff realised that the Affidavit was signed in Scotland at a time when the client swore she was in England.

To make matter worse, Miss Steer also tried to mislead the Law Society during the Investigation. Read the full published Interlocutor here: Council of the Law Society of Scotland v Jane Elizabeth Steer

Edinburgh 16 August 2016.  The Tribunal having considered the Complaint dated 31 May 2016 at the instance of the Council of the Law Society of Scotland against Jane Elizabeth Steer, Messrs Allan McDougall, 3 Coates Crescent, Edinburgh as amended; Find the Respondent guilty of professional misconduct in respect of her failure to act with trust and personal integrity in connection with the preparation of an affidavit which she purported to notarise on 29 October 2012, submission to the court for lodging an affidavit which contained false or misleading information on 5 November 2012 and subsequent failure on 29 June 2014 to provide a full and candid explanation to the Law Society in connection with the preparation of the affidavit and its sending to the Secondary Complainer; Censure the Respondent;

And remember, readers – wherever there is dishonesty, there is a Scottish solicitor, and the Scottish Solicitors Discipline Tribunal.

THE DISHONESTY FACTOR:

An investigation by BBC Panorama –  Lawyers Behaving Badly – featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s – who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn’t complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn’t stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

Previous reports on the Scottish Solicitors Discipline Tribunal can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

 

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