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TOXIC LAW: MacAskill gives lawyers ‘right to complain about complaints’, backs law change allowing anti-client Scottish Legal Complaints Commission to ditch investigations on rogue lawyers

Law change makes it easier for lawyers to look after their own. RECENT Scottish Government backed changes to rules governing how solicitors, advocates and the remainder of the legal profession investigate themselves now make it easier for the ‘independent’ Scottish Legal Complaints Commission (SLCC) to dismiss complaints against rogue lawyers at an earlier stage than is currently allowed, or, if the situation permits, reinstate a complaint after it has already been dismissed.

Now known as Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 the changes also give solicitors involved in conduct complaints a new right to complain about the manner in which the complaint was dealt with by the relevant professional organisation.

The controversial change –  allowing lawyers to complain about complaints, may inevitably lead to dodgy lawyers using this procedure as a tactic to avoid the already meagre disciplinary measures handed down by the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal (SSDT).

Earlier this year, the SSDT was shamed earlier this year in Lawyers Behaving Badly – a BBC Scotland investigation which revealed how “dishonest” lawyers escape being struck off in Scotland while in England & Wales, such conduct would result in a striking off.

Another change to the rules governing the Scottish Legal Complaints Commission effectively creates a quango within a quango – requiring the SLCC to set up an ‘independent’ panel to advise it on consumer and equality issues.

While the ‘independent’ advisory panel is more likely to be comprised of lawyers vested interests like the SLCC itself, MSPs were told it is is also to include representatives from consumer and equalities organisations. The panel’s remit will be to make recommendations to the Commission for improvements in practice and procedures; to make suggestions of topics for research connected to consumers; and to express views on other matters as requested.

Attending with the Justice Secretary, Roderick Campbell, a member of the Faculty of Advocates said of the advisory panel: “Putting into statute the independent advisory panel is a way forward and I am pleased that it will include representatives of consumer and equalities organisations. That ought to improve substantially how the commission functions, if it takes on board the panel’s comments.”

The overly pro-lawyer moves, are a result of discussions between a group consisting of the Law Society of Scotland, the Scottish Legal Complaints Commission, the Faculty of Advocates, the Association of Commercial Attorneys, the Legal Defence Union, the Scottish Solicitors Discipline Tribunal, Citizens Advice Scotland, Which? and the centre for professional legal studies at the University of Strathclyde law school were backed by Justice Secretary Kenny MacAskill, who attended the Justice Committee on 5 August 2014 to give evidence on the proposed changes.

Rules change will benefit consumers little. The Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014, were laid under section 41 of the Legal Profession and Legal Aid (Scotland) Act 2007, passed by the Scottish Parliament eight years ago in what has now become a flawed attempt to clean up the law on how lawyers deal with complaints against their colleagues.

The instrument will make amendments to the Legal Profession and Legal Aid (Scotland) Act 2007 to adjust the duties and powers of the Scottish Legal Complaints Commission (SLCC) and to impose new duties and new powers on it. These include–

  • giving the SLCC the ability to revisit the eligibility of the complaint during the investigation phase;
  • providing for a more flexible order of consideration of aspects of complaints;
  • giving the SLCC the ability to discontinue the investigation of a complaint and, should it wish, reinstate a complaint where it has discontinued an investigation;
  • providing practitioners about whom a conduct complaint has been made with the power to complain to the SLCC if they feel that the conduct complaint has been poorly handled by the relevant professional organisation;
  • providing new powers for dealing with recommendations in reports on handling complaints;
  • providing for handling complaints to be reinstated;
  • placing an obligation on the SLCC to set up and consult an independent panel.

During the short debate, in which the amendments to legislation was passed by the Justice Committee and is a statutory instrument, Mr MacAskill claimed he had not heard any suggestion the heavily pro-lawyer, anti-client Scottish Legal Complaints Commission was “not  working  reasonably  well  and smoothly.”

Justice Committee Scottish Parliament 5th August 2014 SLCC Rules change

The short debate at the Scottish Parliament on the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 :

The Convener: If I have members’ attention, I will move on to agenda item 2, which is consideration of an affirmative instrument. The draft regulations amend and add to the duties and powers of the Scottish Legal Complaints Commission with the aim of improving the complaints process.

The cabinet secretary has, of course, stayed with us, and I welcome from the Scottish Government Denise Swanson, head of the access to justice unit, and Alastair Smith, from the legal services directorate. The cabinet secretary will give evidence in advance of the debate on the regulations. I understand that he wishes to make a brief opening statement.

Kenny MacAskill: Thank you, convener. I am happy to be here to assist the committee in its consideration of the draft Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014.

The Law Society of Scotland and the Scottish Legal Complaints Commission previously contacted the Minister for Community Safety and Legal Affairs and the Justice Committee to raise concerns about certain tactical aspects of the Legal Profession and Legal Aid (Scotland) Act 2007. The society and the commission agreed to form a working group with other stakeholders, the aim of which was to suggest changes to the legislation to improve the complaints process, which would benefit both the public and the profession. The group consisted of the Law Society, the Scottish Legal Complaints Commission, the Faculty of Advocates, the Association of Commercial Attorneys, the Legal Defence Union, the Scottish Solicitors Discipline Tribunal, Citizens Advice Scotland, Which? and the centre for professional legal studies at the University of Strathclyde law school.

The amending regulations are a direct result of the working group’s findings. They will significantly assist in making the legislation a more effective framework for dealing with legal complaints in Scotland, which is in keeping with the Scottish Government’s national outcome:

“Our public services are high quality, continually improving, efficient and responsive to local people’s needs.”

The regulations will rearrange the order in which the SLCC considers the various aspects of a complaint, to improve efficiency and better reflect current practice. They will give the SLCC the power to discontinue and reinstate service complaints and will give legal practitioners the right to complain about the handling of a complaint by a professional body. They will also require the SLCC to set up an independent panel to advise it on consumer and equality issues.

I hope that that is useful to the committee. I am happy to take questions.

The Convener: It all seems like common sense to me.

Margaret Mitchell: I thank the cabinet secretary for that opening statement. To what extent does the Scottish Government monitor the operation of the commission?

Denise Swanson (Scottish Government): The SLCC lays an annual report before Parliament. It is a non-departmental public body for which my unit has sponsorship responsibility. We work closely with the SLCC, including on its consultation on budget proposals. It is an unusual non-departmental public body in that it is funded not by the Scottish Government but by a levy on the profession. There is a certain amount of accountability to the profession regarding the way that the commission operates. We work very closely with it on improvements to and efficiency in its operations.

Margaret Mitchell: I am aware that ministers appoint members of the board. Given that the changes, which are all very sensible and should improve the complaints system, have come from stakeholders, and given that the commission came into being in 2008, is it not time for some post- legislative scrutiny of how the commission is operating and a more in-depth look at its performance and how it could be improved?

Kenny MacAskill: I am happy to consider any suggestions that Ms Mitchell or, indeed, the committee may have, but it seems that we have the appropriate balance. As Denise Swanson said, the commission is a non-departmental public body. We appoint the commission and there is a level of scrutiny there, but we have to have trust and faith in those who are appointed, and we do. Equally, it is quite clear that the levy, which is unusual, if not necessarily unique, ensures that there is a great deal of scrutiny by bodies that represent individual members of the profession.

I am happy to take on board any suggestions, but it seems that the commission, together with those stakeholders, has been working reasonably well. It has recognised that there have been challenges and difficulties, and it has got itself together and worked out what changes are needed. We are here as an Administration to support it, although we are open to suggestions.

Margaret Mitchell: I understand that the SLCC is funded by a levy on stakeholders—people who may be the subject of complaints—so I suppose that I am suggesting that we should ensure that there is more independent scrutiny.

Kenny MacAskill: Again, I say that I am open to suggestions about the level of scrutiny that you want. I have had no suggestion that the organisation is not working reasonably well and smoothly. Clearly, the Government has oversight and responsibility regarding the commission, as it does with any NDPB. It seems that some tweaks have been made and some challenges have been met. We are discussing and engaging with stakeholders.

My deputy and I meet the Faculty of Advocates and the Law Society regularly. Unless matters such as malfeasance were suggested, I do not see why the Government would wish to intervene in a body that appears to be liaising well and operating reasonably smoothly. However, we are always open to suggestions.

Margaret Mitchell: The measures in the regulations are good but, given their number, it would be good to have wider debate and parliamentary scrutiny. We in the Scottish Parliament are notoriously bad at doing post- legislative scrutiny.

Kenny MacAskill: That is a matter for the committee or perhaps for Opposition parties in considering Opposition days. One reason why many aspects have been referred to is that the field is complicated. I welcome the fact that the measures have been discussed and taken on board not only by those who would normally expect to be represented, such as the Law Society and the Faculty of Advocates, but by bodies that interact with the public, such as Citizens Advice Scotland and Which? The issue that you raise is for Parliament rather than the Government.

The Convener: I do not want to give evidence, but am I right in saying that an arm of the Law Society used to deal with complaints? That was not satisfactory. We have now moved to the Scottish Legal Complaints Commission. Does the cabinet secretary agree that the independent advisory panel will be important, as it will look at how the commission operates?

Kenny MacAskill: The basis for establishing the SLCC was public concern, which was transmitted across political parties, as the convener said. Such aspects could not and should not be dealt with by professional bodies regulating themselves.

Denise Swanson: It might help to note that, in the past two to three years, the SLCC has reported an improvement in the efficiency of its complaints handling. There was a bit of a backlog, which has been resolved. In the budget proposals that were recently consulted on, the SLCC reduced the levy. It is reporting on improvements in processes and in the time that it takes to process complaints.

Margaret Mitchell: Are you confident that the enforcement of recommendations is working well?

Denise Swanson: Yes. The number of cases that are taken to court for enforcement is reducing.

Roderick Campbell: I refer to my registered interest as a member of the Faculty of Advocates. Putting into statute the independent advisory panel is a way forward and I am pleased that it will include representatives of consumer and equalities organisations. That ought to improve substantially how the commission functions, if it takes on board the panel’s comments.

The Convener: I welcome the flexibility that is being built in, but I am surprised that it has taken a wee while to get that. It seems like common sense to have the ability to revisit eligibility questions and rearrange the order of consideration and to have the power to discontinue and reinstate service complaints. They all seem like measures to manage cases that should have been available from the start, so I very much welcome them.

Consultation packs were sent to a range of people. Were they all happy? Were the consultees—particularly the consumer organisations Citizens Advice Scotland, Which? and the Office of Fair Trading—content with the amendments to existing practices?

Denise Swanson: Yes. Those organisations were part of the group that worked on the proposals. The group’s remit was to agree which improvements could be delivered through practice change, which would require primary legislation and which would require subordinate legislation. The group agreed on the position.

The one outstanding issue concerns appeals going to the Court of Session. That element requires primary legislative change, so the group accepted that it must remain as it is at the moment.

The Convener: Do the rest of the proposed amendments have agreement across the spectrum?

Denise Swanson: Yes.

The Convener: That is fine.

Members have no more questions, so we will move on to item 3, which is the formal debate on the motion on the regulations. I invite the cabinet secretary to move motion S4M-10634. Motion moved,

That the Justice Committee recommends that the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft] be approved.—[Kenny MacAskill.]

Motion agreed to.

The Convener: As members are aware, we are required to report on all affirmative instruments. Are members content to delegate authority to me to sign off the report? Members indicated agreement.

The overtly pro-lawyer changes to the SLCC’s rules, dubbed by critics as more “window dressing” come after Justice Secretary MacAskill earlier this year refused to give more powers to the Judicial Complaints Reviewer to hold dodgy Scottish judges to account, some of whom were revealed to have criminal records, tax dodging investments and shareholdings in businesses directly connected with the courts.

Although the legal profession claim the Scottish Legal Complaints Commission is independent and funded by lawyers, in reality, the SLCC is paid for by a levy from lawyers who in turn recoup it many times over from unsuspecting clients. In short – if, as clients, you have paid legal fees since 2008, you have probably paid your solicitor’s SLCC complaints levy many times over.

Last year, a media investigation revealed lawyers secret links with ‘independent’ regulator, showing the Scottish Legal Complaints Commission is actually run by former Law Society of Scotland employees, lawyers, and other vested interests from the legal profession.

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Seven years on, Lord Gill’s Civil courts reforms head to Parliament as Scots face prospect of little change on access to poor quality, expensive & selective civil justice system

Victorian and late, Civil Courts reform will change little in Scots justice system. SEVEN YEARS after Lord President Lord Brian Gill (then Lord Justice Clerk) was commissioned in 2007 to study Scotland’s expensive closed shop civil justice system which culminated in the unremarkable 2009 Civil Courts Review conclusion that ‘things had to change’, the Scottish Government have today finally announced plans to bring the Courts Reform (Scotland) Bill to the Scottish Parliament for consideration by MSPs later this year.

The much heralded Gill Civil Courts Review published in 2009 which can be viewed online here : Scottish Civil Courts Review Synopsis, Scottish Civil Courts Review Vol1 Chapters 1-9 & Scottish Civil Courts Review Vol2 Chapters 10-15 has so far impacted little on how Scots are able to access justice in the Scottish courts. At the time, Lord Gill branded Scotland’s civil justice as “Victorian” and “failing society”. Little has changed from those criticisms some seven years on.

However, many of the reforms proposed by Lord Gill in 2009 which could have helped the man on the street gain a hearing in court have unsurprisingly been opposed by the legal profession and solicitors who are concerned they will lose their long held almost exclusive rights of audience and ability to charge whatever they want for legal services.

If anything, several of Lord Gill’s key recommendations published over four years ago including those which criticised the justice system as being expensive and out of reach in 2009, are now long out of date, due to the shocking and ever rising costs of legal representation and costs of court time and services which litigants have compared being akin to “extortion charges demanded by protection rackets.”

Published today, in what is clear an attempt to take the sting of the embarrassment suffered by Justice Secretary who yesterday lost his battle to the long held safeguard of corroboration of evidence from the criminal justice system, the Scottish Government have heralded a number of changes which are claimed as a substantial improvement on what is currently nothing short of a money spinning closed shop Civil justice business model for the legal profession, and the judiciary.

The Scottish Government claims the Courts Reform (Scotland) Bill implements many of the recommendations of the Scottish Civil Courts Review, led by principal reviewer Lord Gill and commissioned in 2007. Lord Gill recommended substantial changes to modernise and improve the structure and operation of the courts, which he described in the review as ‘slow, inefficient and expensive’.

The Bill will also modernise Scotland’s courts by introducing greater specialisation and enabling more user-friendly procedures. Key provisions in the bill include:

• Increasing the threshold under which the sheriff court can deal with civil cases from £5,000 to £150,000 – freeing up the Court of Session to deal with the most challenging civil disputes. This is expected to strengthen the role of the sheriff court, while reducing costs and delays for litigants.

• Creation of a new national personal injury sheriff court, where such cases will be heard by specialist sheriffs.

• Creation of a national Sheriff Appeal Court to deal with summary criminal appeals from sheriff and justice of the peace courts, and civil appeals from sheriff courts. This will help avoid the need for some civil appeals to be heard in the Court of Session and some criminal appeals in the High Court, delivering more proportionate costs, while preserving the right to appeal to the higher courts.

• Creation of a new judicial post – the summary sheriff – to resolve lower value civil cases such as debt cases more swiftly and efficiently, while also dealing with summary criminal cases.

• Plans for specialist sheriffs and specialist summary sheriffs in areas of law such as family, housing, personal injury and commercial law, with the expertise to deal with these issues as swiftly as possible.

• New procedures for judicial review cases in the Court of Session including a three month time limit, and new procedures for appeals within the Court of Session and some appeals to the UK Supreme Court to improve efficiency.

Justice Secretary Kenny MacAskill said: “As highlighted by Lord Gill, our civil justice courts have remained relatively unchanged for more than a generation and need to be made more effective and efficient. This bill takes forward our commitment to ensure that Scotland’s civil justice system becomes more accessible, affordable and efficient for those people who need to resolve civil disputes.

He continued: “At present many lower value personal injury cases are raised in the Court of Session costing the parties a disproportionate amount and clogging up the court. In future, most of these cases will be able to be raised in the specialist personal injury court with specialist sheriffs and procedures designed to achieve settlement swiftly and at a proportionate cost to the parties. The sheriff courts are well placed to handle this transfer as the total cases coming out of the Court of Session is only around three per cent of the civil caseload in the sheriff courts.

MacAskill, who was once a High Street solicitor went on to claim: “Our reforms will help us ensure that the right cases are heard in the right places – reducing delays, cost and bureaucracy. They will also offer clearer routes to justice and more specialisation for a range of cases, from personal injury cases to family law.”

The Lord President, Lord Gill, said: “With the introduction of this Bill Scotland has the opportunity to have a civil justice system that is fit for a modern Scotland. Delay and cost have been the bane of Scottish justice for decades. These reforms will enable the courts to deliver the quality of justice to which the public is entitled. I am grateful to the Cabinet Secretary for Justice for his support for the proposals of the Scottish Civil Courts Review and for his vision in promoting this legislation.”

Which? Executive Director Richard Lloyd said: “Getting the courts working better for people must mean cases being dealt with quickly and cost-effectively. Which? supports the plans under the Courts Reform Bill to move business below the value of £150,000 in to the Sheriff Courts as this will mean more consumers will be able to seek redress for poor services or faulty goods. That will be good for consumers and good for the many businesses that play fair with their customers.”

The Scottish Government did not provide any supportive comments directly from litigants who have found it difficult to gain hearings in court, however Diary of Injustice can.

Commenting on the Scottish Government’s civil justice reform proposals, a personal litigant who has recently been charged tens of thousands of pounds for incomplete transcripts of court hearings before Scotland’s senior judges claimed the reforms do not go far enough.

He said: “It is all very well to produce press releases claiming advancements in justice but when litigants really need to use court services and find they cannot obtain legal representation, it is often the case court fees are too expensive, and of such poor quality that justice is unobtainable in the Scottish courts.”

He continued: “And even if you do have a solicitor, it will end up costing you thousands of pounds to achieve very little if anything.”

Speaking to Diary of Injustice today, a legal insider claimed the Civil Courts reforms will not serve to improve the image of Scotland’s expensive yet poor quality justice system at home or abroad.

He  said: “If the Justice Secretary hopes these piecemeal reforms will attract civil cases and other business to the Scottish courts, he will be sadly disappointed.”

He continued: “London’s courts, internationally respected and much less problematic than Scotland will continue to have clear advantages over the Scots model which is after all based upon a small jurisdiction widely associated with excessive legal fees, inferior legal services, and mounting problems with its judiciary.”

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

Lord Gill Lord Justice ClerkThe Lord Justice Clerk, now Lord President, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.

“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”

Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.

 

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Naming & Shaming powers ‘reserved’ : Consumers ‘still in the dark’ on crooked lawyers as identities of rogue solicitors & law firms yet to be published by Legal Ombudsman

Legal OmbudsmanMuch promised Naming & shaming of rogue lawyers yet to happen in England & Wales MORE THAN TWO YEARS after much debate and numerous consultations which received widespread support from consumer groups and the Office of Fair Trading (OFT) for the Legal Ombudsman (LeO) of England & Wales to name & shame rogue solicitors & law firms in published complaints data, the policy decision taken by the LeO in April 2012 to publish the identities of lawyers involved in client complaints, has not yet resulted in publication of a single solicitor or law firm’s identity.

Shedding some light on the lack of publication of lawyer’s names to-date, the latest annual report covering 2012-1013 from the Legal Ombudsman states “In one of the key decisions taken during the year related to the publication of the statistics about ombudsman decisions. While there was general agreement that it was desirable for us to publish as much information about the nature of our decisions as possible, lawyers’ representatives were strongly opposed to naming the lawyers involved. Consumer groups on the other hand argued for as much information as possible about lawyers involved in our cases to be placed in the public domain.”

“In the event, following a lengthy consultation process, our board decided that statistical data about all ombudsman decisions should be published, including the area of law, the nature of the complaint, the outcome of the complaint and the name of the lawyer or firm involved. We began publishing this data from autumn 2012. The initial media interest which this engendered has rapidly subsided and as the information builds, we may soon be able to begin discerning some patterns over time.”

“As well as the routine publication of data, the board decided to reserve to itself the power in individual cases to publish the full decision, including the name of the lawyer (but redacting the name of the complainant) where it considers that it is in the public interest to do so. No such publication took place during the year covered by this report.”

However, many consumers and some consumer protection groups had expected the LeO to begin publishing the identities of rogue solicitors and their law firms last year.

Speaking to Diary of Injustice nearly a year ago last July 2012 Chief Ombudsman, Adam Sampson said at the time : “Our Board wanted to ensure that we’re certain about the accuracy of the data we report in the first data set of published Ombudsman decisions and that the lawyers and law firms who’ll be named have an opportunity to point out any discrepancies prior to publication.

“As a result, and on this occasion only, we have this week contacted each of the 750+ lawyers and law firms that have been the subject of our decisions during the first quarter to tell them what we’ll publish. We will then deal with any feedback, where required, in the weeks that follow before publishing the data. The level of feedback and subsequent work needed following this process will determine how soon we can publish the first set of data.”

The Legal Ombudsman had originally announced in November 2011 they would be going ahead with ‘naming & shaming’ in early 2012, reported by Diary of Injustice here : Scots to be ‘kept in dark’ on details of crooked lawyers while Legal Ombudsman’s ‘naming & shaming’ policy ‘will protect’ consumers in England & Wales

Diary of Injustice reported on the Legal Ombudsman’s consultation on naming & shaming here : Legal Ombudsman moving to name & shame crooked lawyers in England & Wales, crooked Scottish solicitors records to remain protected by secrecy for now

Which logoConsumer group Which? gave their backing to the Legal Ombudsman’s plans to identify crooked lawyers in England & Wales. A spokesperson for Which? told Diary of Injustice last year : “Which? strongly supports the principle of the LeO publishing complaints data under a strict and published policy , including in some circumstances the name of the law firm concerned. We set out our position in our response to the LeO consultation (page 51: opening up regulatory data)) pointing out that it is the expectation of Government that complaints handling bodies are as transparent as possible.”

Legal Services Consumer PanelSpeaking on the LeO’s plans to publish complaints data & the identities of law firms who perform poorly for clients, Elisabeth Davies, Chair of the Legal Services Consumer Panel (LSCP), said at the time : “Research shows that UK consumers are now leaving well over 100 million comments online every year about their experience with businesses across the economy. Lawyers cannot escape this welcome emergence of consumer power, but instead should seek and then use such feedback to improve the service they offer.

She continued : “The courts will decide the fate of the Solicitors From Hell website. However, such websites fill a vacuum that exists because official complaints data about lawyers is not publically available to help consumers identify good quality lawyers. The Panel will continue to push the Legal Ombudsman to name those law firms who regularly provide poor service.”

oftThe Office of Fair Trading (OFT) also supports the Legal Ombudsman’s naming & shaming policy. The OFT stated in its submission (pdf) to the LeO’s consultation : “We appreciate that you need to balance the interests of consumers with the reputational impact on firms and individual lawyers. However, the OFT remains firmly of the view that the publication of named complaints data could incentivise legal service providers, due to reputational considerations, to maintain and/or improve the quality of service they provide to consumers.We believe that essential data would include:

* The number of complaints made against individual firms and lawyers;

* The nature of those complaints and placing them into categories to help see if a pattern develops;

* The ratio of complaints upheld against an individual firm or lawyer;

* Areas of law where complaints tend to focus;

* Which aspects of service the complaints tend to focus; and

* Whether the complaints tend to come from private or publically funded cases.

However, to-date, no solicitor has yet been named by the LeO, prompting fears in some quarters that protests from the legal profession and alleged murmurs of potential legal action by English lawyers if their names appear in complaints data, has put the brakes on total transparency.

Asked for comment today on lack of naming & shaming by the LeO, a spokesperson for the Legal Services Consumer Panel issued the following statement :

“Just to clarify that LeO publish two types of information: · Details of cases that involve a formal ombudsman decision · Individual cases where this is in the public interest test”

“In relation to the former, this information has been published for a while now. When LeO consulted on this, the Panel wanted all complaints involving a remedy (i.e. those that are mediated as well as ombudsman decisions) to be published. In addition, this information would benefit from having more prominence than it does currently.”

“In relation to the latter, as this is an emergency publication power, given the short period that it has been operational it’s difficult to know whether there have been circumstances when LeO hasn’t used these powers but should have. It would be better to assess this once the scheme has been operational for a longer period.”

For now, consumers are still in the dark over which solicitors & law firms fair better than others in complaints data. Exactly when the Legal Ombudsman does identify rogue lawyers and law firms remains to be decided.

Historically, the Scottish Legal Complaints Commission has refused to name any Scottish solicitors or law firms involved in complaints, citing reasons of confidentiality and the terms of the Legal Profession & Legal Aid (Scotland) Act 2007 for the prohibition of naming crooked lawyers in Scotland. It is not thought the SLCC in its current format will ever identify rogue lawyers.

 

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Legal Ombudsman moving to name & shame crooked lawyers in England & Wales, crooked Scottish solicitors records to remain protected by secrecy for now

Legal OmbudsmanConsumers in England & Wales may expect to find out which lawyers & law firms are crooked while Scots will not. AS DEMANDS GROW for increased consumer protection against poor legal services throughout the UK with the public identification of poorly performing solicitors & law firms to enable consumers to better & more safely chose their legal representatives, the Legal Ombudsman (LeO) has now published the responses to its latest consultation on the subject of an evidence based approach to publishing complaints decisions involving ‘crooked lawyers’.

While consumer groups & organisations in England & Wales as well as the UK Government are hugely supportive of the LeO’s eventual move to name & shame crooked lawyers, the legal profession south of the border in the form of the Law Society of England & Wales, law firms & solicitors groups are against the move, citing a number of reasons solicitors generally prefer the public not to know which lawyers are more crooked than others or the exposure of those in the legal profession who have complaints lists a mile & a half long.

adam_sampsonLegal Ombudsman for England & Wales, Adam Sampson.While some of the consumer community have viewed this latest consultation as a delaying move due to concerns over what action the legal profession may take against the LeO if naming & shaming had been implemented earlier this year, Legal Ombudsman Adam Sampson, writing in the Law Gazette on the subject of naming & shaming rogue lawyers & law firms in England & Wales, said : “There is a general belief, though, on all sides that the public has a right to know about firms which genuinely pose a threat to them, either because they have done something awful or have accumulated a large number of complaints, and that these firms should be named; good lawyers can only benefit from the bad ones being known.

“The real problem here is that, in the area of complaints, the usual binary judgements which the law encourages do not apply. Lawyers want us to arrive at a guilty or innocent verdict, to uphold or dismiss complaints. That is difficult. In many cases, even where the complaint is founded on a real error on the part of the firm, the problem is not as great as the complainant thinks it is or the impact as profound.”

“Conversely, even when the complaint does not seem to be rooted in any obvious piece of poor service, it is rarely the case when people complain to us that there is absolutely no ­reason for them to be upset. There is usually something which one can spot as a root cause: even if the service provided was exemplary, as it in many cases is, you can usually see points where the lawyer could have done more to manage the client’s expectations or deal more sensitively with their initial complaint.”

“… sorting lawyers into two categories – those to be named and those to be given the cloak of anonymity – is not easy. The debate goes beyond the legal sector. We are also conscious of the pressure elsewhere from the government, and the pressure on the Financial Ombudsman Service in respect of banks and financial advisers, for example, to move rapidly towards complete openness. We are very conscious, though, of the particular nature of the legal ­market and the issues facing so many more traditional firms.”

“But we are not standing still. The consultations may not have fully resolved the naming issue, but they did enable us to agree and start publishing other details of our work. We have begun to publish data about the sorts of complaints we receive…”

“And, more recently, from the beginning of July we began to publish anonymised summaries of all ombudsman decisions we have made. These decisions are on our website for anyone who wants to see them and we hope, in time, to make them searchable, so that you can begin to build a picture of the patterns of decision-making and the sorts of remedies we order in particular sorts of cases. It is all there. Just not the names.”

Case decisions by the Legal Ombudsman can be viewed online here : Ombudsman decisions and cases on which the Legal Ombudsman has helped resolve informally can be viewed here : On the Case with the Legal Ombudsman. It should be noted these cases apply to England & Wales only.

No such information as is currently published by the LeO is available to Scottish consumers of legal services due to the Scottish Legal Complaints Commission’s refusal to publish decisions or case related information due to the legal profession’s insistence on complete confidentiality in Scotland.

While the Legal Ombudsman moves ahead on the question of publication of complaints, no equivalent consultation on naming & shaming Scottish solicitors has been held by the Scottish Legal Complaints Commission, who have already refused to comment on the issue or get involved in any moves to name & shame crooked lawyers in Scotland.

Which logoAsked for views on the LeO’s plans to publish complaints details & name poorly performing solicitors, consumer group Which? stated in their response (pdf) : “As outlined in our December 2010 ‘Publishing our Decisions’ consultation response, Which? believes the Legal Ombudsman (LeO) should seek to be wholly transparent.This means it should publish as much information as possible and this should include, in some circumstances, publication of the name of legal firms and individual lawyers. We agree with LeO’s conclusion that the concerns expressed about publishing complaints data are overstated. We believe that a more comprehensive publication policy could be implemented earlier than at some point in 2012 and suggest April 2012 as a clear target date for implementation of LeO’s publication policy.”

Factors which are relevant to publication also include:

a) the nature of the work undertaken;
b) whether the complaint was resolved informally after reference to LeO;
c) the number of active clients the firm has to give a ratio of complaints to number of clients; and
d) the firms where LeO investigates the complaint and a finding is made for the firm or the complaint is dismissed and the firm exonerated.
e) the size of the firm in terms of number of partners and turnover.

In addition, the search functionality for the published data should be easy to use and results presented in such a way as to ensure that there is no risk of the data being misinterpreted.  The search functionality should be intuitive and the search options should be expressed in plain English.  It should also be free to access.

On 13th April 2011, the Cabinet Office and Department of Business, Innovation and Skills published a paper titled ‘Better Choices: Better Deals.  Consumers Powering Growth’.  Among other recommendations, it concluded that there should be an ‘expectation that regulators, government departments, regulated businesses and public service providers will release the complaints and performance data they own unless they have good reason not to do so’.

This expectation means that LeO will have to adopt a policy of identifying individual law firms in the circumstances set out in their publication policy.  Which? agrees with and endorses this approach as the default position.

oftThe Office of Fair Trading (OFT) stated in its submission (pdf) to the LeO : “We appreciate that you need to balance the interests of consumers with the reputational impact on firms and individual lawyers. However, the OFT remains firmly of the view that  the publication of named complaints data could incentivise legal service providers, due to reputational considerations, to maintain and/or improve the quality of service they provide to consumers.We believe that essential data would include:

* The number of complaints made against individual firms and lawyers;
* The nature of those complaints and placing them into categories to help see if a pattern develops;
* The ratio of complaints upheld against an individual firm or lawyer;
* Areas of law where complaints tend to focus;
* Which aspects of service the complaints tend to focus; and
* Whether the complaints tend to come from private or publically funded cases.

Legal Services Consumer PanelDr Dianne Hayter, Chairman of the Legal Services Consumer Panel, an organisation which represents the best interests of legal services users in England & Wales, and notably has NO EQUIVALENT in Scotland, stated in the Legal Services Consumer panel response (pdf) to the LeO on naming & shaming : “The Consumer Panel is of the firm view that all consumers have a right to know whether the provider with whom they are thinking of engaging to help them resolve their important legal matter has a poor complaints track record. The Legal Ombudsman will have a heavy conscience if consumers suffer serious detriment which could have been avoided.”

Dr Hayter continued : “The risk that a high number of complaints in social welfare law would harm firms‟ ability to attract more work in other areas, such as conveyancing, could be easily managed by effective presentation of the data. The research suggests that consumers would use complaints data to help them make choices between competing providers. In order to facilitate this, the Legal Ombudsman should organise data by legal activity. In this scenario, consumers would be able to compare complaint volumes for one field of law across the different providers they are considering. The Financial Ombudsman Services enables such comparisons and we see no reason why the Legal Ombudsman cannot do so.”

lawsoc_eng_walesLaw Society of England & Wales disagree on naming & shaming rogue solicitors. Expectedly, the Law Society of England & Wales protested against the effort to publish the names of rogue solicitors & crooked law firms, stating in its submission : “We do not believe that publishing firms’ complaints records  will improve complaints handling or provide clients with useful information which will allow them to make an informed choice about which legal service provider to use.”

However, the Law Society of England & Wales did respond to earlier enquiries from Diary of Injustice, revealing the numbers of solicitors convicted of criminal offences in England & Wales, information which is not available in Scotland. This was featured on Diary of Injustice in May 2009, here : Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’

SLCC MacAskillWimped out : Kenny MacAskill’s Scottish Legal Complaints Commission has refused to hold consultations on moves to name & shame crooked Scottish lawyers. For now, Scots consumers of legal services are to be left in the dark over their choice of lawyer, as the Scottish Legal Complaints Commission and the Scottish Government do not support the naming & shaming of crooks within the Scottish legal profession. One SLCC insider said he felt the anti-client law complaints quango would never name or shame any rogue lawyers under what he called “its current profession friendly approach to dealing with consumer complaints”.

Clearly there is an imbalance in the rights of consumers of legal services in Scotland, where in England & Wales, all consumer groups and even the Westminster Government support naming & shaming rogue solicitors and their law firms. Why is Scotland being left out once again on consumer protection against our historically poor, crooked, yet expensive legal services market ?

All submissions to the Legal Ombudsman for England & Wales consultation on “Publishing our decisions: an evidence based approach feedback” can be viewed at the following links :

Association Women Solicitors response
Bar Standards Board response
Chartered Institute of Patent Attorneys and the Institute of Trade Marks Attorneys response
City of Westminster & Holborn Law Society response
Costs Lawyer Standards Board response
Dean Conrad response
Forum of Insurance Lawyers response
General Council of the Bar response
Institute of Legal Executives response
Irwin Mitchell Solicitors response
ILEX Professional Standards Limited response
The Law Society response
Legal Services Commission response
Legal Services Conumer panel response
Manchester Law Society email response
Media Lawyers Association response
National Consumer Federation response
NewLaw Solicitors email response
Office of Fair Trading response
Which response

 

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Scottish failure, English success ? Annual report of Legal Ombudsman of England & Wales is ‘streets ahead’ of anti-consumer Scottish Legal Complaints Commission

Legal OmbudsmanLegal Ombudsman’s first annual report is ‘streets ahead’ of Scottish attempts at complaints regulation via SLCC. LAST WEEK the Legal Ombudsman (LeO) for England & Wales, Adam Sampson, issued his first annual report on regulation of complaints against the legal services market for England & Wales. Mr Sampson’s first report, which features stories from the LeO’s investigations into complaints has been for the main, well received, and is noticeably much more consumer friendly than the notoriously anti-client Scottish Legal Complaints Commission (SLCC) which has produced three annual reports since it came into being in 2008, the latest of which showed SLCC had managed to uphold only one single complaint in three years.

The full annual report of the Legal Ombudsman can be downloaded here : Legal Ombudsman Annual Report 2010-2011. The LeO’s website is a world away from the Scottish SLCC’s poor offering. The LeO also offers information on case examples where the LeO have investigated complaints, more of which can be found HERE while decisions of the LeO can be viewed HERE. The Legal Ombudsman for England & Wales, Adam Sampson, the Legal Ombudsman also has an online blog, well worth a visit HERE.

Within the LeO’s report, some of the following stories are featured in a significantly more detailed manner than anything seen in Scotland. The problems encountered by consumers in England & Wales when dealing with the legal profession will be familiar to Scots consumers of legal services, the only difference being in Scotland, consumers have to deal with the Scottish Legal Complaints Commission & the Law Society of Scotland, two of Scotland’s self regulators of the legal profession renowned for their anti-consumer stance when dealing with complaints against solicitors.

Mr Sampson said in his report : “We use lawyers at key points in our lives – at important, and often upsetting or stressful times like when we move house, have an accident or get divorced. I have included these stories in my first Chief Ombudsman’s report because the experiences of the people involved demonstrate the impact of a changing and developing legal services market.”

In the case of a will gone wrong, where a client had initially gone to a solicitor for a will then had been introduced to a will writer by the solicitor, the LeO reported :

Mr F complained to us that he had gone to a high street solicitor to write a will. He was then introduced to an individual in an adjoining office whom he was told would provide the service. In the event, the will proved defective. However, when he complained, Mr F was told by the firm’s senior partner that the will writer concerned had been working for a linked, but unregulated, company offering legal services, including will writing.

This was the first of a number of similar matters raised with us about the same company. Although the company claimed to be out of jurisdiction and the service – will writing – is not a reserved activity, we considered that the connection between the solicitors firm and the company complained about was umbilical: the firm had made the introduction, the complaint was answered by the senior partner on behalf of both entities, and the senior partner was the owner of both. Since the senior partner was a regulated individual, we judged that the company fell within our jurisdiction.

In the event, and to complicate matters further, while our investigation was nearing its end, the senior partner died. The company was then taken over by another, similar company which appears to have even less connection with a regulated individual. Nevertheless, we believe that the remedy we ordered in this case will be enforceable, either against the successor company or the legal insurers.

In another example, the LeO reported :

Mr P is a trustee of a social club. He and his fellow trustees employed a firm of lawyers to sell the club’s premises and to distribute the payment of the proceeds of sale to all the members of the club – about 180 people. The club found buyers, the sale went through and the proceeds were paid to the law firm, as is normal practice. Part of the money was used to pay off the club’s final bills and some loans, which the firm handled, leaving a substantial amount of around £180,000 to go to members. The firm also advised that there would be a delay in distributing the money to members for various administrative reasons. Not being an expert in conveyancing, Mr P was satisfied with this. After six months the firm got in contact to begin to sort out the payment to members… and then went silent.

Mr P tried to raise his concerns with the firm. He then came to the Ombudsman, as the firm had not explained what had happened to the money from the sale and the members had not yet received any cash. He also asked that the firm refund the fees the trustees had already paid them, as the work had not been carried out properly.

We found that the firm had been a sole practice – but that the lawyer was no longer practising. This seemed to be why Mr P hadn’t heard about the money from the sale of the club, though it was confusing as the solicitor occasionally got in touch. Mr P didn’t know what to do, so had sought advice from a second firm of solicitors. They also tried to contact the first firm but had no reply. Mr P heard again briefly from his first lawyer to say that members would get their money soon… and then heard nothing again.

When we looked into this case, there was very little written down about what had happened. There was no client care letter, no written details about how the cash from the sale had been handled, or even about what money had been paid to clear debts and loans. What was clear was that there was some sort of problem in the law firm, and that the lawyer had tried to delay this matter. It was also clear that most of the money from the club was still in the solicitor’s client account, even though the firm’s records were very poor.

There had been no attempt to pay this money to the club members – but the money was the club’s and should not have been kept for so long by the solicitor. It had been three years since Mr P and the other trustees put the club up for sale.

Our Ombudsman decided that there was around £180,000 outstanding and required the firm to re-pay this, with interest, to the club and its members. A formal Ombudsman’s decision was required as the solicitor did not cooperate throughout our investigation. We also referred this and the outcome of this case to the regulator, the Solicitors Regulation Authority, for their help in getting the club’s cash out of the solicitor’s client account and returned to Mr P and the other members

In a third example, the LeO reported :

Mr and Mrs N had taken on a solicitor to help with two separate matters – an employment tribunal and the other to do with their mortgage insurance. They were clearly not happy with aspects of his work and felt that the lawyer had not taken their concerns seriously. After trying to raise their concerns with him, they complained to us.

We first contacted the solicitor in October 2010. He repeatedly failed to respond to or comply with our requests for documents and information. Mr and Mrs N now saw the solicitor ignore the Ombudsman – and were again left waiting for an outcome to their complaint. Eventually, after seven months had gone by, we decided to take enforcement action against him as he had repeatedly failed to produce documents or provide information – even when he received a formal notice requiring him to. There were some eight prior letters, phone calls or emails from the Ombudsman, plus a formal notice and a letter from the Solicitors Regulation Authority, before proceedings were issued.

The court first dealt with the case in May, but the solicitor failed to attend the hearing and so the judge ordered his arrest. A few days later, the solicitor surrendered to the court and was brought before the judge, when he was released after a court date had been set.

At the formal court hearing, the solicitor promised the High Court that he would cooperate with an investigation into a complaint against him – or risk being punished by the court. The judge emphasised to the solicitor that it was “absolutely essential” he communicate with the Ombudsman and cooperate to a high professional standard. Failure, said the judge, was “likely to attract the sanction of the court”.

The lawyer gave an undertaking to the court that he would do everything he could to help find the files needed by the Ombudsman, to cooperate with the investigation into the complaint and any others against him, and keep the Ombudsman updated with his contact details. He was also ordered to pay the Ombudsman’s costs in the case so far of just over £11,000. At the time of writing, we are still waiting for the information we need to resolve this case – but there is another court date set, so, while it is disappointing to have had to go to these lengths, there is an end in sight for Mr and Mrs N.

At the same time as we were dealing with this case, which ended up in the High Court, we were having similar issues with another solicitor.

This one – a busy sole practitioner with a general practice – had failed to respond to our correspondence about Mr O’s complaint. So he was also served with a notice requiring him to produce the relevant documents and other information. When he ignored it, we reported him to the Solicitors Regulation Authority. When more time passed again without hearing from him, we also said that we had the power to ask the High Court to compel him to cooperate. At the last minute, when faced with having to explain his non-compliance to a judge, the lawyer reconsidered his position. He provided us with the information we needed, reconciled with Mr O and continued to represent him.

adam_sampsonLegal Ombudsman for England & Wales, Adam Sampson. Mr Sampson also wrote in his report about the blurred edges of regulation : “There have been cases which have begun to clarify some of the jurisdictional tests which we will apply to complaints raised with us. These include whether the person making the complaint has been provided with legal services (a test which is significantly wider than whether the complainant was a “client” of a lawyer); whether the complaint was within the timescales laid down by our Scheme Rules (normally within a year of the complainant having knowledge that there was reason to complain); whether the complaint was from an individual, small charity or micro-enterprise (rather than a larger, corporate entity), and so on. We believe that, although we will need to keep these aspects of our jurisdiction under review, there is nothing inherently so opaque about these tests that cannot be clarified over time.”

Which logoConsumer Group Which? gave its reaction  to the Legal Ombudsman’s first Annual Report, stating : As the Legal Ombudsman publishes its first annual report today, Which? supports its call for greater protection against confusing structures and dodgy claims management and will-writing companies. Which? executive director Richard Lloyd said: “We want the government and regulators to wake up to the current lack of clarity and to provide a clear and straightforward route of redress for consumers”.

Undercover investigations : Which? undercover investigations into both will-writing firms and claims management companies have revealed examples of poor practice. But the Legal Ombudsman does not currently have the powers to investigate these types of organisations. Many consumers believe they are getting a legal service from such companies, but don’t realise that the work may be carried out by someone who isn’t authorised to do so.

Route for redress : Expanding the remit of the Legal Ombudsman would allow it to tackle problem areas of the market, give it greater scope to challenge future issues and offer customers a clear means of redress where they have received a poor legal service.

Richard Lloyd said: “As the legal services market continues to grow in both size and complexity, it’s crucial that consumers who have paid for a legal service that’s not up to scratch know where to turn to get help”.

Gaps in regulation : Law Society chief executive Des Hudson said: “The gap in regulation which allows unregulated cowboys to operate in areas like will-writing doesn’t just cause unfair competition to solicitors, who provide a regulated, professional service. It is also damaging to consumers, because the unregulated providers aren’t insured, don’t provide a compensation fund, and aren’t covered by the Legal Ombudsman’s scheme for consumer redress.”

38,000 legal complaints : The Legal Ombudsman service was established in October 2010. Its remit is to make sure legal complaints are ‘resolved quickly and with minimum formality by an independent person’. More than 38,000 people contacted the Legal Ombudsman during its first six months in operation. The organisation has launched nearly 4,000 investigations into the service provided by lawyers, and resolved 1,450 cases.

SLCC Scottish Legal Complaints Commission a complete failure for Scots consumer protection against poor legal services. Well, the differences in how the Legal Ombudsman and the Scottish Legal Complaints Commission operate are astounding, to say the least. Perhaps Scots should flock south of the border to use English legal services given the prejudice & poor regulation offered by the Scottish legal services market. At least the LeO appears to have more of a will to tackle the main problems of regulation rather than the SLCC who have done little for the past three years other than soak up over half a million pounds in expenses claims & remuneration, while chalking up a few bar tabs at the same time.

 

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Bitter blow for Scots & access to justice reforms as Tory-LibDem coalition scraps Scottish consumer champion Consumer Focus Scotland

Consumer Focus Scotland logoScots consumer champion Consumer Focus Scotland axed by London Government. SCOTS CONSUMERS suffered a bitter blow today at the hands of the Westminster Conservative-LibDem coalition Government as it was announced Consumer Focus Scotland and its parent organisation Consumer Focus are being scrapped as part of the ‘savings drive’ to abolish ‘quangos’ which has so far only affected 200 out of 900 ‘Quasi-Autonomous Non-Governmental Organisations’ & other statutory bodies reviewed for closure, with at least 380 apparently being retained.

The announcement of the spending cuts caused the Cabinet Office’s website to temporarily crash, however the list of publicly funded bodies is now available HERE (pdf). The entry for Consumer Focus reads : “No longer an NDPB – Government will consider the outcome of ongoing sectoral reviews and consult early next year on proposals to abolish Consumer Focus and transfer its function to Citizens Advice.”. The Taxpayers Alliance are left to gloat now their demand Consumer Focus be axed, has come true.

Douglas-SinclairDouglas Sinclair, Chairman of Consumer Focus Scotland. Responding to the announcement by the UK Government today, Douglas Sinclair, Chair of Consumer Focus Scotland, said : “Consumer Focus, and Consumer Focus Scotland have achieved a huge amount for consumers. In the last few months alone Consumer Focus has obtained a £70 million pound energy bill refund for consumers across the UK and in Scotland the passage of the Legal Services (Scotland) Bill has meant the culmination of Consumer Focus Scotland’s campaign to widen choice and protection for users of legal services, and we played a key role in the establishment of the Post Office Challenge Fund.”

Mr Sinclair continued : “The UK Government has decided to transfer at least some of our functions to Citizens Advice and Citizens Advice Scotland. I am immensely proud of what we have achieved. The issue now is not who does the work but that the work is done at a time when consumers are facing difficult economic circumstances, especially those who are vulnerable and whom we have a particular duty to protect.”

“What matters now is that the transfer happens in a way that works in consumers’ interests. We will be working with the UK and Scottish Government to do this in the best possible way in the interest of consumers in Scotland. The expertise and knowledge that has enabled us to fight for consumers must not be lost. Changes must not be at the expense of the public’s rights and needs – which organisations like Consumer Focus Scotland were created to protect.”

The Office of Fair Trading (OFT) is also being scrapped, its competition functions merged with the Competition Commission along with a transfer of its consumer and enforcement functions. High-profile consumer right challenges in the future will be mounted by underfunded local trading standards officers – I don’t think so.

BBC News reported on the quango cuts saying Cabinet Office Minister Francis Maude had told MPs money would be saved by axing the quangos, saying the main reason for the cull had always been to improve accountability, by having decisions taken by ministers and local authorities where possible.

Consumer group Which?, who will remain as one of the few remaining consumer protection organisations said today the shakeup of the consumer landscape with the scrapping of Consumer Focus must not leave consumers exposed.

Peter Vicary SmithWhich? CEO Peter Vicary-Smith. Which? Chief Executive, Peter Vicary-Smith commenting on the axing of Consumer Focus & other consumer bodies said : “It’s vital that front line advice and enforcement services are maintained, so we’re pleased that Trading Standards and Citizens’ Advice have survived the cull. Which? is talking to the Government about how it can help with providing extra support to consumers in the new regime and continue to do so without taking Government money.”

He continued : “These changes also raise questions about moving responsibility for national enforcement to dedicated individual Trading Standards authorities. How will a local Trading Standards have the resources or the expertise to take on national companies such as the big banks, the airlines and the supermarkets?

“The merger of the Competition Commission offers the opportunity to strengthen competition regulation in the UK, but this will only happen if the new body is given the resources it needs to match its task and police markets effectively.”

Perth based law reform campaigner Stewart MacKenzie, author of Petition 1247 – the McKenzie Friend petition which brought about one of the most significant changes in Scots courts for decades and won him the Which? Consumer Champion award for 2010 condemned today’s decision to scrap Consumer Focus Scotland.

Mr MacKenzie said : “’Consumer Focus have done incredible, important work since they were formed 2 years ago, as did their predecessor, the Scottish Consumer Council over many, many years. This is a shattering blow and I can only hope there is a route yet available which may be able to stop this happening and that is why I’ve asked my msp John Swinney to get the First Minister involved in this matter.”

The Scottish Government were asked for comment on today’s blow against Scots consumers. Their statement will appear here if one is issued.

This is of course, a bad day for Scots. No matter how this disgraceful decision is spun, Consumer protection in Scotland will suffer with the loss of Consumer Focus Scotland. Good people and a lot of valuable experience centralised in a well respected national coherent body have been thrown out under the guise of saving money, when in reality it will cost consumers in Scotland and across the country, dearly.

The plan by the Westminster Government, apparently, is to hand over Consumer Focus Scotland’s duties to Citizens Advice Scotland and the many uncoordinated local Trading Standards teams scattered across the regions who themselves are now subject to huge cuts in local authority spending. From experience in dealing with CAB/CAS & local Trading Standards outfits in Scotland, these organisations will have to up their game considerably if they are to match the effective, coordinated campaigning by the Scottish Consumer Council and its successor, Consumer Focus Scotland who served all of us in Scotland so very well over many years.

From the beginnings of my dealings with the Scottish Consumer Council in the mid 1990’s, during its leadership by Derdrie Hutton, DBE, to its current form as Consumer Focus Scotland, I can safely say they have always been a beneficial & much-listened-to voice for change, in the many areas of consumer interest & protection in Scotland, especially those issues on which I report including civil justice reform, regulation of the legal profession & access to justice.

Sadly in 2010, I am now reporting this much valued voice and effort on the part of Scots consumers is to be lost in this very anti-consumer move by the coalition Government in London.

 

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‘Choice’ but not as we know it : Legal Services Bill passed, Scots access to justice remains mostly under Law Society’s control

Debating chamberScottish Parliament passed Legal Services Bill, doing no particular favours for consumers. THE Legal Services Bill was finally passed by MSPs at the Scottish Parliament late yesterday afternoon after what can only be described as a round of ‘buy one amendment get one free’ set of deals between the Scottish Government & Law Society of Scotland ensuring consumer choice & competition in Scotland’s legal services marketplace will for the most part, remain out of reach of Scots consumers.

The Law Society are happy as are most of the big law firms in Scotland who supported the bill, happy their fiefdom of the Scottish legal services market has been preserved once again, and ‘meddling outsiders’ kept out of Scotland’s multi billion pound racket legal business. As for the Consumer bodies, well, most of them are just having to put a brave face on things and say they ‘welcome’ the bill which we all know is a mere shadow of England’s soon to come into force Clementi proposals and the Which? supercomplaint which began the whole Legal Services Bill process in Scotland.

Fergus Ewing Scottish ParliamentCommunity Safety Minister Fergus Ewing, said the bill would deliver benefits to lawyers & clients, after being forced by the Law Society to amend access to justice plans. The Scottish Government’s Minister for Community Safety Fergus Ewing commenting on the passage of the bill through the Scottish Parliament said: “The passage of the Legal Services (Scotland) Bill today is good news for our businesses and consumers. At the heart of this Bill is a desire to modernise the profession. It presents greater opportunities, in a regulated framework, for firms of all sizes to be more competitive and to devise a business model which suits them and their clients.”

He ended by saying : “The Bill will deliver clear benefits for the legal profession and consumers.”

The Law Society’s media release reflected the profession’s welcome relief their cash registers will still be ringing up huge charges & fees to clients for some of the western world’s worst quality legal services. The Law Society were quick to gloat their amendments, forced on the weak SNP minority controlled Scottish Executive “meant the ‘Tesco law’ option, which would have allowed 100% of non-solicitor ownership of a law firm, was ruled out for Scotland.”

The Law Society release went onto triumphantly announce : “The legislation will for the first time allow non-solicitors to set up in partnership with solicitors to provide legal services in Scotland. The Bill, as passed, will mean solicitors and other regulated professionals must still have a majority share of at least 51% in any new legal services business, with the remaining 49% open to other external investors.”

jamie_millarJamie Millar, president of the Law Society whose own law firm Lindsays is linked to a dishonest firm of Borders solicitors, said: “I am pleased that MSPs have voted to approve this legislation. These changes will broaden access to legal services and allow the Scottish legal profession to remain competitive against a challenging economic backdrop and in an increasingly international, competitive market. At the same time, the Bill continues to protect the principles and core values that underpin the Scottish legal profession.”

He continued : “There has been much debate, both within and outwith the legal profession, on this Bill and its provisions to allow solicitors to enter into practice with non-solicitors. However, it is now important to move forward and ensure these changes work in practice within the strongest possible regulatory framework. The Society intends to work with government to enhance the provision of legal services and access to justice for people in Scotland.”

One client who has been involved in a bitter 5 year battle with the Law Society and has faced problems in securing legal representation after several law firms dumped him over a case involving a complaint regarding his original solicitor’s embezzlement of over £60,000 from the sale of land scoffed at Mr Millar’s statement.

He said “What principles and core values of the legal profession is Mr Millar talking about ? I know of one solicitor who is a cocaine user, another who is a convicted paedophile, another who was charged with raping & assaulting his own wife, and another who has defrauded over 15 clients of several million pounds yet each of these crooks are still practising law in Scotland.”

He continued : “Mr Millar and his colleagues are talking a lot of rubbish when they talk about values of the legal profession and access to justice. There are no values and there is no access to justice. People should wake up to realise their solicitors and those in charge of regulating them are not be as clean as they claim to be.”

Consumer Focus Scotland logoConsumer Focus Scotland’s Director, Marieke Dwarshuis commented in a statement on the Legal Services Bill vote, saying : “We are delighted that Parliament has voted in favour of widening choice and protection for users of legal services and increasing access to justice. We have long argued that these changes are in the interest of consumers and are pleased that today’s vote will pave the way for the development of a legal services market which better meets the needs of the public.”

Ms Dwarshuis continued : “We recognise that there are many who remain sceptical about the benefits the Bill will bring about, but are confident that in time, most will come to accept that the legislation will be effective for both users of legal services and the legal profession.”

Which logoWhich? also ‘welcomed’ the Legal Services Bill. A spokesperson for Which?, whose supercomplaint began the Legal Services Bill’s peculiarly Scottish journey, in comparison to the much easier and stronger pro-consumer friendly Legal Services Act (2007) for England & Wales, said : “We are delighted to welcome the Bill which will improve legal services for the public in Scotland.”

Doubtless however, some at Which? must be feeling a touch put out over the way the Law Society of Scotland so easily butchered their proposals for free market competition in legal services, as what was passed yesterday in the Scottish Parliament clearly puts Scots consumers on a less choice, less protected, lower standard of service footing than consumers in England & Wales.

The Office of Fair Trading, who issued a report calling for changes to Scotland’s closed shop legal services market has issued no press release or comment.

I could easily write something along the lines of … I find it hard to believe the Law Society were able to amend the bill, bully the Scottish Government to introduce amendments, call in msps for ‘personal briefings’, suggesting they follow the profession’s line to “avoid trouble further down the line”, ensure consumers or anyone with an actual experience of how legal services are provided were not allowed to testify in public to the Justice Committee … but there wouldn’t be much point, as what some might find hard to believe, happened, and I covered it as the Legal Services Bill progressed through Holyrood, here : Legal Services Bill – How Scotland’s legal profession avoided giving consumers wider access to justice

In my opinion, the whole debate on the Legal Services Bill can be summed up in one short television appearance between Mike Dailly & former Law Society President Ian Smart. It really was nothing more than a battle for market share and power between factions of the legal profession … nothing really to do with consumers at all. You can watch the video of Ian Smart & Mike Dailly slogging it out on live television here : Law Society President Ian Smart v Govan Centre’s Mike Dailly on Legal Services Bill reforms. There would have also been a good video clip of Fergus Ewing caving into solicitors during a Law Society meeting, however the Law Society pulled the clip from their own website for reasons unknown – or perhaps so the public couldn’t see how easy it is for the legal profession to influence an elected politician.

Video coverage of key points of testimony on the Legal Services Bill to the Justice Committee by the legal profession and consumer groups, can be viewed in my earlier reports or at InjusticeTV & LawyerTV

I’d be happy if someone could prove me wrong – quote me an example if you can .. however the odds are stacked against consumer rights taking precedence over the legal profession in Scotland and every single piece of legislation, order or amendment passed by the Scottish Parliament concerning legal services or regulation of our country’s legal system since the Scottish Parliament came into existence in 1997 leaves the consumer interest far behind that of the legal profession – even the Legal profession & Legal aid Scotland Act 2007, passed in a similar blaze of glory, gory & Law Society sponsored resistance at Holyrood, which as we all now know has ended up a brutalised, watered down, now almost useless piece of legislation in terms of consumer protection from Scotland’s historically poor quality legal services market.

If anything can be learned from the way the Scottish Parliament handled the Legal Services Bill I’d say its this – collectively, msps in the Scottish Parliament cannot be trusted to pass a piece of legislation involving the legal system which puts the rights of ordinary members of the public over & above the interests of the legal profession. Its as simple as that. There is no other conclusion someone outside the Scots legal system’s bubble can reach on the available evidence.

It is with some irony that on the same day England & Wales placed the consumers interests first, moving to fully independent regulation of their legal services market, Scotland took a backward step which will see the Law Society of Scotland ultimately appointed by the current SNP controlled Scottish Executive as an “approved regulator” to wipe the floor with consumer complaints against legal services once again.

On this note, consumers in Scotland who actually value what they have left in their lives, what they have worked for, what they own, what assets they have, might wish to consider using legal services in England if at all possible because at least consumers might have better protection from independent regulation in the form of the new Legal Ombudsman for England & Wales, which at least so far, appears to be a world of difference from any Scottish solution born from the Law Society of Scotland’s grip over Scots legal reform …

 

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