Sunday, July 15, 2007

Legal profession divided over Clementi implementation for Scotland

More From A Diary of Injustice in Scotland

Obsession for control divides legal profession over opening up of legal services monopoly in Scotland

Over the past few weeks I have covered the important issue of access to legal services in Scotland - which is currently the well controlled monopoly of solicitors & advocates.

Put simply, if you need access to legal services, only a lawyer or advocate will do, and if they don't want to take your case, that's it - no access to justice for you - so, forget about using a lawyer to sue a lawyer, or take any controversial case anywhere near a court because if it's not in the legal profession's interest to take the case on, you are left out in the cold - along with many of the Scottish public who now can't get access to legal services.

The wise thing to do is open up the legal services market, as I have said in articles such as : Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland & It's time for Injustice to end, but will the SNP end Injustice in Scotland ?

The established policy of the Law Society of Scotland, and the rest of the legal profession over the decades, has been to fight any possibility that anyone, other than lawyers or advocates, could offer legal services to the public - and thus, control the public's access to justice.

That much was proved by the FOI battle between Kevin Dunion & the Scottish Executive over the release of documents which revealed the extent of how the legal profession went about protecting it's monopolistic business model on legal services - to the point that even a serving Lord Advocate (Lord Hardie) had recommended repeal of legislation (which had been held back for years by legal profession lobbying) to open up the legal services market, which is surely in the public interest.

Now, recently, as I indicated above, I reported on the Which? "Super Complaint" against the legal profession in Scotland over this very issue, and the Law Society of Scotland's response was quite clearly hostile, rejecting any 'interference' from the London based OFT regulator, and officials at Drumsheugh Gardens, base of the Law Society's Headquarters, swiftly mounted a public relations campaign against any idea we needed more choice in the Scottish legal services market.

I reported the Law Society's attitude on this issue here :

Law Society of Scotland reject Which? 'interference' & "super complaint" to OFT against lawyers monopoly on access to justice

The spin campaign by the Scottish legal profession has however, taken a new turn with the infamous legal firm of Turcan Connell - known to many as a legal firm used by ruthless landlords in the pursuit & intimidation of tenants across Scotland, wading into the "Tesco Law" argument with a letter from Douglas Connell to Law Society Chief Executive Douglas Mill, calling for "a more creative approach". Letters of a similar nature were also sent to the new Justice Minister Kenny MacAskill ...

To quote the Herald article :

"In letters sent yesterday to the Law Society's chief executive Douglas Mill and to the new Cabinet Secretary for Justice, Kenny MacAskill, a former solicitor, Connell argues that "many small towns would benefit from solicitors, accountants, surveyors and approved FSA regulated practitioners being able to join together to take advantage of the economies of scale - this would be a Scottish solution to Scottish issues".

He says changes to the practice rules could allow lawyers to share fees with non-lawyers and to create firms which would allow a minority of non-lawyer partners, all approved by the Law Society of Scotland."

Douglas Connell seems, on the face of it, to be going against Law Society policy on this issue, but is he really ? or, as many in the legal world have already said this week, is this just more of an organised softening of the Scottish legal profession's attitude towards the likes of "Tesco Law", more properly known as the Clementi reforms, which in England & Wales, have opened up the legal services market somewhat more than before.

The Law Society of Scotland surely know it's inevitable their long held and long protected monopoly on legal services will fall ... and so it needs to find a new role for itself in the face of increased competition to its own members in the legal services market .. but will long held beliefs in the Law Society of omnipotence & control freakery be able to give way to the public interest ?

Of course, let us remember, while the Clementi reforms in England & Wales should be implemented - there has to be an effective independent regulatory for those people & companies which will enter the legal services market, because relying on the likes of accountants self regulators & the rest, will prove as disastrous as the kind of corrupt self regulation we have seen for years at the hands of the Law Society of Scotland.

The new regulator which is surely required to keep an eye on those who will enter the legal services market after Clementi is adopted, must NOT be the Law Society of Scotland - they have proved themselves over the decades to be untrustworthy in regulation of the legal profession.

There must be a fully independent regulator with strong powers of enforcement to police those who will be able to handle the public's legal work, to ensure standards are met and adhered to. Let's not let the Law Society try to find a new niche for themselves, because they certainly don't deserve it after the way they have treated clients of crooked lawyers for all these years - and lets be careful of believing who is really promoting change ...

Of course, Mr Connell, you could always change the Law Society of Scotland's policy on access to legal services a more democratic way, by having a vote in the membership, or is the legal profession, or perhaps more accurately, the Law Society's leaders not democratic enough to allow it's members to vote on leadership & policy issues these days ? Scotland managed it, why not the lawyers ?

With one foul swoop, Mr Connell, you and the rest of Scotland's 10,000 solicitors could vote in a new administration at Drumsheugh Gardens and do away with 17 years of dictatorial control, intimidation of clients & solicitors, corrupt complaints procedures & fiddled investigations, and an infamous anti client policy which has brought about 5000 complaints a year, and total client dissatisfaction with Scottish solicitors and their work - or, is it perhaps the Scottish legal profession prefers it this way ?

Here is the full article from the Herald newspaper on this 'apparent' divide in the legal profession's view on how to open up legal services in Scotland, and just to remind you all of at least one issue of 'self regulation' over a serious complaint regarding Messrs Turcan Connell, a news item from the Herald earlier this year is also quoted for your interest ...

Connell renews call for ‘Tesco law’ for Scotland
SIMON BAIN June 07 2007

The Scottish legal profession's apparent lone voice in favour of the easing of restrictive practices has called for a "Scottish solution" to the threat of "Tesco law" crossing the Border.

Douglas Connell, co-founder of private client advisers Turcan Connell which operate a multi-disciplinary practice across law, accountancy and finance but which can only admit lawyers as partners, has called on the Law Society of Scotland to adopt "a more creative approach".

In letters sent yesterday to the Law Society's chief executive Douglas Mill and to the new Cabinet Secretary for Justice, Kenny MacAskill, a former solicitor, Connell argues that "many small towns would benefit from solicitors, accountants, surveyors and approved FSA regulated practitioners being able to join together to take advantage of the economies of scale - this would be a Scottish solution to Scottish issues".

He says changes to the practice rules could allow lawyers to share fees with non-lawyers and to create firms which would allow a minority of non-lawyer partners, all approved by the Law Society of Scotland.

Scotland would not have to follow the Clementi proposals in England and Wales, which float a whole range of alternative structures, including multi-disciplinary partnerships and externally-owned legal service firms as envisaged by Tesco.

Connell warns: "Cross-border mergers have already taken place but that trend may see more substantive moves south of the border if recognition of new forms of business structure become available to practitioners in England and Wales but not in Scotland. It would be galling to see Scottish firms having to export themselves to England in order to avail themselves of an English solution to a problem which could be resolved here in Scotland."

Turcan Connell this week opened a London office and has a large number of English qualified staff.

and now the article from the Herald newspaper on Turcan Connell's attidude over clients ... having many wonder what else is in the Turcan Connell closet ....

Law Society of Scotland rejects complaint over estate ruined by huge legal fees

Legal bill wipes out net assets
IAIN MORSE and SIMON BAIN January 02 2007

A leading Edinburgh law firm which charged fees of more than £16,000 to administer an estate with net assets of under £14,000 has had a complaint against it to the Law Society of Scotland rejected.

The complaint was made by widow Dr Kate Forrest, a lecturer in Russian in Edinburgh, against Turcan Connell, the multi-disciplinary firm which prides itself on its "family office".

Forrest complained that the firm had told her only that it would charge £200 an hour, had entered into unnecessary work, and had failed to give her estimates, or issue itemised bills, despite repeated requests. She claims the firm then gave an undertaking to halt the charges, in a meeting with witnesses at the firm's office, but this did not materialise.

When the Law Society examined the complaint, it ruled that the meeting could not be taken into account as the firm had no record of it, and it accepted an explanation by managing partner Douglas Connell that the complaint had been based entirely on a "misunderstanding".

The £16,000 in charges had the effect of more than wiping out any assets in the estate, which had gross assets of £69,574 but debts of £55,731.

The Law Society reported that the firm had "apologised for the oversight" in billing, and that "simple oversight … should not be defined as inadequate professional service".

In November, Jane Irvine, the Scottish Legal Services Ombudsman, issued a rare public rebuke to the Law Society over its handling of complaints, urging it to "recognise that the consumer age has dawned".

The Scottish Executive is poised to scrap self-regulation by the profession, policed by the ombudsman, and introduce a Scottish Legal Complaints Commission, which the society is fiercely resisting.

The number of complaints received by the Law Society of Scotland has shot up from 2402 during 2002 to 4849 last year. The 12-page annual report of the society's Client Relations Office records 1057 cases in which no action was taken at all last year, while in 108 cases a solicitor's conduct was found unsatisfactory.

The current procedure starts with a reference to the law firm against which the complaint is made, and internal procedures to be followed by firms are laid down by the society. Only after these are exhausted can complainants proceed to the Law Society itself. And then, perhaps surprisingly, complainants can be charged by the law firm for their work in submitting the relevant evidence to the society.

The evidence regarded as acceptable by the society may be limited only to the files presented by the law firm, though it can order the production of "missing"documents - such as the record of a meeting. If a complaint is rejected by the society, the complainants have recourse to the courts. But this means finding a law firm prepared to act against another firm - which as The Herald has reported can be difficult in Edinburgh - at a minimum cost of several thousand pounds, a considerable disincentive to taking legal action.

Kate Forrest says she is left with no choice but to go to court if she wishes to challenge an outstanding fee in excess of £8000. She says: "For me this would be expensive and risky. I am not rich and they know this very well."

The Law Society of Scotland said: "A complaint about a fee could be service or conduct as it could result from a breach of a rule if there was no letter of engagement, or IPS (inadequate professional service) if there was insufficient communication about a fee with a client.

"If a client feels a fee is too much then it can be referred to the Auditor of Court who can decide what a reasonable fee might be. Firms may also charge for providing a bill which itemises each letter, phone call, etc, especially if it is for a large volume of work.

"If someone takes a court action against a solicitor then the society is not involved in that process."

Turcan Connell said: "We care deeply about ensuring that we give every client the best possible service. Our trust and tax experts are among the most proficient in Scotland, and we always strive to protect our clients' interests and minimise their costs as far as possible.

"Dr Forrest is no longer a client. We resolutely protect the privacy of all current and former clients, and would not make any public comment on an individual's personal circumstances or relationship with us."

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