THE Law Society of Scotland’s current President, former Procurator Fiscal Cameron Ritchie has confirmed to the Glasgow Bar Association that Society staff & the Criminal Legal Aid Negotiating Team, whose members all resigned to form Esto Law Ltd, a venture accused by some in the legal profession of being an attempt to siphon off legal aid funds from many law firms, met with the Scottish Legal Aid Board on the police station duty scheme on no less than TWELVE occasions, in which “It was not the practice at these meetings to take a formal record which is then approved by those who attended”.
In what appears to have become an engrained culture of secrecy & fear at the Law Society of Scotland, who fear differing versions of the Esto Law saga reaching the rest of the Society's membership, Mr Ritchie went on in his letter to say : “My Vice-President and I did review the staff notes that were taken of these meetings but such notes are not taken with a view to publication.”
When a member’s society starts holding meetings behind its own members back, with few, none or only secret notes taken, surely that society has lost all credibility to claims it looks after its members interests (and incidentally, those of the public! – Ed)
A recent report from Scottish Law Reporter on the Esto Law Ltd saga in which the Scottish Legal Aid Board admitted to meetings between its top staff & Esto Law representatives, also drew responses from QC John Scott, offering explanations over events which some may find useful to read. That report and Mr Scott’s comments are located HERE
The letter from Mr Ritchie to the Glasgow Bar Association, which is now circulating on the internet is reprinted below in the interests of transparency :
Dear Ms Baxter
RE:ESTO LAW LTD
In my earlier responses to your letters of 13 December 2011 and 11 January 2012, I explained that the Council of the Law Society of Scotland had agreed that my Vice-President Austin Lafferty and I should carry out a review into the concerns that you and other members raised with respect to Esto Law Ltd and the Society’s criminal legal aid negotiating team (CLANT). I also explained that I would respond more fully once that process had been completed.
We provided our final report to Council earlier today. I enclose a copy of this report for your information and we have made the report available on the Society’s website.
As you will see from the conclusions within our report, we have found no evidence– none whatsoever – to substantiate the suggestions that the solicitors involved in Esto misused their positions on the criminal legal aid negotiating team, withheld information or misled their fellow solicitors.
In particular, we have noted that the negotiations between CLANT and the Scottish Legal Aid Board were concluded before any suggestion was made by the individuals concerned to establish a new firm offering out of hours police station duty cover. We have concluded that there was neither a conflict of interest nor a potential conflict of interest for the Esto directors for the period on which they were members of CLANT.
In your letter of 13 December, you posed a number of specific questions which I will answer in the order they were posed.
1. We are aware that the Society’s Registrar’s team and the Professional Practice team were both approached formally by the directors of Esto for technical advice on the incorporation of the firm as an LLP. Such advice is routinely given by both teams to firms on a strictly confidential basis and all such information is bound by data protection laws. We believe the assistance and advice provided by these teams to the Esto directors was therefore entirely appropriate in the circumstances and consistent with the role of the Society in assisting members.
I, along with a number of members of the Society’s executive, including the Chief Executive and Director of Communications, were also given advanced notification by the directors of Esto to establish a new firm. This information, which included some detailsof the services the new business would offer, was again provided on a strictly confidential basis. It is common practice for office bearers and senior members of the Society’s staff to be provided with advance confidential information with respect to changes in firms, whether they be new business ventures or, has been seen more recently, mergers and takeovers. It is crucial that the Society is alive to upcoming changes in the profession and that member firms feel they can trust the Society with such confidential information. It is also worth emphasising that, whilst any member of staff can offer advice or guidance in such circumstances, those staff have no power to either approve or prevent such business changes. To even attempt to do so would be wrong in principle and stray beyond the powers of the Society. I am therefore comfortable that the way this advance and confidential information was handled by the Society was appropriate.
2. As we have concluded in our report, we have found no evidence that the Esto directors in any way misused their positions whilst members of the criminal legal aid negotiating team. The information on which they based their decision to establish a new firm was information already in the public domain and openly available to members.
3. Given my answer to the previous question, I do not believe this question is relevant.
4. I cannot agree with the premise of this question. There is no evidence to suggest that the individuals concerned used their positions on the criminal legal aid negotiating team for a commercial advantage. We have considered all the available evidence and have been reminded of the considerable commitment and professionalism with which CLANT members have acted. I believe they have acted with the utmost integrity and have worked with the sole intention of assisting and supporting their fellow solicitors.
5. The police station duty scheme requires registration by firms, rather than solicitors, to provide additional flexibility in the provision of advice.My understanding is that there is no requirement for referral of the case to the alternate duty, as with the court duty scheme. However, there is the requirement that any solicitor providing advice under the police scheme also be registered for duty purposes and that the delegation to another solicitor must be authorised by SLAB. The application forms for the new court duty plans have also been changed for 2012-13 to allow for registration of firms rather than individuals, though it is specified for the court scheme, unlike the police scheme, that advice from the alternate duty first be sought. We are not aware of any future changes proposed to the police duty scheme regarding delegation of responsibility.
6. Again, I cannot agree with the premise of this question. It is important to note that the CLANT had originally promoted a duty scheme that would have been operated by the Society. This was not taken forward by the Scottish Government and Scottish Legal Aid Board. As you will know, the original police station duty scheme as proposed by SLAB was met with stiff opposition from the CLANT who, at the time, described it as ‘unnecessary, unworkable and unacceptable’. Following open consultation with and agreement from the profession, the CLANT successfully negotiated a number of positive changes to the scheme which I believe were in the interests of all legal aid practitioners.
7. An application for Esto Law Ltd to be recognised as an incorporated practice was received on 18 November 2011. The required regulatory information to progress and complete that recognition process has not yet been finalised. Although the application was granted on 7 December 2011, the agents for the applicants were advised that the certificate of recognition of incorporation allowing the practice to commence would not be issued until a certificate of master policy insurance had been received. To date that certificate has not been received by the Society. Accordingly Esto Law Ltd has not been recognised by the Society as an incorporated practice and no certificate of recognition has been issued.
You also wrote to me on 11 January and asked a number of additional questions. Again, I will seek to answer these in the same order.
1. I would refer you to my earlier answer where I confirmed hat the Society’s Registrar’s team and the Professional Practice team were both approached formally by the directors of Esto for technical advice on the incorporation of the firm as an LLP. Such advice is always given on the strictly confidential basis and is bound by data protection laws. It would be wrong for me to provide you with the kind of information you have requested here.
2. The Society, whether the criminal legal aid negotiating team or staff, met with Scottish Legal Aid Board on the police station duty scheme on the following occasions:
• 21 December 2011, • 26 October 2011, • 3 August 2011, • 26 July 2011, • 15 June 2011, • 2 June 2011, • 19 May 2011, • 4 May 2011, • 20 April 2011, • 3 February 2011, • 17 January 2011, • 14 January 2011
It was not the practice at these meetings to take a formal record which is then approved by those who attended. My Vice-President and I did review the staff notes that were taken of these meetings but such notes are not taken with a view to publication. I am however happy to provide you with the details of what was discussed at these meetings with the agreed outcomes and actions if such information would be useful.
3. We do not believe that there have been any changes to the operation of the duty plans with respect to delegation of obligations to a third party. The duty obligation rests with the firm and can be delegated, subject to the individual solicitor also being registered for duty purposes and the delegation to another solicitor being authorised by SLAB (the same provision being found in the court duty scheme application). As mentioned at the faculty representatives’ meeting on 26 January, SLAB has further indicated that there are no significant changes to the scheme planned, at least until it is clear which recommendations from the Carloway Review will be taken forward into legislation.
4. I would refer you to my earlier answer to your first question.
5. The information ingathered by the CLANT during meetings with the Law Society of England and Wales, the Legal Services Commission and the Ministry of Justice has been incorporated into the in-house research being carried out by our legal aid and access to justice team. This research is likely to be completed by April and will be publicly available.
The paper will cover a range of topics including: the experience of legal aid contracting in the United States; quality contracting and Best Value Tendering proposals in England and Wales and elsewhere; the experience of tendering for public services more generally, through Compulsory Competitive Tendering and Best Value; general considerations for quality contracting and price bidding;current price and quality provision of legal aid; compliance with competition and procurement law; economic theory on auction structures and monopsonic markets; case studies of successful and unsuccessful tendering exercises; and a forecast of the likely impact on criminal defence work in Scotland, on practitioners and their clients. We aim to ensure that the criminal bar isprovided with the most accurate, comprehensive but yet accessible information on how contracting has operated elsewhere and how it may operate here.
In you letter of 11 January, you also made comments with respect to our legal aid convener Oliver Adair. We have considered the role of Mr Adair who was given some advanced notification of the decision by some members to establish Esto. However, as we have already explained, we have found no evidence of any wrongdoing on the part ofthe solicitors concerned.
Weare aware that Mr Adair advised Stuart Munro that there was no conflict of interest in him being a member of the CLANT. Given that we, through our review, have come to the same conclusion, we believe that the advice given by Mr Adair was entirely appropriate in thecircumstances.
Finally and with respect to the current structure for legal aid negotiations, we discussed during our recent meeting how the Society is currently considering alternative models although it will of course be a matter for Council to decide in terms of any changes to the existing committee arrangements. We will of course keep you and other faculties and bar associations fully aware of any changes in this regard.