OFT's report on Which? super complaint draws more reaction

A little piece from the Scotsman on further reaction from the professions on the OFT's recommendations to open up legal services in Scotland.

The battle for hearts & minds is hotting up .....

Further reaction to the OFT's report on Which?'s law super-complaint

I WONDER if those who are backing the introduction of "alternative business structures" are being somewhat economical with the reasons for their support.

As far as I can see, the chief promoters within the profession are members of highly successful firms and Limited Liability Partnerships (LLPs) who, if the periodic legal reviews are anything to go by, are never slow to trumpet their success and the increase in their fee income. Their offices are designed to promote wealth and influence and have the latest technology. These lawyers appear to make good money and have the lifestyle to suit.

Why do they need more money for investment and what sort of investment do they require which they cannot fund from their already impressive performance?

I suspect the real reason to investigate alternative business structures is the bottom has fallen out of the market of a young lawyer being prepared to buy into an existing firm. The ability of an ageing partner to capitalise on the sale of their share in the business is vanishing. Ageing partners are looking for a wider pool of potential purchasers to buy their asset While I have no problem in anyone who owns a share in a business selling his asset, I think a little transparency in the debate would be refreshing.

Graeme McCormick
Conveyancing Direct

THE investigation into the competitive nature of the profession is an inevitable consequence of [Sir David] Clementi and consumer power.

It needs to be said, loud and clear, that the legal profession is a competitive one. That may seem unlikely to some clients, but many will recognise they are free to buy legal services from wherever they want. The number of people entering the profession has been growing and new lawyers compete with established ones.

It also needs to be said that this competitiveness has to be improved and extended. If there is a perception among the public that lawyers "have it sewn up," that has to be dispelled. The Law Society has to recognise this and enable solicitors to complete with lawyers from elsewhere and to compete with non-lawyers in providing services. The mantra of "access to justice," on which the society has depended for years, is an insubstantial crutch.

We should not be rushed into adopting structures which strike at the core of the legal profession: there must not be a wholesale throwing-out of professional standards. Clients go to solicitors not just because they want competent service. They want independence, good professional standards, and they want confidentiality. Critics of the Law Society have to recognise that it has done a good job in sustaining these and the society has to see these as its core role.

There are plenty of structures available to open up law firms to outside capital and involvement. These have to respond to the need to protect the core values of independence and so on. It is right that the Law Society is having a conference on the issues - pity it has to be so long away - and it has to lead, immediately, to business - and client - oriented proposals.

John Elliot
chairman, Lindsays

Scottish solicitors should accept the need for reform & deregulation of markets

The battle to implement long needed reforms to Scotland's legal system and access to legal services now seems to have four sides to the debate.

1. The Law Society of Scotland, are as determined as ever to maintain a closed shop of exclusivity of access to legal services via a solicitor or advocate. Despite public protestations of 'welcoming in the changes', senior officials at the Law Society have mounted a behind the scenes campaign against any talk of reform of the current business model, forcing the public to go through a lawyer or advocate to get access to the Courts or use legal services.

2. The Cabinet Secretary for Justice, Kenny MacAskill seems to want to implement a half way Scottish solution of his own, neither completely deregulating the legal services market or maintaining the present monopoly'

3. Various legal firms are reported to have broken with the Law Society of Scotland's policy of maintaining the monopoly by 'publicly' welcoming in the changes,

4 .Finally, there are the consumer organisations, campaigners, critics & clients who of course, wish for full deregulation of the legal services market, and further reductions in power & influence to the Law Society of Scotland.

Let us not forget the Judiciary are hovering in the background on this one too, some ex-judges seemingly ready to swoop down and carry off anyone who may suggest the teeniest weensiest reform of not only access to legal services, but also to the operation of the judiciary themselves ...

The changes will benefit us all, as today's Scotsman reports

Lawyers urged to accept the need for reform

MARGARET LANG AND TONY WILLIAMS

THE Scottish legal system faces significant overhaul as a result of last week's report delivered by the Office of Fair Trading (OFT) in response to a complaint lodged by the consumer group Which?.

The "super-complaint", as defined in the 2002 Enterprise Act, argued that the current structure of the profession has hindered market innovation, restricted consumer choice and may have led to higher prices.

The OFT's report has recommended a significant overhaul of the Scottish legal profession, both lifting restrictions on the way lawyers operate and opening up the profession in Scotland to the levels of competition envisaged by the English Legal Services Bill.

The Scottish Executive has agreed to respond to the OFT report within three months, and it is expected that the resulting legislation will follow the English model, revolutionising the delivery of legal services in Scotland and dismantling the closed arrangements between solicitors and advocates. But there is no recommendation to remove the regulatory and representative roles of the Law Society of Scotland and so have an independent regulator, as is the case in England.

In England, the Legal Services Bill, which heralds potentially major reforms of the legal profession in England and Wales, will permit solicitors and barristers to practise together, lawyers to practise in one firm with other professionals, and law firms to be owned wholly or partly by third parties and able to raise external capital, including by flotation on the stock market.

Effectively - subject to detailed regulations as to qualifications, protecting client money, avoiding conflicts of interest and ensuring minimum levels of professional indemnity insurance - lawyers will be able to practise in whatever structure they want, and where they feel there will be consumer demand. Legal services may also be provided by major corporations using their existing brands, and probably a very significant investment in technology. The Co-op and the AA are already providing limited legal services and have made clear their intention to expand when the law permits.

The new law will also take regulation and complaints relating to the lawyers outside of their own hands and into the control of a regulator majority run by non-lawyers, with a view to protecting the consumer.

It is important to appreciate that these reforms were not proposed by lawyers. Indeed, the legal profession, not renowned for its forwarding thinking, initially opposed this type of reform. The reforms arose from a 2001 report by the Competition Commission, which found that the restrictions on the operation of lawyers in England were anticompetitive. This was followed by a report by a committee chaired by Sir David Clementi, which recommended a wide range of reforms. The Government, in its white paper, endorsed these reforms and went even further than Clementi. The current bill will come into force in stages, with many of the more controversial points not becoming law until 2011.

There has been a high level of interest in new business models for providing legal services. Major companies have been considering if this is a market they should enter, and private equity firms are considering financing new retail-focused offerings and also taking minority stakes in existing firms. Law firms are considering the advantages and disadvantages of raising outside capital. It is widely anticipated that the fragmented English legal profession will start to consolidate significantly over the next five years.

This is not just an English trend. In Australia, reforms are already in place, and in May the first Australian law firm floated on the stock exchange. Spain has recently brought into force legislation permitting 25 per cent ownership of professional firms. Despite the opposition or indifference of many local bars, many governments think the regulation and structure of the legal profession needs to be dragged from the 19th century straight into the 21st century.

So where does all this leave the Scottish legal profession? Although England and Scotland have different legal systems, there have been significant cross-border movements in recent years. Many major Scottish firms - including Dundas & Wilson, McGrigors and Dickson Minto - have significant London offices, and English-based firms - such as DLA Piper, Pinsent Masons and CMS Cameron McKenna - have offices in Scotland. In addition, many lawyers have been lured to London by the quality of work and high incomes available there. Senior partners in the largest London-based international firms now earn close to £2 million. If English law firms, on top of significant salaries, are able to offer long-term benefits - including share options - this may make them even more attractive to lawyers working in Scottish firms, thereby creating an ever greater retention problem in a market that is already crying out for talent.

Until now, the Scottish legal profession, or at least the leadership of its professional bodies, appears to have been opposed to an English type reform. But, in so doing, the profession risks being seen as reactionary and self-serving. In the current age of the consumer, it is questionable whether the profession's interests are best served by regulating itself in the manner of an ancient guild and dictating in what business form its members should operate. Given that the English reforms started with a Competition Commission report, the Scottish profession may be well advised to engage positively and proactively in debate rather than to suggest that reform "is the end of civilisation as we know it".

The political and business climate in Scotland is changing. Business birth rate is at an historic low, with the latest 2005 figures showing new VAT registrations at 28 per 10,000 adults, compared with 37 in England, as Scotland's business leaders are analysing the implications of an independent Scotland structured from a fiscal perspective.

While the governing bodies of the Scottish legal profession may see Scotland as "different", the commercial competitors who will enter the market with consumer-led services and attractive recruitment packages will see Scotland as a market from which to take both clients and talent.

The legal sector now has an opportunity to take the lead and help build a successful economy. Will it take that opportunity or become, like so many of the other great old Scottish industries, a thing of the past?

• Margaret Lang is chief executive of Intelligent Office UK, which provides managed offices services specifically focused on the UK legal market, and Tony Williams is the founder and principal of Jomati Consultants, a UK-based international management consultancy specialising in the legal profession.

Further reaction to the Office of Fair Trading's report on 'super-complaint'

COMMON sense has prevailed. The OFT believes that current restraints on lawyers in Scotland are unnecessarily restrictive, and I agree with them. Neither the OFT nor Which? is saying that solicitors and advocates should go into business together, or indeed that lawyers and non-lawyers should do so, or that non-lawyers should own legal businesses, and nor am I.

Rather, we are all saying that in each case, if people want to they should be allowed to. The market for legal services should decide where new business structures work better and where they do not. It is all about improving service quality and delivering value. The businesses that best satisfy tomorrow's customer demands will flourish and they should be facilitated to do so.

Interestingly, the OFT has emphasised that regulatory changes should not just superimpose an English solution on Scotland. Rather, it recognises the different scale and demographic of the Scottish market and that it should probably be regulated differently.

The inference is clear that different tiers of regulation, as is being promulgated in England, may well not work best for Scotland. I agree with this. I support regulation of legal services but always in a way that is appropriate. Regulators are facilitators to promote service delivery based upon quality, accessibility and value. They should not become barriers, particularly if on the grounds of jurisdiction not market.

Alan Campbell, Managing Partner, Dundas & Wilson CS LLP

THE most significant change and resultant opportunity for Scotland is the enticing prospect of "alternative business structures" and the injection of external investment into the law firms.

All firms should be allowed to seek external funding and investment or take a stake in mergers and acquisitions, provided that proper safeguards are in place. In today's global market place, law firms should be able to raise money from other sources to build strong, independent and diverse businesses. The Legal Services Bill in England will allow this south of the Border but, unfortunately, the Law Society of Scotland appears to be less than enthusiastic.

Allowing external investment would give Scottish firms the opportunity for effective expansion whilst maintaining professional integrity and practice. I for one would welcome such a change in Scotland.

Malcolm McPherson, Joint Senior Partner, HBJ Gateley Wareing LLP

WE HAVE put a detailed proposal to the Law Society of Scotland for an alternative business structure and we have sent a copy to the cabinet secretary for justice. We are currently having discussions with the Law Society of Scotland with regard to that proposal.

Our aims are very specific. We are not seeking reform that allows third-party control of Scottish legal firms or even external investment in Scottish legal firms.

Turcan Connell is a multi-disciplinary practice with multitalented professionals, and we are seeking a solution that allows non-solicitors to have active participation in the business to which they are so strongly committed. The solution that we propose should also benefit smaller, progressive law firms throughout Scotland. It will allow them to combine with other professionals to provide a joined-up service to local communities.

Douglas Connell, Joint Senior Partner, Turcan Connell

OFT put Executive on the spot by recommending lifting of restrictions in Scottish legal services

The Office of Fair Trading has predictably come out in favour of the Which? 'super complaint' and is recommending the opening up of legal services markets in Scotland.

This will ultimately benefit both the legal profession and the public, although from today's media exposure so far, which sees the Law Society of Scotland apparently caught off guard on this, the policy of the profession's regulator is that of maintaining resistance to the changes recommended by the OFT.

Perhaps the 'knights of the square table' at Drumsheugh Gardens were hoping their campaign against the Which? 'super complaint' had worked, notwithstanding the apparent occasional threat to the Scottish Executive that if such changes were implemented .. all 'friendly' deals with the Executive would be off, including the Legal Aid case boycott affair.

The view of one happy campaigner is expressed HERE after shredding the Cabinet Secretary for Justice yesterday on similar issues HERE

Over to the OFT for the details, and reporting on the issue from the Herald Newspaper.

OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market

110/07 31 July 2007

The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.

In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.

Download full response to the super-complaint (pdf 139 kb).

Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.

Sean Williams, OFT Executive Director of Markets and Projects, said:

'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'

Kyla Brand, OFT Representative in Scotland, said:

'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'

NOTES

1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'

2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.

OFT backs consumer watchdog’s call for reform of Scottish legal services
LUCY ADAMS, Chief Reporter July 31 2007

An investigation into concerns that Scots are not getting sufficient access to affordable justice and legal representation has concluded that the current regulatory regime is "restrictive" and harmful to consumers.

The Office of Fair Trading (OFT) has upheld calls by Which?, the consumer watchdog, for a reform of the legal services market in Scotland, The Herald can reveal.

A "super complaint" lodged with the OFT in May by Which? recommended it address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

The OFT has upheld that complaint and now the Scottish Executive has agreed to prepare a formal response within 90 days. However, any reform of the legal services market in Scotland could threaten the Scottish legal profession's closely guarded right to self-regulation.

Under reforms planned for the sector in England, banks and supermarkets will soon be able to join forces with law firms to provide legal services.

However, Which? believes north of the border there has been little appetite for exploring, let alone implementing, alternative ways of doing business from the legal profession and the executive.

Following a review by Sir David Clementi in England, organisations such as Tesco and the RAC should, from next year, be able to offer legal services alongside sandwiches or roadside assistance.

The changes, supported by the OFT, are intended to make the legal profession more responsive to consumer needs.

In Scotland activities such as conveyancing, litigation and obtaining confirmation in executries must be undertaken by solicitors. Other services such as will-writing can be done by people other than solicitors, but in practice that happens infrequently.

Following moves to liberalise the regulations on legal firms south of the border, HBOS, which has two million customers, launched a new service offering "everyday legal products" to customers at what it claims will be considerably lower fees than those offered by High Street solicitors. The service is being rolled out through the bank's Halifax arm in England and Wales. However, Joel Ripley, head of Halifax Legal Solutions, said last year there are plans to extend it to Scotland.

The Halifax service, which will include discounted conveyancing, will preparation and a 24-hour legal helpline, is also set to provide access to a website where customers can prepare their own documents, including tenancy agreements and letters of complaints about faulty goods. These will be reviewed by qualified lawyers.

Customers will pay an annual membership fee of £89 which will give them free access to the helpline.

Sean Williams, an executive director of the OFT, said: "I hope the Scottish Executive can work with the profession to remove restrictions that in our view are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

The OFT is now looking to the Scottish Executive to outline its approach to removing what it sees as "restrictions" and the Scottish Executive has agreed to respond formally within 90 days.

A spokeswoman for Which said: "We are delighted by the decision of the OFT."

OFT put Executive on the spot by recommending lifting of restrictions in Scottish legal services

The Office of Fair Trading has predictably come out in favour of the Which? 'super complaint' and is recommending the opening up of legal services markets in Scotland.

This will ultimately benefit both the legal profession and the public, although from today's media exposure so far, which sees the Law Society of Scotland apparently caught off guard on this, the policy of the profession's regulator is that of maintaining resistance to the changes recommended by the OFT.

Perhaps the 'knights of the square table' at Drumsheugh Gardens were hoping their campaign against the Which? 'super complaint' had worked, notwithstanding the apparent occasional threat to the Scottish Executive that if such changes were implemented .. all 'friendly' deals with the Executive would be off, including the Legal Aid case boycott affair.

The view of one happy campaigner is expressed HERE after shredding the Cabinet Secretary for Justice yesterday on similar issues HERE

Over to the OFT for the details, and reporting on the issue from the Herald Newspaper.

OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market

110/07 31 July 2007

The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.

In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.

Download full response to the super-complaint (pdf 139 kb).

Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.

Sean Williams, OFT Executive Director of Markets and Projects, said:

'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'

Kyla Brand, OFT Representative in Scotland, said:

'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'

NOTES

1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'

2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.

OFT backs consumer watchdog’s call for reform of Scottish legal services
LUCY ADAMS, Chief Reporter July 31 2007

An investigation into concerns that Scots are not getting sufficient access to affordable justice and legal representation has concluded that the current regulatory regime is "restrictive" and harmful to consumers.

The Office of Fair Trading (OFT) has upheld calls by Which?, the consumer watchdog, for a reform of the legal services market in Scotland, The Herald can reveal.

A "super complaint" lodged with the OFT in May by Which? recommended it address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

The OFT has upheld that complaint and now the Scottish Executive has agreed to prepare a formal response within 90 days. However, any reform of the legal services market in Scotland could threaten the Scottish legal profession's closely guarded right to self-regulation.

Under reforms planned for the sector in England, banks and supermarkets will soon be able to join forces with law firms to provide legal services.

However, Which? believes north of the border there has been little appetite for exploring, let alone implementing, alternative ways of doing business from the legal profession and the executive.

Following a review by Sir David Clementi in England, organisations such as Tesco and the RAC should, from next year, be able to offer legal services alongside sandwiches or roadside assistance.

The changes, supported by the OFT, are intended to make the legal profession more responsive to consumer needs.

In Scotland activities such as conveyancing, litigation and obtaining confirmation in executries must be undertaken by solicitors. Other services such as will-writing can be done by people other than solicitors, but in practice that happens infrequently.

Following moves to liberalise the regulations on legal firms south of the border, HBOS, which has two million customers, launched a new service offering "everyday legal products" to customers at what it claims will be considerably lower fees than those offered by High Street solicitors. The service is being rolled out through the bank's Halifax arm in England and Wales. However, Joel Ripley, head of Halifax Legal Solutions, said last year there are plans to extend it to Scotland.

The Halifax service, which will include discounted conveyancing, will preparation and a 24-hour legal helpline, is also set to provide access to a website where customers can prepare their own documents, including tenancy agreements and letters of complaints about faulty goods. These will be reviewed by qualified lawyers.

Customers will pay an annual membership fee of £89 which will give them free access to the helpline.

Sean Williams, an executive director of the OFT, said: "I hope the Scottish Executive can work with the profession to remove restrictions that in our view are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

The OFT is now looking to the Scottish Executive to outline its approach to removing what it sees as "restrictions" and the Scottish Executive has agreed to respond formally within 90 days.

A spokeswoman for Which said: "We are delighted by the decision of the OFT."

Which? supercomplaint comes in for criticism but little doubt remains on need for reform

More From A Diary of Injustice in Scotland where a well known campaigner draws some valid points from the debate on widening access to legal services in Scotland, proving the profession's public stance on this issue is far from conducive to good client relations ...

Scots Law Chiefs turn hostile on consumer organisation in propaganda war against deregulation of legal services markets.

The Scottish legal profession's propaganda war against deregulating the Scottish legal services market heated up today with salvoes fired from both the Law Society of Scotland and the Faculty of Advocates against the Which "super complaint" to the OFT calling for an inquiry in to access to legal services in Scotland.

The legal profession are of course, unhappy that 'Which" have made a complaint to the OFT on the closed market of legal services in Scotland, where members of the public must use the services of a solicitor for legal services.

Predictably, the Law Society of Scotland and it's allies mounted a quick publicity war against any thought the public may harbour over wishing wider access to legal services in Scotland by means of other than using solicitors ... and we have seen many articles since, written by both sides in the debate.

Roy Martin QC, the Dean of the Faculty of Advocates begin the latest round of counter claims on implementing the Clementi reforms in Scotland, with a story in the Scotsman newspaper today claiming "ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? super complaint to the OFT"

The Dean of the Faculty's claim, is of course, nonsense.

The Dean should know all about access to justice of course, as his colleagues in the Faculty and the Law Society of Scotland have been controlling & restricting public access to legal services since time & memorial.

Why ? because if you want to get to court, or if you need to use legal services, you have to go through a solicitor or an advocate, and pay them for the services you use. There is no alternative in the current world of legal services in Scotland, and it doesn't take a rocket scientist to understand from that simple explanation that the legal profession will obviously fight any changes to it's monopolistic business model, because that's the way they make their money from you.

For example. what if you have a case against the legal profession itself or a case that may impact on legislation the legal profession or judiciary do not want changed ? - chances are you get nowhere, and your injustice will continue for years, or perhaps never be resolved - simply because it's not in the interests of the legal profession to give you access to legal services, or access to justice.

Try getting a lawyer to sue a lawyer - or try making a complaint against a member of the legal profession or judiciary, then you will see just who controls access to Justice, certainly not the public, and far too many politicians, from ALL parties, have stood by for too long, knowing this full well.

The legal profession have certainly had some interesting allies in their quest to keep the legal services market for themselves, as I revealed in an earlier article Lord Advocate - Lord Hardie, actually recommended repealing Sections 25-29 of the Law Reform (Misc Provisions) Act 1990, which if implemented at the time, would have broken the lawyers monopoly on legal services and opened up access to justice for everyone in Scotland.

If anyone wants to read a few experiences of people when it comes to access to justice, they can look to our own Scottish Parliament's web site at :
Justice 1 Committee Regulation of the Legal Profession Inquiry 2002 & Justice 2 Commitee LPLA Bill Inquiry 2006 - which led to the passing of the Legal Profession & Legal Aid (Scotland) Act 2007

The Scottish Consumer Council's excellent report on how access to justice stacks up against the legal profession & it's current monopoly on legal services can be read here : Scottish Consumer Council Report - Complaints Against Solicitors

Douglas Mill, the infamous Chief Executive of the Law Society of Scotland, couldn't bare to be left out of the publicity war today either, and launched into the Which super complaint issue by claiming "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the super complaint."

Perhaps it might have been a good idea to ask Douglas Mill, the Law Society of Scotland Chief Executive why he felt solicitors human rights were in breach simply because they were going to lose the right to handle complaints against their own colleagues - the reason Mr Mill publicly threatened the Scottish Executive & Parliament last year with Court action if the LPLA Bill was passed - now there's a real access to justice issue !

Here's Douglas Mill in an earlier article, ranting on in a somewhat suicidal manner about critics of his beloved membership and stewardship of the Law Society of Scotland for all these years .. bringing in 5000 plus complaints a year against some 9,500 solicitors ... well, hasn't he done well now !

Isn't it a pity it's taking an English based organisation to protect the public's interests in Scotland and open up the debate on access to legal services ? but it does show the power of the Scottish legal profession to keep its monopolistic business market intact and thwart change as much as possible to-date.

However, perhaps the intervention by the Which consumer organisation raises the question, where are the SNP led Scottish Executive in this affair ?

Why is our own Scottish Government not doing more to open the access to legal services market in Scotland with a full implementation of the Clementi reforms which have been quite successful in England & Wales .. and why has no policy yet been announced on tackling the issues of injustice caused by the legal profession over the years , the SNP, for so long in opposition and now in power at the Executive, knows full well of but stands by watching - as a witness to abuse.

Is this a case of the legal profession intervening again with the Scottish Executive and interfering in areas of reforms for the public interest, just to retain their money making capabilities via a monopolistic legal services market ?

Is it not time to do something good for the public interest regarding the legal services market in Scotland, Mr Salmond ? rather than allow it to be run & maintained by the legal profession itself to make money and control the public's access to justice ?

Following article from the Scotsman newspaper :

http://thescotsman.scotsman.com/index.cfm?id=1144372007

Does Which? know what it is asking?
JENNIFER VEITCH

ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? supercomplaint to the OFT, the Faculty of Advocates has warned.

Which?, the UK's largest consumer body, wants the OFT to recommend the removal of current restrictions, including those on non-legal ownership of firms and access to advocates, arguing that existing business structures and working practices restrict consumer choice and may be inflating prices.

Which? also wants an independent Scottish Legal Services Board to be established, to either oversee regulation of solicitors and advocates, or take regulation out of the hands of the Faculty of Advocates and the Law Society altogether. In its official response the faculty argues that Which? failed to show the legal services market in Scotland is "significantly harming" consumers. Its response warns the consumer body has not grasped that introducing so-called Tesco law would undermine the future of smaller firms throughout Scotland.

"Externally owned practices would be likely to be interested principally in the relatively straightforward transaction which can be 'commoditised'," the response states. "They would be unlikely to be interested in intractable or difficult cases, which professional firms currently handle. They would, in particular, be unlikely to be interested in such matters in relatively remote or sparsely populated parts of the country."

In an interview with The Scotsman, Roy Martin QC, the dean of the faculty, says the supercomplaint appeared to be trying to transpose English reforms proposed by the Legal Services Bill, possibly out of a desire for a uniform regulatory system across the UK.

"The supercomplaint openly promotes the creation of a Scottish Legal Services Board, which as far as can be seen would be identical to the one being created south of the Border with the same regulatory powers and functions," he says.

"In essence our position is that it is not appropriate, because of a number of factors, simply to translate the arrangements which are passing through Parliament in Westminster directly into Scotland. It may be said that the purpose of the supercomplaint is no more than to try to create a uniform regulatory regime throughout the UK for no reason other than regulatory consistency.

"Given the distinctive characteristics of Scotland and the Scottish legal profession, the desire for regulatory consistency would certainly not be a justification for the changes which they suggest."

Martin says that firms of solicitors, and the advocates that they instruct on behalf of their clients, are already providing access to justice "as efficiently as they can", considering Scotland's geography.

"It is interesting that the supercomplaint almost entirely focuses on transactional type business, such as conveyancing, rather than acknowledging that many of the services provided by the legal profession throughout Scotland are related to a whole range of needs, such as criminal court representation, civil court representation, family disputes, and custody of children," he says. "The fact that these things are done differently in Scotland and in the interests of justice ought to be done differently is a reason why we should not simply copy the regulatory arrangements which may be found to be appropriate in England and Wales."

The Faculty has also questioned whether the supercomplaint - made under the terms of the Enterprise Act 2002 - should be calling for changes to regulation that would require primary legislation to be passed by the Scottish Parliament. Its response also suggests that any action made by the OFT as a result of the supercomplaint "may not be lawful", as Which? has not fulfilled the requirements set out by section 11 of the act.

Martin adds that changes to the working practices of advocates would need to be considered by the Lord President, who has a role in regulating the public office of advocates.

In its response to the supercomplaint, the Law Society has also called for no action to be taken by the OFT. However, its position is complicated by the fact that some larger firms support the introduction of alternative business structures - if only to ensure they can have a level playing field with their English counterparts.

"The society is keenly aware that there are a number of interests which must be carefully balanced, including access to justice, competition in the legal services market and consumer protection," says the Law Society's chief executive, Douglas Mill. "There are a number of different proposals and business models currently under discussion, and the society is actively raising the debate to ensure that whatever changes are made to legislation, these competing interests are taken into account. The society is consulting with the solicitors' profession to gain their views of the Bill before the Westminster Parliament which will apply to England and Wales. It held a successful conference in London with its members based there to spark the debate and gain important feedback."

A major conference on alternative business structures is planned in Edinburgh on 28 September, and the society says it is also keen to see work by the Executive to build on the findings of last year's Research Working Group report, which recommended there should be no intervention in the market.

Mill adds: "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the supercomplaint."

If the OFT does decide to take action, however, then the society has called for research to be commissioned, to identify how the legal services market operates in Scotland, bearing in mind "the impact upon consumers" of the proposals set out in the super-complaint. A spokesman for the OFT says it is required to respond to the supercomplaint from Which? by 31 July, but he adds that he is unable to comment further.

Law Society Chief Douglas Mill accused of "scaremongering" over proposed reforms to legal services in Scotland

It will be a cold day in hell when 'Clementi style' reforms to open up the legal services market are implemented in Scotland, if Douglas Mill has his wicked way with the current SNP controlled Scottish Executive who may lack the will of tackling & reforming the legal system & judiciary as was displayed by the Labour controlled Executive.

The SNP after attaing power in the May 2007 Holyrood Elections, then seemed to dither and change their minds slightly on implementing reforms to the legal services market here.

Today, both Scotland's major newspapers carry alternative stories on the impending implementation of at least some kind of reform to the way Scotland's solicitors handle their business, the Scotsman as ever opting for the legal profession's point of view, this time against the Which? "supercomplaint" made to the OFT over an alleged monopoly" on legal services in Scotland, while the Herald newspaper treads a more neutral & informative path, backed up with a rather strong view from the head of the Law Society of England & Wales, who believes Douglas Mill is trying to scare us all over Clementi - or as some call it - "Tesco Law".

Well, there's nothing to be scared about - that is if the reforms are handled properly .. but with Douglas Mill's finger on the button over at the Law Society's Headquarters at Drumsheugh Gardens, is it possible at all we will get a balanced approach to the issue of opening up markets to legal services in Scotland or are we to be plunged yet again into a solicitor v client attitude, which many within the profession now believe has contributed to the all time low public perception of Scotland's solicitors, ranking them among the likes of rapists & muggers.

Acceptance of these reforms may bring many advantages to the legal profession in Scotland rather than adopting a negative stance such as is being trumpted by the Dean of Faculty & Douglas Mill in the Scotsman version of this story ... ultimately, shouldn't it be the profession which decides the future of itself, rather than a couple of egos ?

You can read more about the Which? "supercomplaint" which has Douglas Mill & the Dean in a spin over in today's Scotsman here here and the article written by giving Messrs. Mill & Martin's well known views against opening the legal markets, in the Scotsman here

Law Society chief accused of scaremongering over reforms

IAN FRASER July 23 2007 (The Herald)

The chief executive of the Law Society of England and Wales has attacked Scotland's lawyers for being "unjustifiably negative" in their stance on the Clementi reforms currently passing through Parliament, and accused his Scottish counterpart of "scaremongering".

The Law Society of Scotland is against the Clementi reforms, claiming they would enable criminal gangs to own law firms and use them as money-laundering vehicles.

But in an interview with The Herald, Des Hudson, who became the Law Society's chief executive in September 2006, said the proposed reforms would include a number of specific safeguards to protect the integrity of the profession, including a "fit to own" test to bar the entry of criminal elements.

Hudson said: "There are plenty of comprehensive provisions within the Legal Services Bill to control against that (law firms coming under the ownership of criminals). You can have statutory provisions on the fitness and suitability of anyone seeking to own a firm, such as you already have with newspapers I'm afraid that I find the arguments of the Law Society of Scotland unpersuasive."

Asked if he felt that Law Society of Scotland chief executive Douglas Mill was "scaremongering" by whipping up fears that law firms would become vehicles for underworld gangs, Hudson replied: "Yes".

But he added: "I'm sure that Douglas Mill is acting in accordance with the policy of the Law Society of Scotland We respect their right to make up their own minds about this."

The Legal Services Bill, expected to be enacted this December, will usher in a radical deregulation of the legal profession, permitting solicitors' firms in England and Wales to go into business with other professionals such as barristers and accountants, to have external shareholders and to float on the stock market. Due to take effect in 2010, the reforms have been welcomed in England and Wales, not least because they will enable the partners in law firms to finance expansion.

In Scotland, however, the reforms look unlikely to see the light of day, partly because of opposition from the Law Society of Scotland and a lack of appetite at the Scottish Executive.

The Edinburgh-based lawyers' professional body's suggestion that style reforms would permit law firms to come under the ownership of criminal gangs has caused the latest spat between the two professional bodies for solicitors north and south of the border.

English counterpart says arguments against Clementi proposals are ‘unpersuasive’

In an interview published in a law journal last week, Mill warned: "There hasn't been any consideration given to how these people are regulated or whether they are even regulatable. (It) could end up like the Liberian flag on your merchant shipping: We don't do health and safety here'."

He later told The Herald: "The Law Society of England & Wales is no longer a regulator and now concentrates on representing the interests of its members. We are a regulator and our fear is that in the drive to open up the legal services market, there has been scant regard given to the regulatory aspect.

"We are not opposed to change but, as the Scottish profession's regulatory body, the Society must take into account the wider public interest and we are obliged to ensure that any changes to the way legal firms operate continue to provide the same protections that members of the public currently have.

"We have been part of the debate on alternative business structures and the proposals put forward by Sir David Clementi since its earliest days. There are a number of different proposals and business models currently under discussion and we want to ensure that whatever changes are made to legislation, these competing interests are taken into account.

"The Society is also consulting with the profession to gain solicitors' views on the Legal Services Bill and is actively encouraging debate among our members."

However, some Scottish lawyers belief failure to embrace Clementi will lead to a brain drain' south. One senior Scottish lawyer said that, if such a mass migration did happen, it would "effectively bankrupt the Law Society of Scotland", as the professional body is dependent on the subscriptions from large corporate law firms and the thousands of lawyers they employ for a significant portion of its revenue.

Another fear expressed by Mill is that "Tesco Law" will decimate smaller solicitors' firms in high streets across Scotland, risking reduced access to justice.

Indeed commercial enterprises are already gearing up to capitalise on Clementi by offering commoditised legal services such as will-writing and conveyancing over the internet at significant discounts to the traditional high street law firms.

Hudson, a former chief executive of ICAS and SMG Publishing, said: "Tesco and the Co-op are already providing that sort of service. They've shown they have no need for either Clementi or McClementi to do that. I suspect this means the border is going to be porous irrespective of the protectiveness of the Law Society of Scotland's stance on that."

Alistair Morris, chief executive of Fife-based law firm Pagan Osbourne, said the commoditisation of certain areas of the law is already happening and he urged the Scottish Executive to introduce Clementi reforms, to rid Scots' law of its "anachronistic culture".

The Legal Services Bill is already having an impact on the Law Society of England and Wales even before it has entered the statute list. In anticipation, it has divided itself into three separate bodies. The Leamington Spa-based Legal Complaints Service handles complaints against solicitors, a body whose role is expected to be assumed by the new Statutory Office of Legal Complaints after 2010.

The Solicitors' Regulation Authority has taken over responsibility for regulating, setting standards and disciplining solicitors. And the Law Society proper has now shrunk to being the representative body for solicitors - effectively a trade union rather than a regulator.

In May 2007, the consumers' organisation Which? asked the Office of Fair Trading to investigate the Scottish legal profession's restrictions on business structures and access.

In its complaint, Which? said: "We are of the view that, subject to the necessary safeguards being established, a similar regulatory arrangement can be devised for Scotland to allow for non-lawyer entry to the Scottish legal services market.

"We are of the opinion that third-party involvement in this market is central to ensuring that the competitiveness of the market is maintained in the long term."

The OFT says it expects to issue a response within the next 10 days.