Non Lawyers to offer legal advice - but will consumers be adequately protected ?
The bid to allow non lawyers, such as crooked Scottish accountants, to be able to take on business currently the domain of crooked Scottish lawyers, gathers pace, but the Justice 2 Committee have asked that there be assurances consumers will be adequately protected if such measures are implemented in the new LPLA Bill ...
However, it transpires that some of the non-lawyer professions, such as the insanely corrupt accountancy profession, run by the Institute of Chartered Accountants of Scotland, will be keeping self regulation for their crooked members while lawyers will have to operate under independent regulation, as planned by the LPLA Bill.
Confusing, isn't it ... so better stick with lawyers rather than the likes of intensely crooked Scottish accountants - where your business certainly won't be safe or have the shield of independent regulation and increased transparency when things go wrong.
Read on for the article, from The Scotsman,
Could non-solicitors offer legal advice?
A POWERFUL committee of MSPs has called for assurances that consumers will be adequately protected if non-lawyers are granted public funds to give legal advice and assistance. In its Stage 1 report on the Legal Profession and Legal Aid (Scotland) Bill, the Justice 2 Committee stopped short of calling for non-lawyers to be subject to the same proposed regulation system as solicitors or advocates.
But the MSPs have called for an "effective complaints system" and "effective and enforceable quality standards" to ensure consumers can have confidence in such services.
Currently, only solicitors or advocates can provide legal advice and assistance, but section 45 of the bill proposes that the Scottish Legal Aid Board (SLAB) could make payments to non-legally qualified individuals or bodies to provide advice in certain categories. It is expected advice would be offered on issues such as benefits, debt, housing or employment, and non-lawyers would be required to adhere to a code of practice to be drafted by SLAB.
There are widespread concerns in the legal profession that this could lead to a two-tier system, with the less well-off consumer unable to get advice from solicitors, and non-lawyers not required to deliver the same standards of service.
Philip Yelland, director of client relations at the Law Society of Scotland, says: "We certainly have had concerns about what is proposed in the legal assistance part of the bill. There is a wider issue here. If you go to a solicitor, you have a right to make a complaint.
"If your solicitor toddles off with your money, you have got the guarantee fund there as a possibility. If your solicitor really gets it badly wrong, or fouls up, you can make a claim on the solicitor's insurance and get compensation. Surely if this is going to work, these people should be subject to the same regulation. The profession is being subjected to this change, but there is no attempt to deal with this blank area."
Yelland also predicts the increased burden of regulation under the proposed Scottish Legal Complaints Commission (SLCC) - including complaints levies and an increase in the compensation limit for inadequate professional service up to £20,000 - may encourage solicitors to "opt out" of the regulatory system.
"If you are a sole practitioner, with very tight profit margins and staying a solicitor is going to mean your costs will rise because of regulation, then as a business proposition, you might look at 'how much business could I do without being a solicitor?' Now that is not scaremongering - that is going to be the reality for some people."
The Faculty of Advocates has also expressed concerns about section 45 of the bill. In its written evidence to the Justice 2 Committee, it states: "It may be thought surprising that the Scottish ministers should be promoting the giving of legal advice and assistance by unregulated and unqualified persons, who are not required to be members of any professional body, and who are not therefore subject to the regulatory disciplines and public interest obligations that apply to members of the legal profession."
The faculty also expresses concern that SLAB should be asked to determine whether someone was properly qualified to give legal advice, adding: "It is also essential that those who give legal advice should be independent. This is particularly so when the advice is concerned with public law when the client's interests may be opposed to those of the state."
While the Scottish Association of Law Centres does not object to the principle of non-lawyers offering advice and assistance, it argues that advisers "must be subject to the same robust quality assurance schemes as legal aid practitioners", with adequate professional indemnity insurance, a guarantee fund scheme, and a right of complaint to the new commission.
The Justice 2 Committee endorsed the general principles behind the bill, a piece of legislation that will effectively end the legal profession's self-regulation. However, the committee's report raises a number of concerns about the proposals to establish the new SLCC, including issues of funding and accountability.
It calls on the Scottish Executive to examine carefully how complaints will be categorised, for example, if any dispute arises over whether the complaint relates to inadequate professional service or conduct. The committee also argues that a complaints levy should only be paid by a lawyer if the complaint is upheld.
Committee convener David Davidson says: "It is vital that the arrangements for complaints-handling are independent and command the confidence of the public, complainants and the legal profession."
Yelland welcomes the committee's comments, which he says recognise many of the issues raised by the society, but he says it is still feared that the bill will not deliver a better system for the public or the profession.
"If it has been decided there should be an independent commission, then we can live with it if it is better than what we have got at present. That is the challenge. The problem is, looking at the bill as it stands, we don't think it will be better."
Yelland adds that the committee appeared unconvinced there was any hard evidence the bill's proposals will lead to solicitors withdrawing from less lucrative work, or areas of the law that tend to attract more complaints. But he says: "The reality is there have been solicitors over recent years withdrawing from civil legal aid because of the rate of pay, and the danger with this is that will simply accelerate."
The committee's report also calls for clarification from the Executive as to whether the bill's proposals for the SLCC are compatible with human rights law. Expert opinions sought by both the Law Society and Faculty of Advocates suggest it will fall foul of the European Convention on Human Rights.
In written evidence to the committee, opinion from senior counsel - Colin Campbell, QC - sought by the faculty, states: "The commission will be too much a creature of the Executive to satisfy the requirements of Article 6. The commissioners will not have security of tenure for a fixed and reasonable duration. The Scottish ministers will have more or less unfettered power to discharge a commission member.
The faculty also perceives there is a wider threat to the independence of the profession. "The faculty remains concerned that the setting up of a body which is indirectly accountable to the Executive is not compatible with the need for the independence of the legal profession," argues a spokesman.
"In addition, the replacement of the existing complaints handling system of the faculty, which is provided at no cost to the public by a public body which, as has been recognised, will involve significant costs falling upon practitioners and most likely on the taxpayer, has not been demonstrated to be in the public interest."
It is expected that the parliamentary debate on whether to accept the general principles of the bill will take place in early September 2006.
An Executive spokesman adds: "The Executive is grateful for the balanced consideration that the committee has given to the issues and for the committee's constructive comments. The Executive will carefully consider the report's recommendations ahead of Stages 1 and 2 of the parliamentary process. In the meantime, the Executive is encouraged by the committee's support for the general principles of the bill."