Sunday, July 15, 2007

Scottish Legal Services Ombudsman attacks Law Society for poor regulation

More From A Diary of Injustice in Scotland

Legal Ombudsman critisises legal profession for persistent failure to deal with complaints as clients call for independent review

The final report from the outgoing Scottish Legal Services Ombudsman, Jane Irvine, informs the legal profession they must take action before responsibility for complaints monitoring passes to the new Legal Services Complaints Commission, on issues such as using the question of the legitimacy of using different tests - ie criminal and legal - for different types of complaint where moving towards a civil model, with earlier recognition that practice and conduct must be improved is preferred.

Have the legal profession ever listened to the SLSO in the past ? Well, not much , and many or most of the SLSO's recommendations over the years have been thrown out or dismissed by the Law Society of Scotland as being not applicable or 'incompetent in terms of law (referring to the rather prejudiced laws which have allowed the Law Society to self regulate the legal profession into oblivion & see an annual complaints rate of 5000 plus a year against less than 10,000 lawyers).

In short, the Law Society of Scotland have known best what's good for itself and the legal profession - so it hasn't needed anyone to tell it otherwise. A fine demonstration indeed of a self regulator used to do as it pleases without the need for accountability to anyone.

Examining cases of the past, the Law Society have even went back on implementing many of the Ombudsman's previous recommendations they said they would implement, and in some cases, actually sought and gained changes to at least one previous Ombudsman's reports against the way investigations were handled, in the most highly prejudiced situations where at Complaints hearings before Committees, clients who filed complaints were denied representation while the lawyers complained against had senior Law Society Council members ordering Complaints Committees to find their rather crooked solicitor colleagues not guilty ... and of course, Complaints Committees did as they were told, despite the presence of even lay members who were of no use for the public interest...

If only perhaps the Legal Services Ombudsman had been given strong powers of oversight & enforcement in the Law Reform (Misc Provisions) Act 1990 - the Act which brought the SLSO's office into being, rather than only have been allowed to make non binding recommendations, then perhaps more would have been done and the Law Society of Scotland's self regulation of complaints over the years wouldn't have generated the lowest standards possible for Scotland's legal profession, which has seen an annual rate of some 5000 plus complaints against it's less than 10,000 solicitors for more than a decade now.

However, it is heartening to see that the previous Legal Services Ombudsman, Linda Costello Baker, and now Jane Irvine have taken more of a robust approach to criticising the legal profession for it's regulatory woes and insidiously corrupt treatment of client complains, rather than play along with the Law Society which the likes of Garry S Watson, the Legal Services Ombudsman of the 1990's, who failed the Scottish public miserably as the official charged with oversight of how the Law Society regulated complaints against it's members.

Indeed, Mr Watson was so enamored with the Law Society of Scotland, he regularly wrote reports praising self regulation of the legal profession and said there could be no other model for the way lawyers regulated complaints against lawyers ! .. good thing Mr Watson is no longer in office then .. but he did migrate his services to the equally corrupt self regulatory world of Scottish accountants, having a position on Complaints Committees of the Institute of Chartered Accountants of Scotland and also ending up as the first (temporary) Standards Adviser to the Scottish Parliament - where as we all know, corruption in addressing the behaviour of msps and constituents complaints has been about as bad as the way the Law Society regulates solicitors.

Perhaps many of the cases which the Legal Services Ombudsman was not able to have returned to the Law Society or be properly addressed could be attended to by the new Scottish Legal Complaints Commission, or a properly formed independent commission to look into the injustice of the legal profession against client complaints of the past ... as in here: Petition PE1033

However, there is a wider issue here, and that of course is the concept of self regulation itself - a concept which is abused by every profession which is allowed to self regulate itself, depriving the public of any measure of transparency, accountability or honesty in dealing with complaints and poor service.

Taking Self regulation of the legal profession as an example of how professions abuse this right to investigate complaints against their colleagues, it is now a well documented fact that the Law Society of Scotland has produced so much public dissatisfaction with lawyers over the years, new legislation in the form of the Legal Profession & Legal Aid (Scotland) Act 2007 has been introduced to bring much needed reforms, after long & difficult campaigns by those victims who have suffered & continue to suffer injustice at the hands of the legal profession, combined with help from consumer bodies such as the Scottish Consumer Council.

The poor example the Law Society of Scotland have set as a self regulator of their own profession, is true for all the other self regulators, being a good advertisement for an end to self regulation across the board of the professions.

Many of the issues of corrupt self regulation have seen colleague cover up for colleague, and so-called 'lay members' who get themselves on a multitude of similar regulatory committees acting in anything but the public interest which they are supposedly planted on these various self regulating profession's Complaints Committees.

Perhaps a good test of our new Scottish Executive would be whether they will end this insidious culture of self preservation at all costs generated by these professions who are allowed to self regulate themselves totally against the public interest and get by, surviving on the fact they have no credible oversight or accountability to anyone but themselves which is a convenience akin to allowing criminals to judge each other rather than bother sending them to Court.

Why for instance, would anyone argue that a client, who had been through the maze of complaining against a crooked lawyer, or for another example, a crooked accountant, should seek legal representation & advice if they wish to remedy any losses or negligence caused by the failure of the lawyer, accountant, or whichever profession was involved, given the well known facts by all that legal representation is almost impossible to obtain when trying to get a lawyer to sue a lawyer - or even a lawyer to sue an accountant (when many senior members of the legal profession migrate themselves onto such bodies as ICAS, the accountants regulator) and take a hand in giving the same treatment of injustice to clients of accountants which clients of solicitors have experienced for decades at the hands of the Law Society.

A task for the Mr Salmond's new Executive should be to end this corrupt pot of self regulator's power over the consumer, right across the board of the professions, and not to bend to threats or lobbying from those same professions to leave them as they are to go on saving their colleagues from serious client complaints, and even covering up issues involving criminal offences from complaints investigations.

Articles from the Herald & Scotsman to follow :

Scottish legal services watchdog urges profession to improve service
DAVID BLACK June 25 2007

SCOTLAND'S outgoing legal services watchdog has urged the professional bodies to improve their focus on the consumer.

Jane Irvine, the Scottish Legal Services Ombudsman, believes the Law Society of Scotland and Faculty of Advocates must take action before responsibility for complaints monitoring passes to the new Legal Services Complaints Commission.

Commenting on today's publication of her annual report, she said: "There are a number of points highlighted on which both bodies could act now to improve the service they provide to consumers. (They) must address the question of the legitimacy of using different tests - ie criminal and legal - for different types of complaint. I question if the criminal test should be used within a system concerned with regulating professionals and believe we must move towards a civil model, with earlier recognition that practice and conduct must be improved.

As part of this shift, The adoption of mediation as an alternative means of resolving disputes would be an enormously beneficial step forward for the profession and for the public."

Irvine (pictured) also challenged the profession to address the way it deals with complaints about service and fees. "Complaints often arise where fees are taken from client accounts without notice," she added. "In addition, many complaints challenge not just service quality but also the fees charged.

In effect, the consumer is saying they did not receive the quality of service they paid for, yet the profession persists with a system which differentiates the two. I don't think this can be justified."

Report criticises solicitors' 'weak' code of conduct


THE legal profession is still failing to grasp the need for a greater consumer focus and is hampered by a "weak" code of conduct for solicitors, the Scottish Legal Services Ombudsman has warned. In her annual report published today, Jane Irvine urges the profession to "take the initiative" and act now to improve services, before changes are enforced by the new Scottish Legal Complaints Commission, which is due to open next year.

Irvine, whose own post will be abolished when the new commission becomes the single "gateway" for handling service complaints about both solicitors and advocates, suggests a raft of measures that she argues could not only improve services for consumers but also "the standing of the legal profession".

The independent watchdog wants the Law Society of Scotland to draw up "clear, simple and flexible" standards for the profession, to ensure consumers have greater clarity about the standard of service they can expect from lawyers. The society has already set up a working group to set new standards, drawing on its existing code of conduct and guidelines for the profession.

Yet Irvine criticises the existing code as "weakened by lengthy definitions and exclusions" and its practice rules and guidelines as a "patchwork... sprinkled with confusing exclusions".

Neither provides a clear enough framework of quality standards, she says, with the result that "lawyers are regulated against low standards", despite the fact individual firms may set their own higher benchmarks.

Irvine has also challenged the profession to address the issue of the relationship between standards of service and fees charged to clients. Currently, the Law Society will not investigate complaints that relate only to the level of fee charged by a firm.

But Irvine argues that consumers see a clear link between the level of fee charged and the standard of service delivered, and her report highlights the society's "reluctance to consider that a complaint about fees may actually be a complaint about service".

"Legal service complaints often arise where fees are taken from client accounts without notice," she says. "In addition many complaints challenge not just service quality, but also fees charged.

"In effect the consumer is saying that they did not receive the quality of service they paid for, yet the profession persists with a system that differentiates the two.

"I don't think this can be justified, and believe the profession has to recognise the reality of what complaints are actually about."

Irvine also questions whether a "criminal" burden of proof of reasonable doubt should apply during investigation of complaints. The criminal test is currently used by the Faculty of Advocates when investigating all complaints and by the society when looking into misconduct complaints.

She suggests that a civil test would be more appropriate for the regulation of legal professionals. "I particularly believe the professions must address the question of the legitimacy of using different tests - criminal and civil - for different types of complaint," she says.

"I question if the criminal test should be used within a system concerned with regulating professionals and believe we must move towards a civil model, with earlier recognition that practice and conduct must be improved, allied with appropriate outcomes that suit all parties."

Speaking to The Scotsman, Irvine suggested substituting a civil test for a criminal test might make it easier to intervene at an earlier stage, when solicitors start experiencing problems, and before the situation reaches a crisis point.

"If we use a criminal test, it is a very high burden and it means we don't do anything until it's got to a very bad problem," she says. "For example, if you have a solicitor who is stressed and maybe has problems at home and therefore his work goes to pot, if you can get someone early on, you can start bringing someone back into the fold, rather than wait until he has done some awful thing."

In the year 2006-7, the Law Society received 3,623 complaints and 392 of these resulted in a complaint to the ombudsman. Due to a backlog, a total of 529 complaints were managed and 451 were investigated.

A third of complainers said they were dissatisfied with law society processes, 24 per cent were unhappy with the way evidence was used or interpreted and 11 per cent complained of bias.

While acknowledging some areas of good practice by the society - including an "increased willingness to try to resolve difficult issues by dialogue" - Irvine states in her report that the reasons for complaints are consistent with previous years. In an accompanying discussion paper presented to ministers, she concludes: "Overall, the constant theme of letters to me has remained lack of trust in the Law Society of Scotland. Clients simply do not believe an institutional 'members' body can deal with consumer complaints fairly."

Irvine highlights a raft of areas that need to be improved or are causing difficulty for consumers. These include limited resources, that she believes are "preventing resolution of complaints by explanation or conciliation" and "widely differing" standards of investigation reports.

She also criticises confusion over what inadequate professional service actually means, what she terms the society's "ready acceptance" of destruction of files by firms under investigation following a complaint, and the society's "cumbersome decision-making forums".

While the ombudsman's office will be abolished after the commission is set up, Irvine says she remains committed to maintaining the pressure on the profession to drive up standards during the transition.

John MacKinnon, the Law Society's new president, has already said his "priority" for the coming year will be to set standards before the commission opens for business. A working group has been set up and is primed to make recommendations at the society's annual general meeting in March.

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